Judicial Politics Final

Judicial Activism

* History of Judicial Activism* - Emerged as part of complex tradition of judicial critique I. Half-century before 1937 - Lochner era Court invented constitutional right to contract and granted full-faith-and-credit protection to interstate corporations - large-scale business to operate with few regulations Court restricted labor interests and promoted industrial development and expanded "federal general common law" from commercial law to torts

Judges on Judging, Part III, pp 151-158

*Chapter 14 The Path of Law Oliver Wendell Holmes Jr. Justice, Supreme Court of the United States (1902- 1932) and Justice of the Supreme Court of Massachusetts (1882 - 1902)* -People pay lawyers to protect them against the unknown circumstances that are only known by the powerful judges who have the full force of the state on their side - The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. -The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. -Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. -I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the - 1.) You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. -If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. -The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. -views. I know of none which are not easy to answer, but what I am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. -We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought. -The next thing which I wish to consider is what are the forces which determine its content and its growth. -You may assume, with Hobbes and Bentham and Austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the Zeitgeist, or what you like. -The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. -The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. -The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. -Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. -I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions. -Now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. -The development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. It is perfectly natural and right that it should have been so. -In regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. -He will not mention the study of law as it is mentioned in text books, he is simply giving his theory of how the law should be ran -architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. -An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Constitutional Authority

*United States v. Carolene Products CO (1938)*

Judicial Process, chap. 4, pp. 72-85

The Burden of Proof Is on the Petitioner - Another weighty principle of self-restraint is the general agreement among the nations jurists that an individual who would challenge the constitutionality of a statute bears the burden of proof o Laws and official deeds are all presumed to be legal unless and until proven otherwise by preponderance of the evidence - The question of burden of proof = which side has the bigger job to perform

Constitutional Authority

*2. DEPARTMENTALISM* - Lincoln opposed Dred Scott which held that Congress could not ban slavery in American territories. Lincoln opposed as a "political rule" binding on the voter, members of Congress, or the president. Not bound by a political rule that will enlarge and spread evil and establish foundation for spreading it into the States. - Thomas Jefferson and Andrew Jackson asserted independent presidential authority to interpret Constitution; also, FDR and Reagan. - Supreme Court may make constitutional decisions but these rulings do not fix meaning of Constitution. Republicans in Congress banned slavery in the territories and District of Columbia despite Dred Scott. - Jefferson - Theory of Coordinate Review - judicial supremacy not explicit in Constitution nor implied. Article VI does not say elected officials are bound by Supreme Court decisions on constitutional questions. - Judicial supremacy may be antithetical to constitutionalism and democracy. - Jefferson: "Any institution vested with the final authority over constitutional disputes exercises 'despotic' power." - Popular sovereignty requires people have control over interpretation and enforcement of constitutional law.

Judicial Activism

* Judicial Activism and Dred Scott? * III. Dred Scott - struck down Missouri Compromise provision that banned slavery in the northern territories and held that free descendants of African slaves could not be "citizens" under the U.S. Constitution. 1. Court's doctrinal logic implied severe oppression of all American blacks and historical assumptions cast the Constitution as "proslavery document." 2. Court addressed issues not properly presented and rendered judgment without orthodox legal authority 3. Influenced by two Justices' communications with President-elect James Buchanan 4. Upset precarious sectional compromise concerning slavery involving itself in racial politics

Judicial Activism

* Judicial Activism and Lochner?* 1. Bad results favoring powerful and established interests over progressive ones? 2. Improper methods inferring constitutional rights and common-law powers without support from orthodox authorities? 3. Court's errors were institutional and should leave policymaking to other governmental actors? II. Post-Civil War (1865-1885) - individual rights subservient to federal military power and undermined Civil War Amendments steps toward constitutional liberty and equality. The Slaughterhouse Cases - 5-4 decision (1873) - Court held to narrow interpretation of the Fourteenth Amendment - did not restrict the police powers of the state. The Fourteenth Amendment's Privileges or Immunities Clause affected only rights of U.S. citizenship, not state citizenship, so butchers' rights not violated.

Constitutional Authority

*1. Judicial supremacy* - Supreme Court is ultimate authority for resolving all constitutional disputes. - Most widely shared understanding, particularly since Civil War. - "The federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has...been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." Cooper v. Aaron (1958)

Constitutional Authority

*3. Compact theory* - Each state retains sovereign power to determine the meaning of constitutional provisions. Constitution is analogous to a treaty. - Virginia and Kentucky Resolutions of 1798 - states can determine constitutionality of Alien and Sedition Acts. Jefferson: "The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress." - Justice Oliver Wendell Holmes: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void," but "I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states." 1902-1932 - Associate Justice U.S. Supreme Court

Constitutional Authority

*4. Executive-legislative supremacy* - Reject judicial power to declare laws unconstitutional - John Randolph (VA) in 1802 stated: "The decision of a Constitutional question must rest somewhere," and in a democratic republic that authority was best "confided to men immediately responsible to the people" rather than "those who are irresponsible." - Abolish judicial review to foster a populist constitutional law to distribute constitutional responsibility throughout population. Mark Tushnet - Do not need judicial review to be constitutional democracy. Blackstone: "To set the judicial power above that of the legislature...would be subversive of all government."

