The Law

The Switch In Time That Betrayed Nine

Veteran Supreme Court reported Jan Greenberg reports what many had speculated—that Chief Justice John Roberts switched his vote on ObamaCare, saving the bill from being declared unconstitutional. Justice Anthony Kennedy, the crucial “swing judge” even tried to get Roberts back on the side of the Court’s conservative bloc, but to no avail.

Chief Justice John Roberts

Chief Justice John Roberts of the United States Supreme Court (AP Photo)

What Roberts did, in other words, was a betrayal of his principles as a judge. Greenberg explains why Roberts switched his vote:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

The problem with Roberts’ switch is that it doesn’t accomplish what he was apparently tempted to do. Yes, right now the left-wing media is praising Roberts for taking their side and saving ObamaCare, but does anyone believe that will last? If Roberts presides over another 5-4 defeat of a major liberal initiative, he’ll be damned and criticized as before. The legitimacy of the Supreme Court will always be called into question by the left so long as the Supreme Court does its job in enforcing substantive limits on the power of the federal government. All Roberts has done is buy some temporary credit.

And that temporary credit comes at the expense of the Constitution. Ostensibly, Roberts’ opinion limits the government’s ability to use the Commerce Clause to justify mandates on individuals. But there is reason to believe that future Courts will not be bound by that language as precedent. The benefit of Roberts’ alleged limitation of the Commerce Clause may not be anywhere near as great as some conservative commentators are making it to be.

Not only that, but the logic used to justify upholding the mandate as a tax is not consistent. That argument was generally rejected by lower courts, and not taken seriously during oral arguments. The whole point of a tax is to raise revenue—which the individual mandate is not supposed to do if it actually works. If you refuse to pay a tax, the government can fine you or put you in jail—yet the individual mandate is not enforceable in that manner. Congress did not intend to turn the individual mandate into a tax, and as much as Congressional intent matters in interpreting a statute, Roberts’ decision contradicts it. The dissent treats Roberts’ arguments on the tax issue with a thinly-veiled contempt—and largely for good reason.

Roberts’ decision comes off as nakedly political—and even Roberts himself seems to want to back away from its full consequences, painting it as a choice that he did not want to make by one he made because the law demanded it. But his legal arguments are so thin that his protestations ring hollow: the argument that Roberts upheld ObamaCare in the vain hopes of preserving the legitimacy of the Court in the eyes of The New York Times seems to be the most likely explanation.

But a Justice of the Supreme Court of the United States, no less the Chief Justice, should not answer to the editorial board of The New York Times. Roberts’ initial vote was the correct one: the individual mandate is an unprecedented intrusion upon the individual liberties of the people of the United States. It is not justified in a system where we have a federal government of limited and enumerated powers. Seven Justices voted that the federal government cannot use federal funding to coerce a state into enacting a federal policy: so why can the federal government use the coercion of taxation to force individuals into supporting a federal policy that would not be otherwise justified under the Constitution? The answer should have been that the federal government can no more justify the individual mandate through taxation than they could demand that individuals quarter soldiers in their homes or pay a tax “penalty.” Both are a naked end-run around the limits placed upon the federal government by the Constitution.

Chief Justice Roberts may have justified his decision by saying that it would preserve the reputation of the Court: but he is wrong. The Court should be above the whims of politics and should act in accordance with law rather than than the opinions of newspaper editorialists. Roberts’ switch on ObamaCare was a betrayal, and however justified it diminishes the legitimacy and the independence of the Supreme Court. That was clearly not the Chief Justice’s intent, but will be the outcome.

Culture, The Law

The Ninth Circuit Hands Same-Sex Marriage A Pyrrhic Victory?

In a 2-1 decision that comes as little surprise, the Ninth Circuit Court of Appeals held that California’s Proposition 8 was unconstitutional. Prop 8 came about after California judges ruled that California’s constitution mandated the recognition of same-sex marriages. A majority of voters in the State of California passed an amendment that gave same-sex couples all of the legal rights of marriages without the use of the title. This lead opponents of gay marriage to sue in federal court to overturn Prop 8. As expected, the district court and the Ninth Circuit went along.

I’m a supporter of gay marriage, although a tepid one. I don’t buy the argument that allowing gay marriage does a damn thing to harm the institution of marriage in this country beyond the massive damage done to it by heterosexual couples over the decades. If we really wanted to restore marriage in this country, we’d make divorces much harder to get. But that has no chance of happening any time soon.

At the same time, the term “marriage” isn’t a term that can be changed on a whim. It has a specific meaning. And the state has an interest in healthy families, which means families where there are two parents who pass along the values necessary for a functioning democracy. If you undermine the family, you undermine society, and you undermine democracy. The decline of the American family is at the foundation of the decline of America, and it’s a serious issue that needs to be fixed.

Even with that as a given, how does denying the right for gay couples to get married fix marriage? If anything, it creates the societal expectation that gay couples should be in stable monogamous relationships and should raise healthy and well-adjusted children. That, in my book, is a good thing for society. Rather than marginalizing homosexuality, we’d be better off mainstreaming it.

Why The Ninth Circuit Was Wrong

That being said, I think the Ninth Circuit was dead wrong in overturning Proposition 8. Two unelected federal judges have absolutely no business writing the social policy of a state against the express will of the voters. The same would be true if California voters had recognized gay marriage and a federal appeals court told them that they could not. The federal government, no less the federal judiciary, has no business deciding what is a matter dedicated to the states.

Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals

Proposition 8 could have been undone the same way it was enacted: by the voters. That’s the way it should be overturned. The Ninth Circuit got it wrong in saying that the effect of the law was too rash and not a “cautious” approach. By taking the question away from the legislature and the judiciary, Proposition 8 forced the question to become one of popular will: and there’s no reason to suggest that popular will isn’t already changing. It’s not even a matter of rights: gay couples in California had all of the same legal rights as married one, as the Ninth Circuit opinion took pains to point out. But instead of finding that to be in the favor of Proposition 8, the Ninth Circuit found that to be a mark against it.

That is deeply problematic for acceptance in gay marriage in this country. It basically means that once a state recognizes civil unions, it really is a “slippery slope” towards full-on recognition of same-sex marriage. It makes it a binary proposition for most states—either deny all marriage rights to gay couples or redefine marriage entirely. If the issue is forced like that, many states will just deny all marriage rights.

Moreover, this gives a new push for the Federal Marriage Amendment. If states are going to be forced to accept gay marriage against the will of the voters, it’s possible that the voters will take the matter into their own hands.

Why The Supreme Court Will Affirm Anyway

Obviously, this is a question that the Supreme Court will be taking up in this Term. And Judge Reinhardt, who wrote the opinion, did something very smart for someone in his opinion: he wrote the opinion with one particular Justice in mind: Justice Kennedy.

Ultimately, even though I strongly disagree with the Ninth Circuit’s decision, I would bet that it will be affirmed by the Supreme Court in a 5-4 decision. Justices Kagan, Sotomayor, Breyer, and Ginsberg will vote to affirm. Justices Alito, Roberts, Thomas, and Scalia are sure votes against (although it’s possible that either Alito or Roberts could vote to affirm). Justice Kennedy will write the opinion. Even though a petition for certiorari hasn’t even been filed yet, the writing is already on the wall.

The reason is because Justice Kennedy wrote the majority opinion in Romer v. Evans, the case that overturned an amendment to the Colorado Constitution that was ostensibly written to prevent special rights being granted on the basis of sexual orientation. Justice Kennedy’s opinion struck down the amendment, holding that it violated the Equal Protection Clause of the Fourteenth Amendment. Judge Reinhardt’s decision striking down Prop 8 also was based on the Equal Protection Clause of the Fourteenth Amendment.

It would be difficult for the Supreme Court to overturn the Ninth Circuit without scrapping Romer in the process. I don’t see Justice Kennedy undercutting his own decision any time soon. With the four “liberal” justices and Kennedy, Prop 8 is almost certainly to be DOA when it gets to the Supreme Court.