Judicial Process, chap. 4, pp. 72-85

*A definite Controversy Must exist* - There must be a legitimate adversary who have met all the technical legal standards to institute a suit, the dispute must concern the protection of manful, nontrivial right or the retention or redress of wrong that directly affects the parties to the suit - Three corollaries to this general principle breathe life into its rather abstract admonitions o that are hypothetical or have not caused an authentic clash between adversaries ♣ Dispute must be real and current o 2.) The parties to the suit must have proper standing, the person bringing the suit must have suffered a direct and significant injury ♣ As a general rule a litigant cannot bring a claim on others behalf (except for parents or minors called class action) ♣ The alleged injury must be personalized and immediate not part of some generalized complaint o 3.) The courts ordinarily will not hear cases that have become moot, when the basic facts or the status of the parties has significantly changed in the interim between when the suit was filed and when it comes before the judge ♣ the death of a litigant can declare a case moot o Some federal legislative courts such as the Court of Federal Claims will give advisory opinions o American judges are also empowered to render declaratory judgments which define the rights of various parties under a statute, will, or contract. ♣ Given this authority under the Federal Declaratory Judgment Act of 1934

Judicial Process, chap. 4, pp. 72-85

*A plea must be specific* - Another constraint on the judiciary is that judges will hear no case on the merits unless the petitioner is first able to cite a specific part of the Constitution as the basis for the plea. -In an effort to improve some of its poorly rated public school systems, the state of Ohio enacted its Pilot Project Scholarship Program, which provides financial assistance to families in any Ohio school district that is or has been "under federal court order requiring supervision and operational management of the district by the state superintendent." -Furthermore, of the 3,700 students who participated in the scholarship program, 96 percent enrolled in religiously affiliated schools. In 2002 this program was challenged in the Supreme Court by those who argued that this flow of government aid to schools with a religious affiliation violated the First Amendment's ban on governmental "establishment of religion." - Ultimately the Supreme Court, in a divided vote, disagreed with the petitioner, arguing that the aid to religion was indirect rather than direct, because the government money went primarily to the parents. But no one could deny that the original petitioners had relied on a specific portion of the Constitution (the Establishment -Despite what has just been said, in the real world this principle is not as simple and clear-cut as it sounds, because the Constitution contains many clauses that are open to a wide variety of interpretations. -The United States is not the only country with a federal Constitution that contains ambiguous wording and potentially conflicting clauses to which judges have felt free to give new and imaginative meanings. For instance, Article 40 of the Irish Constitution "guarantees liberty for the exercise" of the rights of citizens "to express freely their convictions and opinions" and "to assemble peaceably without arms."

Constitutional Authority

*Allocating Constitutional Authority* Four views allocate constitutional authority: 1.) Judicial Supremacy 2.) Departmentalism 3.) Compact Theory 4.) Executive-Legislative Supremacy

chap. 6, pp. 117-118

*An Appraisal of the Statistics* -Several Conclusions are appropriate -1.) Federal judges in the US are an elite within elite, they come from upper or upper-middle-class families that are politically active and have a tradition of judicial service -The evidence points to the to subtle and complex caueses of the discrepancy between federal judges -Legislation has never been passed forbidding non-Anglos to wear the black robe. But laws, traditions, and unwritten codes have kept them from entering the better law schools, from working in the more prestigious law firms and corporations, and from making the kind of social and political connections that may lead to nomination to judicial office. -Likewise, no statutes have excluded the children of the poor from consideration for a seat on the bench. But few youngsters from impoverished homes can afford expensive, high-quality colleges and law schools that would provide the necessary training and contacts. -Also, traditionally, many more young men than young women were encouraged to apply to law school. - Even when presidents became more interested in diversifying the bench, these forces proved to be a hindrance to these efforts. In the middle of his presidency, Jimmy Carter had to reevaluate the extent of the experience his nominees would have, because he found that qualified women and minorities often did not have the same extensive experience as their white male counterparts. Because they tend to come from the same kinds of families, go to the same universities and law schools, and belong to religious organizations, clubs, and societies that uphold similar values, federal judges generally are much more alike than they are different. - There may be Democrats and Republicans, former defense attorneys and former prosecutors on the bench, but to a significant degree virtually all play the game by the same rules. -The fact that the recruitment process produces a corps of jurists who agree on how the judicial game should be played is the primary reason why the loosely organized judicial hierarchy does not come flying apart. -It is a key explanation for the predictability of most judicial decisions. The judicial machinery runs as smoothly and consistently as it does not because of outside watchdogs or elaborate enforcement mechanisms but because the principal participants largely share the same values and orientations and are working to further similar goals.

Judicial Activism

*An Intellectual History of Judicial Activism - Craig Green (2008)* - Arthur Schlesinger, Jr. - 1947 Fortune magazine article titled, - "The Supreme Court: 1947" coined term "judicial activism." - "Imperial Presidency" - 500-page book - "Judicial Activism" - 14-page article

Judicial Process, chap. 4, pp. 72-85

*Appellate Courts Rule on Legal— Not Factual— Questions8 - These courts will generally not hear cases if the grounds for appeal are that the trial judge or jury wrongly amassed and identified the basic factual elements of the case o It is not that the trial judges and juries always do a perfect job on making factual determinations, rather they are believed to be closer, sensorial and temporarily to the parties and physical evidence of the case - Appellate courts will hear appeals under the clearly erroneous rule - that is when the petitioner contends that the trial courts determination of the facts was obviously and utterly wrong o appellate courts may be willing to review an administrative agencies factual determination that were allegedly made without substantial evidence

Judicial Process, chap. 4, pp. 72-85

*Beneficiaries May Not Sure* -A third aspect of judicial self-restraint is that a case will be rejected out of hand if the petitioner has apparently been the beneficiary of a law or an official action that he or she has subsequently chosen to challenge. -Suppose that Farmer Brown has long been a member of the Soil Bank Program (designed to cut back on grain surpluses). Under the program, he agreed to take part of his land out of production and periodically was paid a subsidy by the federal government. -After years as a participant, he learns that his lazy, ne'er-do-well neighbors, the Joneses, are also drawing regular payments for letting their farmland lie fallow. The idea that his neighbors are getting something for nothing starts to offend Farmer Brown, and he begins to harbor grave doubts about the constitutionality of the whole program. -Armed with a host of reasons why Congress had acted illegally, Brown challenges the legality of the Soil Bank Act in the local federal district court. As soon as it is brought to the judge's attention that Farmer Brown had himself been a member of the program and had gained financially from it, the suit is dismissed. One may not benefit from a particular governmental endeavor or official action and subsequently attack it in court.