Getting Civil Rights Wrong

In the end, the problem I have with the Ninth Circuit’s decision isn’t really the outcome: I will shed few tears over Prop 8. The problem is the process. Not every odious law is a violation of the U.S. Constitution. We have a federal government based on limited, enumerated powers. None of those include telling other states how they should or should not define marriage.

The Ninth Circuit has basically said that we no longer have a government “by the People, for the People.” We have a government that’s “by the People unless the judiciary disagrees, in which case the judiciary wins.” That’s a dangerous precedent to set.

This isn’t at all like the civil rights movement of the 1950s and 1960s. The advocates of same-sex marriage have plenty of recourse at the ballot box and in the court of popular opinion. They’ve won plenty of battles there. The fact that they’ve lost some of those battles doesn’t justify saying that the federal government must step in and take away the right of the voters to choose their own paths. Proposition 8 may be an odious and vile law, but there are plenty of laws that I consider odious and vile. The remedy for those laws is to get the people to overturn them, not to make the whole country less democratic. This isn’t a case where same-sex couples are denied public accommodations. Proposition 8 granted same-sex couples every right of marriage but the name—but that wasn’t enough for the Ninth Circuit. Which indicates that this really isn’t about legal rights, but moral ones.

This decision was ostensibly based on the law, but at the end of the day it was one in which two judges decided that they think that the choices made by California voters were morally wrong and they wanted a different choice. Those two judges may be right, maybe it is morally wrong to deny the moniker of “marriage” on committed same-sex marriages. But it’s not their call to make. That’s what being a nation of laws rather than men implies—and if you don’t like it, then work to get the law changed.

The fact is that full legal recognition of same-sex marriage was probably inevitable anyway. But if the Supreme Court does what it is likely to do, the result could well be a Federal Marriage Amendment that puts the question back into the hands of the people. That would be a major setback for the cause of same-sex marriage, but when you take power away from the people and invest it in unelected judges, you will create popular blowback. The real solution would have been to use the power of our democracy, to speak out, and to get the voters of California to overturn Prop 8 on their own accord. In the end, the Ninth Circuit’s decision may have been a victory for same-sex marriage, but it may also turn out to be a Pyrrhic victory in the end.

Politics, The Law

Analyzing The Sotomayor Supreme Court Nomination

President Obama has picked Judge Sonia Sotomayor of the Second Circuit as his nominee to replace David Souter as Associate Justice of the United States Supreme Court. Judge Sotomayor was considered the front-runner for the spot, along with Judge Diane Wood, Homeland Security Secretary Janet Napolitano, and Solicitor General Elena Kagan.

Ilya Somin has a detailed critique of Judge Sotomayor’s record and finds her minimally qualified. As he puts it:

…[H]er record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee’s qualifications are likely better than Harriet Miers’ were; but Miers’ nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor’s.

It would be hard to find a less qualified nominee than Harriet Miers, but Sotomayor does not strike me as a strong candidate. She is, to be sure, qualified for the position, but a seat on the Supreme Court is the pinnacle of the American legal profession. The Supreme Court has housed some of the greatest minds in the practice: Oliver Wendell Holmes, Felix Frankfurter, Hugo Black, Robert Jackson, and even the current Court has incredibly talented judges such as Stephen Breyer (on the “left”) and Antonin Scalia (on the “right”). Does Sotomayor match up with those legal minds? Her record, at least on a cursory glance seems to suggest not.

Judge Sotomayor is not widely considered to be an expert or leading light on a particular field of law, as Stephen Breyer was in administrative law. She has not shown the intellectual caliber of someone like Antonin Scalia or Ruth Bader Ginsberg. Instead, she seems to have been picked because she is a female Hispanic with an interesting life story that meets the basic qualifications.

Now, that is not to say that Judge Sotomayor is an intellectual lightweight—generally one does not get nominated for a Circuit Court of Appeals or even graduate from a top-tier law school without possessing a strong intellect. Moreover, Judge Sotomayor is no less qualified than the Justice she is replacing—which is damnation by faint praise given that David Souter was the least intellectually gifted and least competent member of the Court.

It should not be surprising that Obama picked a left-wing candidate. That part was a given. President Obama was not going to pick out a candidate more conservative than the decidedly liberal Justice Souter. Her personal ideology should not be at issue: Justices Breyer and Ginsberg were both strongly liberal judges, but were well-qualified nominees whose nominations were consented to by the Senate in a bipartisan manner.

However, as Prof. Somin adeptly points out, her judicial philosophy is a legitimate reason for combatting her nomination:

I am also not favorably impressed with her notorious statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.

The role of a judge is to dispassionately and fairly apply the law without preference or bias. It remains an open question whether Judge Sotomayor will follow the law or undermine the rule of law by giving preference to those based on gender, race, class, or her own personal feelings. If it is the case that she will, respect for the rule of law demands that the Senate refuse to consent to her nomination.

Judge Sotomayor was not the worst pick that President Obama could have made (Secretary Napolitano was the least qualified of the four contenders), but Judge Sotomayor was not as qualified as Judge Wood or Elena Kagan. However, politically, Sotomayor may be the more confirmable.

In the end, President Obama could have picked a legal heavyweight—but instead he picked someone based largely on personal rather than judicial qualities. Judge Sotomayor may be qualified to sit on the Court, but it is unlikely that she will be one of its brightest stars. Given that she is replacing the execrable Justice Souter, it is hard to see her being any worse. Still, there are liberal candidates, and liberal female candidates that President Obama could have nominated that would be stronger picks for the Court. It is likely that Judge Sotomayor will be confirmed, and probably on a bipartisan basis, but she is not the kind of distinguished jurist that will make a strong contribution to American jurisprudence. She will, however, be a reliably liberal vote on the Court, which seems to be President Obama’s primary criterion for picking a nominee.

The Law

A Victory For Individual Rights

Today’s Supreme Court opinion in District of Columbia v. Heller is a landmark decision in that it restores the original individual rights interpretation to the Second Amendment. What is frustrating about Heller is what it doesn’t say. Justice Scalia hinted at a standard of review that’s quite probing—but could also be something less than the usual strict scrutiny given to other constitutional rights. Heller leaves the door open for more cases in the future.

For all the commentators calling Heller “judicial activism,” it’s anything but. It restores the original intent of the Framers in drafting the Second Amendment. In fact, even Justice Stevens admits in his dissent that: “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals.” What is most intriguing from a lawyering standpoint is that Justice Stevens’ dissent is written on Scalia’s grounds. Only Justice Breyer uses the typical policy-laden arguments of Court liberals. Justice Stevens’ dissent, like Scalia’s majority opinion, is based almost solely on the question of original intent.

Does this suggest that originalism will be the dominant mode of constitutional interpretation used by the Court? It seems doubtful, but the fact that Stevens waged his war on Scalia’s battlefield is interesting.

Stevens’ dissent was quite well done, but ultimately Scalia’s dissent seemed to have a firmer grasp on history. The language of the Second Amendment is less than clear, but the idea that the phrase “keep and bear arms” is confined solely to having weapons to be used for the militia seems historically and linguistically obtuse. Justice Scalia puts it wryly:

In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Scalia knows how to twist the knife a bit.

The majority opinion hints that the Second Amendment applies to the states as well. What’s odd about Heller is that the Court never discusses the issue of how D.C. should be treated. That issue was a major issue in the D.C. Circuit, but does not get raised by the Court. It is possible that the Court will settle the issue of incorporation in a later case.

And make no mistakes, there will be later cases. The Court has only provided one step, and the various sides will end up hashing out the rest.

Still, this is a good day for our Republic. Once banished, constitutional rights rarely return. To see the Court affirm that the Second Amendment recognizes an individual right to keep and bear arms is to see the Court reaffirm the values of our Founders. They incorporated the common-law right of self defense into the founding of this Nation, and for good reason. The Court has not made law, nor have they violated principles of stare decisis. They have done what the Court should do—”say what the law is.” Marbury v. Madison, 5 US 137, 177 (1803). The law is that individual American citizens have the right to keep and bear arms. That conclusion is not a conclusion of five Justices, but an affirmation of what the Bill of Rights says. Those who take issue with that conclusion should not take umbrage at the Court, but at the Founders who made that decision in 1783.