Judges on Judging, Part II, pp. 126-131

*Chapter 12 The Dissent A Safeguard of Democracy William O. Douglas Justice, Supreme Court of the United States (1939- 1975)* -All of us in recent years have heard and read many criticisms of the dissenting or concurring opinion. Separate opinions have often been deplored. Courts have been severely criticized for tolerating them. And that is why I rise to their defense. -"I think you will find after you have been on the bench for a while that in a great majority of the cases, perhaps in two-thirds of them, the judges will ultimately reach agreement and announce opinions that are unanimous. But in at least a third of the cases there will be dissents— no matter how carefully the judges were chosen— whether one President or several Presidents selected them." -"I think you will find after you have been on the bench for a while that in a great majority of the cases, perhaps in two-thirds of them, the judges will ultimately reach agreement and announce opinions that are unanimous. But in at least a third of the cases there will be dissents— no matter how carefully the judges were chosen— whether one President or several Presidents selected them."

Judges on Judging, Part III, 159-162

*Chapter 15 The Judge as a Legislator Benjamin N. Cardozo Justice, Supreme Court of the United States (1932- 1938) and Justice, New York Court of Appeals (1917- 1932)* -Few rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end. If they do not function, they are diseased. If they are diseased, they must not propagate their kind. -Rules derived by a process of logical deduction from pre-established conceptions of contract and obligation have broken down before the slow and steady and erosive action of utility and justice. -Not the origin, but the goal, is the main thing. -The rule that functions well produces a title deed to recognition. Only in determining how it functions we must not view it too narrowly. We must not sacrifice the general to the particular. -Law is, indeed, an historical growth, for it is an expression of customary morality which develops silently and unconsciously from one age to another. - But law is also a conscious or proposed growth, for the expression of customary morality will be false unless the mind of the judge is directed to the attainment of the moral end and its embodiment in legal forms. - In the practical administration of justice, Truth will seldom be decisive for the judge. . . . The perception of objective right takes the color of the subjective mind. -My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. -One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. - Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. -If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. -None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process being legislative, demands the legislator's wisdom. -The difference from age to age is not so much in the recognition of the need that law shall conform itself to an end. It is rather in the nature of the end to which there has been need to conform. -You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If - Their conclusions must, indeed, be subject to constant testing and retesting, revision and readjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom.