The Law

The Second Amendment’s Last Stand

This morning, the Supreme Court will hand down its decision in District of Columbia v. Heller, a case which will likely decide as a matter of law whether the Second Amendment creates an individual right to keep and bear arms.

To follow the Court’s session, SCOTUSblog‘s live coverage will provide instant results and links to the opinions.

My prediction: a clear majority of the Justices will decide for the individual rights interpretation. A closer majority will decide the issue of what standard of review should be used—and there may not even be a majority on that. Either the standard of review will be narrowly decided to be strict scrutiny, or we’ll see a plurality opinion that allows for some reasonable regulation of firearms along the lines of the Solicitor General’s amicus brief.

Gun owners will be happy that the Court has recognized the Second Amendment for what it is—but if the standard of review is too lenient, then it may be less of a victory than some had hoped. My guess is that the Roberts Court is not about sweeping changes, and will temper the individual rights aspect of the decision with than a less than searching standard of review.

UPDATE: Affirmed 5-4. Individual right upheld. More this evening.

The Law, War On Terror

“This Nation Will Live To Regret What The Court Has Done Today”

One of the professors at my law school teaches a course on “atrocious cases”—and today he will have something new to add to his syllabus. The Supreme Court handed down a ruling in the case of Boumediene v. Bush that represents one of the most blatant examples of judicial activism of our time. The Supreme Court, or at least five of its Justices, have decided that an alien outside the territory of the United States has the right to the writ of habeas corpus.

Chief Justice Roberts, in his dissent (joined by Justices Alito, Thomas, and Scalia) explains why this decision is both overly broad but also unsatisfying to all:

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine-through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Justice Scalia’s dissent was blistering—even by his standards:

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary. “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).

Turns out they were just kidding.

Indeed they apparently were. Like Lucy pulling the football from Charlie Brown, the Supreme Court has told both the elected branches of government that they call the shots. If there were some strong constitutional logic behind this decision it would be one thing. But the majority opinion even admits that the law is at best murky on the issue of whether a foreigner has ever been granted habeas rights when they are outside the sovereign territory of the United States (and even that contention flies in the face of the weight of authority that decisively holds that they have no access to the writ). Undeterred, the Court chooses to dramatically rewrite settled precedent nonetheless. If prior cases had eviscerated and overruled the key Supreme Court precedent in Johnson v. Eisentrager, 339 U.S. 763 (1950), this decision has rendered it a nullity.

The goal of our courts is not to make the law, but to follow the Constitution. This decision is not grounded in the jurisprudence of the Constitution, but of the whims of five. Justice Scalia puts it bluntly, but accurately:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today.

I certainly hope that it will, but if certain members of the judiciary have their way it will be as a tyranny of the few. Our country is, and should be, a nation of laws, not men. It is sad that we are elevating the whims of five Justices over the will of those who are responsible to the people.


Justice Stevens And The Imperial Judiciary

Jonah Goldberg has a perceptive column about the peril of judicial activism based on the recent Supreme Court ruling on capital punishment, Baze v. Rees, 553 U. S. ____ (2008). In a separate concurrence, Justice John Paul Stevens makes an argument that demonstrates a profound disrespect for the rule of law in this country:

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring).

(Emphasis mine)

Now, Justice Stevens does not dispute that Supreme Court precedent makes it quite clear that the death penalty is constitutional. And indeed, one can make a perfectly legitimate argument that the Supreme Court got it wrong and that the death penalty is a violation of the Eighth Amendment’s ban on “cruel and unusual” punishment. Such an argument is almost certainly wrong and is unlikely to prevail, but it’s not an unreasonable argument to make.

Justice Scalia points out what is unreasonable about Justice Stevens’ argument:

As JUSTICE STEVENS explains, “‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.

This is about as sharp a criticism as you’ll find between Supreme Court justices. Goldberg puts it all into context:

Supreme Court justices must “solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.”