Judges on Judging, Part III, 163 - 171

*Chapter 16 The Notion of a Living Constitution William H. Rehnquist Chief Justice, Supreme Court of the United States (1986- 2005) and Associate Justice, Supreme Court of the United States (1972- 1986)* -It is not an easy question to answer; the phrase "living Constitution" has about it a teasing imprecision that makes it a coat of many colors. -At first blush it seems certain that a living Constitution is better than what must be its counterpart, a dead Constitution. -The first meaning was expressed over a half-century ago by Mr. Justice Holmes in Missouri v. Holland2 with his customary felicity when he said: -When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. = Living constitution defition -Those who framed, adopted, and ratified the Civil War amendments4 to the Constitution likewise used what have been aptly described as "majestic generalities" -Where the framers of the Constitution have used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen. -Another definition of Judicial review comes from a brief form the US district Court on behalf of state prisoners asserting that the conditions of their confiment offended the US constitution, they wrote: " We are asking a great deal of the Court because other branches of government have abdicated their responsibility. . . . Prisoners are like other "discrete and insular" minorities for whom the Court must spread its protective umbrella because no other branch of government will do so. . . . This Court, as the voice and conscience of contemporary society, as the measure of the modern conception of human dignity, must declare that the [named prison] and all it represents offends the Constitution of the United States and will not be tolerated." -Under this brief writer's version of the living Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so. These same judges, responsible to no constituency whatever, are nonetheless acclaimed as "the voice and conscience of contemporary society." -Under the familiar principle of judicial review, the courts in construing the Constitution are, of course, authorized to invalidate laws that have been enacted by Congress or by a state legislature but that those courts find to violate some provision of the Constitution. -Marbuys v. Madison classically defended judicial review - Marshall was writing at a time when the governing generation remembered well not only the deliberations of the framers of the Constitution at Philadelphia in the summer of 1787 but also the debates over the ratification of the Constitution in the 13 colonies. - For Marshall, writing the Marbury v. Madison opinion in 1803, the memory of the debates in which the people of the 13 colonies had participated only a few years before could well have fortified his conviction that the Constitution was, not merely in theory but in fact as well, a fundamental charter that had emanated from the people. - The brief writer's version of the living Constitution is seldom presented in its most naked form, but is instead usually dressed in more attractive garb. At least three serious difficulties flaw the brief writer's version of the living Constitution. - First, it misconceives the nature of the Constitution, which was designed to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times. - Second, the brief writer's version ignores the Supreme Court's disastrous experiences when in the past it embraced contemporary, fashionable notions of what a living Constitution should contain. - Third, however socially desirable the goals sought to be advanced by the brief writer's version, advancing them through a freewheeling, nonelected judiciary is quite unacceptable in a democratic society. -It seems to me that it is almost impossible, after reading the record of the Founding Fathers' debates in Philadelphia, to conclude that they intended the Constitution itself to suggest answers to the manifold problems that they knew would confront succeeding generations. - To answer my first complaint about the brief, Congress and the President were It seems to me that it is almost impossible, after reading the record of the Founding Fathers' debates in Philadelphia, to conclude that they intended the Constitution itself to suggest answers to the manifold problems that they knew would confront succeeding generations. -Limitations were indeed placed upon both federal and state governments in the form of both a division of powers and express protection for individual rights. These limitations, however, were not themselves designed to solve the problems of the future, but were instead designed to make certain that the constituent branches, when they attempted to solve those problems, should not transgress these fundamental limitations. -The second difficulty with the brief writer's version of the living Constitution lies in its inattention to or rejection of the Supreme Court's historical experience gleaned from similar forays into problem solving. -Although the phrase "living Constitution" may not have been used during the nineteenth century and the first half of this century, the idea represented by the brief writer's version was very much in evidence during both periods. The apogee of the living Constitution doctrine during the nineteenth century was the Supreme Court's decision in Dred Scott v. Sandford. -According to the Court, the decision had never been one that Congress was entitled to make; it was one that the Court alone, in construing the Constitution, was empowered to make. - According to the Court, the decision had never been one that Congress was entitled to make; it was one that the Court alone, in construing the Constitution, was empowered to make. - The brief writer's version of the living Constitution made its next appearance, almost as dramatically as its first, shortly after the turn of the century in Lochner v. New York. 24 -In Lochner a New York law that limited to ten the maximum number of hours per day that could be worked by bakery employees was assailed on the ground that it deprived the bakery employer of liberty without due process of law. A majority of the Court held the New York maximum hour law unconstitutional, saying, "Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual. . -It may have occurred to some of the Justices who made up a majority in Lochner, hopefully subconsciously rather than consciously, that since this philosophy appeared eminently sound and since the language in the due process clause was sufficiently general not to rule out its inclusion, why not strike a blow for the cause? -To the extent, of course, that such a distinction may legitimately be derived from the Constitution itself, these latter principles do indeed stand on an entirely different footing. To the extent that one must, however, go beyond even a generously fair reading of the language and intent of that document in order to subsume these principles, it seems to me that they are not really distinguishable from those espoused in Dred Scott and Lochner. -The third difficulty with the brief writer's notion of the living Constitution is that it seems to ignore totally the nature of political value judgments in a democratic society. If such a society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards indeed do take on a generalized moral rightness or goodness. -Beyond the Constitution and the laws in our society, there simply is no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments. -Representative government is predicated upon the idea that one who feels deeply upon a question as a matter of conscience will seek out others of like view or will attempt to persuade others who do not initially share that view. When adherents to the belief become sufficiently numerous, he will have the necessary armaments required in a democratic society to press his views upon the elected representatives of the people, and to have them embodied into-The brief writer's version of the living Constitution, in the last analysis, is a formula for an end run around popular government. To the extent that it makes possible an individual's persuading one or more appointed federal judges to impose on other individuals a rule of conduct that the popularly elected branches of government would not have enacted and the voters have not and would not have embodied in the Constitution, the brief writer's version of the living Constitution is genuinely corrosive of the fundamental values of our democratic society.