Note the bit about doing right to poor and rich alike. Feeling sorry for the poor guy who violates the Constitution or the law has no role in how a Supreme Court justice is supposed to make a decision. Legislators can write laws based on empathy. They can invoke their pet theories about “how the world works.” They can even, as Justices Stephen Breyer and Ruth Bader Ginsberg are fond of doing, consult foreign laws and court decisions in their efforts to make a more perfect union. But Supreme Court justices are supposed to decide what the written law requires, not pick winners and losers based upon some sense of noblesse oblige. That’s why all of those statues of Lady Justice show her standing blindfolded, not bent over kissing the boo-boos of the unfortunate and the downtrodden.

In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws? Is this to be a country where justices serve as a reliable backstop against encroachments upon the constitutional order, or is this to be a country where the most undemocratic branch of government serves as the tip of the spear for such intrusions?

The judiciary is supposed to be “the least dangerous branch” of government. The proper role of judges in our democratic system is not to make law, but to decide what the law is. That means that judges are supposed to be inherently limited to working with the text of the Constitution and statutes. The Supreme Court is not supposed to be a roving agent of justice that goes looking to right problems. That is the role of the legislature, a body which is directly accountable to the people.

If we have a system in which the judiciary can start overturning the rules of democratically-elected representatives based not on the Constitution, but on their own feelings then we have become not a democracy, but an enlightened despotism. Such power is too easily abused, which is why the Founders of this nation specifically did not want that to happen.

This nation is based upon the rule of law, not the rule of men (or women). Justice Stevens may be entirely right that the death penalty doesn’t work, but as Justice Scalia rightly observes, that is a question for the legislature, not the courts. Our system of justice must never be allowed to become a replacement for our system of government, and Justice Stevens’ comments displays exactly the sort of imperialist thinking that harms the rule of law in this country.


Medellin, International Law, And The Supreme Court

The SCOTUSblog has some interesting discussion of the recent Medellin v. Texas decision by the Supreme Court. The Bush Administration sought review of a Texas inmate’s death sentence after the Mexican government demanded that the government follow a decision by the International Court of Justice in the Hague.

The popular press is spinning the result as a defeat for the Bush Administration, which may be technically correct, but that misses the point. For one, it’s a defeat for Bush trying to put a stop to an execution in Texas, which seems a little out of character, and secondly the more important legal question has to do with how federal courts should interpret international law.

The International Court of Justice held in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 that the US had violated the Vienna Convention on Consular Relations by not informing 51 Mexican nationals in US jails of their rights under the Vienna Convention. The Court, in another case, found the opposite—that the Convention was not violated and that the states could use their own rules. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The Bush Administration issued an executive order that told the states to uphold the ICJ’s Avena decision.

The Court, quite rightly, rejected this approach. Chief Justice Roberts’ decision makes it quite clear that unless Congress has said otherwise, ICJ cases like Avena do not have the force of federal law. In 1985, the United States exercised its rights under the Optional Protocol to the Vienna Convention and did not consent to the jurisdiction of the International Court of Justice.

This may seem a bit confusing, as individuals can’t opt out of laws in the United States, but these sorts of arrangements are common in international law. States can consent or not to the jurisdiction of the International Court of Justice under the Vienna Convention, or they can also pick and choose what categories of cases it will choose to follow based on different treaties. Originally, the U.S. chose to submit to the ICJ on Vienna Convention claims, but in 2005 the U.S. opted out of those claims.

Chief Justice Roberts gets to the meat of the issue here:

No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

The Court held that this was not such a case, and that unless Congress explicitly says that the Avena decision is also federal law, the Bush Administration can’t force the states to follow it.

What’s interesting about this case is how it’s vastly different from how we think of the Court operating. The “conservative” Justices voted against the Bush Administration, along with Justice Stevens. The “liberal” Justices voted to uphold the Bush Administration’s decision. It just goes to show how the whole “liberal/conservative” makeup of the Court really isn’t that accurate. Justice Scalia, the bête noir of liberal interest groups hammered the Bush Administration over detainee rights in Hamdan. In several criminal law cases, you find Justices Scalia and Ginsberg on the same page agreeing on the limitations on police discretion.