Judges on Judging, Part III, 173-183

*Chapter 17 A Relativistic Constitution William Wayne Justice Judge, U.S. District* - act. Justice Rehnquist criticized this from the brief of the prisoners on judicial review by pointing out that the American form of government is a democratic one, founded on the principle of government by the consent of the governed. Within this framework, the only legitimate justification for judicial review is the one so eloquently propounded by Chief Justice Marshall in Marbury v. Madison3: that courts, when they strike down an act of a legislative body, do so by the command of the people as embodied in the Constitution. 1.) first glance, there seems little to disagree with in this formulation. On closer reading, however, I discerned three areas which may warrant a response: first, Justice Rehnquist's view of the place of judicial review in a democracy; 2.) second, his emphasis on, indeed, his exaltation of, relativism as a constitutional principle; and 3.) last, his quick derision of the brief writer's position. -Justice Rehnquist looked first to Marshall's defense of judicial review in Marbury v. Madison, according to which the Constitution, as the authoritative voice of the people, must prevail over any legislative acts which conflict with it. This explanation, in Justice Rehnquist's opinion, is "the only one consistent with [a] democratic philosophy of representative government." -My problem with it is twofold: First, as Alexander Bickel has convincingly pointed out, 5 the opinion in Marbury v. Madison not only begsthe question, it begs the wrong question. -Obviously, the Constitution is the supreme authority to which all governmental acts must conform; the difficult question is, why should the courts rather than the other two branches be the arbiters of the Constitution? In other words, the necessity for review goes without saying; the real question is, why judicial review? -My second objection goes to Justice Rehnquist's expressed desire to find a theory of review that is consistent with a democratic philosophy of government. -This is the first instance in the speech of what develops into a recurring tendency, that is, to criticize judicial review, not according to the Constitution, but rather according to some extraconstitutional notion of democracy. -I do not mean that our Constitution is inconsistent with the principles of a self-governing, representative democracy, but I do insist that, rather than judging our Constitution by some abstract, personal, and perhaps arbitrary theory of "democracy," we should judge such a theory by the light of our venerated, and justly venerated, Constitution. -These two objections are intimately related. The answer to the question, why the judiciary should be the guardian of the Constitution, tells us something also about the kind of democracy that our Constitution guarantees. -This is the justification of judicial review, in Hamilton's words the "bulwark," the "excellent barrier to the encroachments and oppressions of the representative body." -I have come to believe that Hamilton's argument for what might seem to be the most undemocratic aspect of judicial review turns on the distinction between what the People adopt as a "solemn and authoritative act," as he characterized it; and what they might be tempted to decide, equally authoritatively— but less solemnly— later on. - The often-made comparison between the Bill of Rights and contemporary public opinion polls reflecting adverse views as to certain of the enumerated rights seems to support Jefferson's point; perhaps we have indeed gone "downhill." But I would suggest that Jefferson's statement applies even more strongly to those constitutional amendments adopted in the afterglow of the Civil War. -But the Justice argued for what amounts to a very minimal judicial review. He derived his views at least in part from what I regard as his rather extreme view of democracy, rather than the more complicated and differentiated governmental structure which the Constitution creates. In several instances, -However, the address revealed a second, related, source of his argument for judicial impotence, one that I feel is alien to the Constitution— Justice Rehnquist's attachment to moral relativism. He argued that, since no value can be demonstrated to be intrinsically better or worse than any others, a particular value is authoritative only when it can claim majority support. -support. I will seek to show that this sort of uncritical deference to the will of the majority goes far beyond judicial restraint and the intention of the Framers, toward judicial abdication. - In response to Justices Rehnquist Holmesianian view of a living constitution, As a model of a living Constitution, this view has one distinctive limitation: it provides only for living governmental powers; it says nothing about whether the constitutional limits on governmental powers are alive as well. In terms of judicial review, this version of the living Constitution recommends restraint to the point of abdication. -Holmes's relativism, which Justice Rehnquist professed to swallow whole, when revealed in this naked form, may shock us; but it is more relevant to us today in a different sense— in its relation to the Constitution, which I see as one of repugnancy. -The main deficiency of philosophical relativism as a constitutional principle is that it is clearly a latter-day excrescence. The Framers gave no indication that they joined Justice Holmes in seeing "no reason for attributing to man a significance different in kind from that which belongs to a baboon or to a grain of sand." -They devoted their best efforts toward providing an environment in which men could achieve a happier existence, through the fullest exercise of their faculties. -This theory of relativism implies that any law more permanent than what a given majority favors is unwarranted. That view is attributable in part to our modern historical circumstance. -As I have sought to make clear, the inclination of the People to make certain laws more permanent than others must come from a belief that certain values are more important than others. In adopting a constitution, men voluntarily impose limitations on themselves and on future generations, because at that juncture they perceive that their best selves have triumphed. -As my final point, I would like to offer a partial defense of the so-called brief writer's position, and in so doing complete the picture of how the Justice's version of judicial restraint, as set out in his speech, was derived not from a conservative or interpretivist view of the Constitution, with which I might differ only as a question of degree, but rather from the substitution of his own relativist majoritarian ideals for those embodied in the Constitution, a substitution which I cannot accept at all. -Justice Rehnquist criticized two main points in the brief writer's position: - first, that "the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so"; - and second, that "[ t] hese same judges, responsible to no constituency whatever," are expected to speak as "the voice and conscience of contemporary society" and as "the measure of the modern conception of human dignity." -The first point was made as part of the brief writer's argument that, as a discrete and insular minority, prisoners are entitled to heightened judicial solicitude. -This seems to me perfectly consistent with Hamilton's description of the judiciary as a bulwark against majoritarian excesses, and with the language of the equal protection clause. It must have seemed so to others as well, since footnote 4 has become the source and mainstay of the Supreme Court's equal protection doctrine. - The brief writer's second point is equally arguable. Like all other suits of this nature, the prisoner's complaint must necessarily have included a claim under the Eighth Amendment, which prohibits "cruel and unusual punishments." -Once again, I reserve judgment on the merits of the brief writer's argument that certain prison conditions conflict with the Eighth Amendment. Certainly, I interpret nothing in the Constitution as a "roving commission" inviting me to enforce my own personal values; but, directly confronting the Eighth Amendment, which Justice Rehnquist refrained from doing in his speech, I do not feel that the Constitution allows me to dismiss the argument out of hand. -By paraphrasing these arguments and by ignoring the constitutional provisions behind them, the Justice appears to have distorted and obscured what is meritorious in them, and once again in the Holmesian mode, seems to have replaced judicial review with virtual abdication, calling it restraint.

Judges on Judging, Part III, 173-183

*Chapter 18 The Jurisprudence of Judicial Restraint A Return to the Moorings J. Clifford Wallace Judge, U.S. Court of Appeals, Ninth Circuit (1972- 1996) and Judge, U.S. District Court, Southern District of California (1970- 1972* -My purpose here is to sketch the theory and practice of, and argue for, a philosophy of judicial restraint. -judicial restraint has sometimes been referred to as "strict constructionism" or "interpretivism." 1 "Strict constructionism" or "interpretivism," in the natural meaning of those terms, is, as will emerge later, part, but only part, of judicial restraint. -Judicial restraint, as I will use the phrase, is not tied to any narrow sectarian politics, but rather is based upon concerns of legal predictability, uniformity, and judicial economy, and most importantly, upon values of liberty and democracy that are widely shared by our American citizens. -My argument is that our Republic would be best served if the judiciary returned to those moorings. *The Constitution and the Theory of Judicial Restraint* -Although the language of the Constitution is not as reminiscent of John Locke as is that of the Declaration of Independence, the substance of the Constitution shows the influence of Locke's theory that the central purpose of government is the protection of individual rights such as life, liberty, and private property. - The courts must protect constitutional rights against infringement, even infringement by the legally elected representatives of the majority. This, then, is one respect in which the Constitution is not entirely democratic. There are limits on what the majority may do. -The Constitution includes a number of devices designed, at least in part, to protect the citizenry. -includes a number of devices designed, at least in part, to protect the citizenry. The division of authority between the states and the federal government, for example, insures both that certain basic rights will be respected throughout the territory of the United States and that a wide range of decisions affecting rights will be made by a government less distant from the individual than is the federal government. -The Framers also designed the division of authority among three branches of the federal government to protect individual rights. The very separateness of the branches curtails the risk of oppression in the same fashion as does the division of power between federal and state governments. - Beyond this, however, the Framers intended the judicial branch to have a special role in the protection of rights. One of the motivations for creating this unique role for the judicial branch may have been a distrust of the other branches. -getting out of hand by violating rights of citizens in an excessive zeal for equality. Oppression by the judicial branch was not feared as much by the Framers, presumably because in their experience the colonial and state courts had been relatively benign. -The partisans of both judicial activism and judicial restraint agree that government cannot act beyond the outer limits established by constitutional boundaries without becoming subject to judicial intervention. The controversial question is just where those limits are and thus how extensive the territory is within which government can function free of judicial intervention. -To answer this question we must look to a second aspect of our Constitution— its democratic side. The Constitution establishes the framework for a federal representative democracy and guarantees to the states a "republican form of government." -The federal democracy, then, is a limited democracy. The Constitution imposes external limits, such as the Bill of Rights, and internal devices of indirect voting and representation. -Similarly, the Founders intended the "republican form of government" clause to embrace a wide range of political forms of state governments. Regardless, however, of the built-in checks on the federal democracy and latitude afforded state governments, the Framers intended the basic form of both the federal government and state governments to be democratic in the broad sense. -The opposing theory is that democracy is simply an instrumental value. Under the instrumental theory, democracy is valuable only to the extent that it produces substantively "better" decisions than would any other available decision-making procedure. - If one believes in the instrumental theory of democracy, however, one is likely to find the required constitutional argument or statutory construction when faced with what one perceives to be a bad statute. - A noninstrumental theory of democracy, by contrast, places value in the democratic process even when decisions fall short of the best possible— indeed even when the majority makes a decision that is stupid, irrational, or completely wrong-headed. -The noninstrumentalist, however, believes that, aside from the constitutional restraints, it is better that the majority make a wrong decision than that a judge make the decision, even if the judge would make a socially more beneficial decision. -The noninstrumentalist, however, believes that, aside from the constitutional restraints, it is better that the majority make a wrong decision than that a judge make the decision, even if the judge would make a socially more beneficial decision. - My argument for the intrinsic value of democracy is that democracy is an extension of liberty into the realm of social decision making. One cannot consistently be an instrumentalist about democracy and believe that liberty is intrinsically valuable. - Certainly we can all agree that there are some laws that restrict individual liberty in ways that are unwise, though constitutionally permissible. Activists would argue that in at least some such cases, the judiciary should step in to vindicate liberty on the theory that the intrinsic value of liberty outweighs the intrinsic value of democracy. - The problem is in identifying an unwise, though constitutional, limitation on liberty. I may be confident that a particular statute is unwise. The legislature, however, may have been just as confident that the statute represented good social policy. - I do not believe that one gains added wisdom or a keener perception of social value merely by becoming a judge. Indeed, because a judge is removed from the political process while a legislator is constantly immersed in it, the legislator is more closely exposed to the basic needs of society. - The intrinsic value of democracy thus provides a general theoretical underpinning for judicial restraint— an underpinning not undermined by the possibility that in a given case other values may be more important than democracy. - Legal economy further justifies judicial restraint. Many disputes are better resolved in a nonjudicial setting. Courts are cost-effective, for the most part, in settling disputes. They become cost-ineffective when asked to re-engineer social structures and reorganize social priorities. - Finally, judicial restraint is consistent with and complementary to the balance of power among the three independent branches. It accomplishes this in two ways. - among the three independent branches. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, but also fosters that equality by minimizing interbranch interference by the judiciary. In this analysis, judicial restraint might better be called judicial respect; that is, respect by the judiciary for the other coequal branches. - Second, judicial restraint tends to protect the independence of the judiciary. When courts become engaged in social legislation, almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators, it follows that judges should be elected like legislators. *The Practical Application of Judicial Restraint* -So much for the theory of judicial restraint. I would now like to say something about its practice. -By way of summary, the overall and abstract conception of judicial restraint, as I understand it, is that to avoid usurping the policy-making role of democratically elected bodies and officials, a judge should always hesitate to declare statutes or governmental actions unconstitutional and cautious to supplement or modify statutes when construing them. Courts should make as little social policy as possible consistent with deciding properly presented controversies. -If there were no common-law legacy, judicial restraint would apply to constitutional interpretation just as it does to the interpretation of statutes. -Drawing on the discussion of statutory interpretation, and temporarily assuming away the existence of case law, I would tentatively suggest the following principles: If there were no common-law legacy, judicial restraint would apply to constitutional interpretation just as it does to the interpretation of statutes. Drawing on the discussion of statutory interpretation, and temporarily assuming away the existence of case law, I would tentatively suggest the following principles: 1.) Stand by the clear language of the Constitution unless doing so is manifestly counter to the Framers' intent. 2.) Clarify unclear constitutional language in line with the Framers' intent if that intent is ascertainable with reasonable certainty. 3.) If neither of the prior principles applies, clarify unclear constitutional language by selecting the alternative that least restricts the discretion of elected lawmakers and officials. 4.) If none of the prior principles applies, clarify unclear constitutional language in line with the best estimate of the Framers' intent or in the manner most congruent with prior expectations. -Although it is possible that the Framers intended to write this sort of flexibility into the Constitution, constitutional language to that effect is absent. - In addition, squaring the belief held by the Framers' generation in self-evident truth and inalienable rights with the normative relativity of the "growing Constitution" theory is difficult. - The living Constitution theory also displays a naive faith in consistent moral and social progress. The idea that the Constitution changes with shifting public opinion seems relatively benign if one expects public opinion to become more enlightened with the passage of time. If, -In fact, there is much less reason to think that the constitutional limits must change with time if they do not cover too broad a range of subjects to begin with. - In fact, there is much less reason to think that the constitutional limits must change with time if they do not cover too broad a range of subjects to begin with. *Judicial Restraint's Response to Judicial Activism* -The abstract theory of judicial restraint that I discussed earlier may in certain respects sound a little radical— although I would say it is radical only in the sense of returning to the origin, the fundamental moorings of the Constitution and our judicial heritage. - The underlying values of judicial restraint are not those of any particular political party or ideology, but rather are the values of liberty, democracy, predictability, uniformity, and judicial economy. - It recognizes that the judge is not the complete problem-solver, but one part of a team. It requires him or her to give proper deference to the other independent branches, even when he or she believes that they have made an incorrect choice of policy. - Judicial restraint only rarely permits one to overturn the law made by activist judges. This obviously gives such judges a certain advantage, because judges who deplore their innovations will nonetheless often retain, though rarely extend, them. - Undoing an activist mistake does not offend the democratic values underlying restraint. Indeed, undoing antidemocratic forays supports those values. But such a course may offend predictability and perhaps uniformity. For these reasons, judges must approach the overturning process with the greatest care. - Thus, even when, in overruling precedent, judicial restraint most nearly resembles activism, it maintains a general consistency with its underlying principles. - Judicial restraint is also consistent in its application to different historical periods. Its practice does not vary with changing political currents among legislators and judges. It adheres to a consistency of principle. -