The Court is a lot more complex than people seem to think, and even a truly controversial case like Bush v. Gore is not as straightforward as people think. Cases like Medellin exhibit how our usual preconceptions of the Court don’t always match the reality. For as much as we talk about the politicization of the Supreme Court, the “conservative” Justices are hardly lapdogs for Republican Administrations, and the “liberal” justices are not always attack dogs either. The real question is how the individual Members of the Court interpret the law, and Medellin is a case where a strict construction of precedent goes against the Bush Administration and a “liberal” reading of federal law would support it.

The Law

The Supreme Court Hears Second-Amendment Case

Tomorrow, the Supreme Court will hear oral arguments in District of Columbia v. Heller (07-290), a case which may see the Supreme Court determining whether or not the Second Amendment confers an individual right to own firearms.

The ScotusWiki has all the briefs and amici on the case. Unsurprisingly for a case of this importance, there are plenty of amicus briefs on both sides.

Ultimately, what this case may come down to is the appropriate standard of review. The Department of Justice concurs in the idea that the Second Amendment does give an individual right. However, the amicus brief for the United States argues that the standard of review should be less categorical than the one suggested by the Court of Appeals:

Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions
of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.

Reading the tea leaves, I think it’s quite possible that the Supreme Court will follow the argument of the United States in this case. A holding that the Second Amendment does confer an individual right to gun ownership, but that a restriction on that ownership must merely pass something like a rational basis test, seems a very likely outcome to me. This Court is a very conservative court—and I mean that in the dictionary rather than the political sense. Chief Justice Roberts does not seem inclined to upset the apple cart and sweep away a wide variety of state and federal statutes by having the Court issue a broad holding. Rather, it seems more likely that the Court will remand this case back to the Court of Appeals for rehearing based on a new set of criteria.

If that happens, it’s not going to be an outright win for anyone. The NRA and gun-owners groups will not be happy with a standard of review that’s likely to see most restrictions on gun ownership upheld. Anti-gun groups like the Brady Center are not going to be happy with the Court saying that the Constitution protects the rights of gun owners. Yet in terms of the law, it’s the best way for the Court to avoid making sweeping changes in policy one way or the other.

The Second Amendment does give individuals the right to own firearms. The history and intent of the Second Amendment is difficult to rationally interpret in any other way. I don’t see the Court being split on that issue. The real issue may be the standard of review, and if the amicus brief from the United States has as much weight with the Court that I suspect it will, my rough guess is that this decision will result in a remand to the Court of Appeals with an instruction to determine whether the District of Columbia’s gun regulations meets the appropriate standard of review. It could well be that the result of this process is a confirmation that the Second Amendment does protect an individual right, but that the D.C. gun laws don’t violate the standard of review. If so, this controversy isn’t going to be settled by this case, but will continue on for some time.

The Law

Supreme Court Grants Cert In Second Amendment Case

The Supreme Court has decided to grant a writ of certiorari in the case of District of Columbia v. Heller which involves the DC gun ban. For the first time in 60 years, since United States v. Miller, the Supreme Court will visit the issue of whether the Second Amendment protects an individual right to own firearms. As always, The Volokh Conspriracy will be following the case closely, and has some excellent commentary on what all of this means.

As seems to be the case with this Court, it all comes down to Justice Kennedy (now in the spoiler position formerly occupied by Justice O’Connor). Justices Scalia, Thomas, Alito and Chief Justice Roberts are almost certain to advocate for the individual right position. Justices Ginsberg, Breyer, Souter and Stevens are highly likely to come down on the side of the Second Amendment being a collective right for the “militia.”

I think Orin Kerr’s prediction is right: Justice Kennedy will endorse an individual rights view of the Second Amendment but would support a relatively lax standard of review for reviewing restrictions on firearms. What that means is that he’d be likely to support regulations which have only a rational relationship with some state interest rather than requiring strict scrutiny of state gun laws.

A holding that the Second Amendment does confer an individual right to fireamrs, but that any law that has only a rational basis to some state interest would be a Pyrrhic victory for gunowner’s rights groups. It wouldn’t do much to change the status quo, and it would still allow for significant restrictions on gun owners. Instead of settling the issue, it would probably cause more lawsuits as gunowners and groups like the NRA litigate exactly what regulations do and do not infringe upon the Second Amendment.