Judges on Judging, Part III, 173-183

*Chapter 21 Originalism The Lesser Evil Antonin Scalia Justice, Supreme Court of the United States (1986- 2016) and Judge, U.S. Court of Appeals, District of Columbia Circuit (1982- 1986)* - It may surprise the layman, but it will surely not surprise the lawyers here, to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis. -It is only in relatively recent years, however, that nonoriginalist exegesis has, so to speak, come out of the closet, and put itself forward overtly as an intellectually legitimate device. - To be sure, in support of its venerability as a legitimate interpretive theory there is often trotted out John Marshall's statement in McCulloch v. Maryland that "we must never forget it is a constitution we are expounding" 1— as though the implication of that statement was that our interpretation must change from age to age. - Marshall was saying that the Constitution had to be interpreted generously because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned but also the needs that might arise in the future. -The principal theoretical defect of nonoriginalism, in my view, is its incompatibility with the very principle that legitimizes judicial review of constitutionality. - Nothing in the text of the Constitution confers upon the courts the power to inquire into, rather than passively assume, the constitutionality of federal statutes. That power is, however, reasonably implicit because, as Marshall said in Marbury v. Madison, - (1) "[ i] t is emphatically the province and duty of the judicial department to say what the law is," (2) "[ i] f two laws conflict with each other, the courts must decide on the operation of each," and (3) "the constitution is to be considered, in court, as a p -Central to that analysis, it seems to me, is the perception that the Constitution, though it has an effect superior to other laws, is in its nature the sort of "law" that is the business of the courts— an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. -Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that "You can't beat somebody with nobody." - This is not to say that originalists are in entire agreement as to what the nature of their methodology is; as I shall mention shortly, there are some significant differences. But as its name suggests, it by and large represents a coherent approach, or at least an agreed-upon point of departure. - As the name "nonoriginalism" suggests (and I know no other, more precise term by which this school of exegesis can be described), it represents agreement on nothing except what is the wrong approach. - Finally, I want to mention what is not a defect of nonoriginalism, but one of its supposed benefits that seems to me illusory: If we would not have done something in the past why would we do it today - Our modern society is undoubtedly not as enthusiastic about economic liberties as were the men and women of 1789; but we should not fool ourselves into believing that because we like the result the result does not represent a contraction of liberty. Nonoriginalism, -Let me turn next to originalism, which is also not without its warts. Its greatest defect, in my view, is the difficulty of applying it correctly. Not that I agree with, or even take very seriously, the intricately elaborated scholarly criticisms to the effect that (believe it or not) words have no meaning. - Properly done, the task requires the consideration of an enormous mass of material— in the case of the Constitution and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states. - Even beyond that, it requires an evaluation of the reliability of that material— many of the reports of the ratifying debates, for example, are thought to be quite unreliable. It is, in short, a task sometimes better suited to the historian than the lawyer. - I can be much more brief in describing what seems to me the second most serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis— so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong. - But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? - Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge— even among the many who consider themselves originalists— would sustain them against an Eighth Amendment challenge. - Having described what I consider the principal difficulties with the originalist and nonoriginalist approaches, I suppose I owe it to the listener to say which of the two evils I prefer. It is originalism. I - I discussed earlier I see no basis for believing that supervision of the evolution would have been committed to the courts. At an even more general theoretical level, originalism seems to me more compatible with the nature and purpose of a Constitution in a democratic system. - I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned. - It seems to me, moreover, that the practical defects of originalism are defects more appropriate for the task at hand— that is, less likely to aggravate the most significant weakness of the system of judicial review and more likely to produce results acceptable to all. - Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. - result. The inevitable tendency of judges to think that the law is what they would like it to be will, I have no doubt, cause most errors in judicial historiography to be made in the direction of projecting upon the age of 1789 current, modern values— so that as applied, even as applied in the best of faith, originalism will (as the historical record shows) end up as something of a compromise. - That— to conclude this largely theoretical talk on a note of reality— is the real dispute that appears in the case: not between nonoriginalists on the one hand and pure originalists on the other, concerning the validity of looking at all to current values; but rather between, on the one hand, nonoriginalists, faint-hearted originalists and pure-originalists-accepting-for-the-sake-of-argument-evolutionary-content, and, on the other hand, other adherents of the same three approaches, concerning the nature and degree of evidence necessary to demonstrate that constitutional evolution has occurred.

Judges on Judging, Part III, 230-241

*Chapter 24 The Constitution of the United States Contemporary Ratification William J. Brennan Jr. Justice, Supreme Court of the United States (1956- 1990) and Justice, Supreme Court of New Jersey (1952- 1956* - It will perhaps not surprise you that the text I have chosen for exploration is the amended Constitution of the United States, which, of course, entrenches the Bill of Rights and the Civil War Amendments, and draws sustenance from the bedrock principles of another great text, the Magna Carta. -The Constitution is fundamentally a public text— the monumental charter of a government and a people— and a Justice of the Supreme Court must apply it to resolve public controversies. - For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the American habit, extraordinary to other democracies, of casting social, economic, philosophical, and political questions in the form of law suits, in an attempt to secure ultimate resolution by the Supreme Court. - The main burden of my 29 Terms on the Supreme Court has thus been to wrestle with the Constitution in this heightened public context, to draw meaning from the text in order to resolve public controversies. - Two other aspects of my relation to this text warrant mention. First, constitutional interpretation for a federal judge is, for the most part, - obligatory. When litigants approach the bar of the court to adjudicate a constitutional dispute, they may justifiably demand an answer. - Second, consequences flow from a Justice's interpretation in a direct and immediate way. A judicial decision respecting the incompatibility of Jim Crow with a constitutional guarantee of equality is not simply a contemplative exercise in defining the shape of a just society. -These three defining characteristics of my relation to the constitutional text— its public nature, obligatory character, and consequentialist aspect— cannot help but influence the way I read that text. - When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought. Justices are not platonic guardians appointed to wield authority according to their personal moral predilections. - Because judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation. - Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance. - Another, perhaps more sophisticated, response to the potential power of judicial interpretation stresses democratic theory: because ours is a government of the people's elected representatives, substantive value choices should by and large be left to them. This view emphasizes not the transcendent historical authority of the Framers but the predominant contemporary authority of the elected branches of government. - Faith in the majoritarian process counsels restraint. Even under more expansive formulations of this approach, judicial review is appropriate only to the extent of ensuring that our democratic process functions smoothly. - The view that all matters of substantive policy should be resolved through the majoritarian process has appeal under some circumstances, but I think it ultimately will not do. - It is the very purpose of a Constitution— and particularly of the Bill of Rights— to declare certain values transcendent, beyond the reach of temporary political majorities. - Faith in Democracy is one thing, blind faith quite another - To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of these substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances. - Each generation has the choice to overrule or add to the fundamental principles enunciated by the Framers; the Constitution can be amended or it can be ignored. - Yet with respect to its fundamental principles, the text has suffered neither fate. Thus, if I may borrow the words of an esteemed predecessor, Justice Robert Jackson, the burden of judicial interpretation is to translate "the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century." - We current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: what do the words of the text mean in our time? - Interpretation must account for the transformative purposes of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior community had not sufficiently recognized. - The Constitution on its face is, in large measure, a structuring text, a blueprint for government. And when the text is not prescribing the form of government, it is limiting the powers of that government. - To put this another way, the possibilities for collision between government activity and individual rights will increase as the power and authority of government itself expands, and this growth, in turn, heightens the need for constant vigilance at the collision points. - The challenge is essentially, of course, one to the capacity of our constitutional structure to foster and protect the freedom, the dignity, and the rights of all persons within our borders, which it is the great design of the Constitution to secure. - It was in particular the Fourteenth Amendment's guarantee that no person be deprived of life, liberty, or property without process of law that led us to apply many of the specific guarantees of the Bill of Rights to the states. - And our adherence to the constitutional vision of human dignity is so strict that even after convicting a person according to these stringent standards, we demand that his dignity be infringed only to the extent appropriate to the crime and never by means of wanton infliction of pain or deprivation. I interpret the Constitution plainly to embody these fundamental values. - Recognition of broad and deep rights of expression and of conscience reaffirm the vision of human dignity in many ways. - I do not mean to suggest that we have in the last quarter century achieved a comprehensive definition of the constitutional ideal of human dignity. We are still striving toward that goal, and doubtless it will be an eternal quest. For if the interaction of this Justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve. - It is in our continued tolerance of state-administered execution as a form of punishment. I make it a practice not to comment on the constitutional issues that come before the Court, but my position on this issue, of course, has been for some time fixed and - As I have said in my opinions, I view the Eighth Amendment's prohibition of cruel and unusual punishments as embodying to a unique degree moral principles that substantively restrain the punishments our civilized society may impose on those persons who transgress its laws. - For me, then, the fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded. It is, indeed, "cruel and unusual." It is thus inconsistent with the fundamental premise of the Clause that even the most base criminal remains a human being possessed of some potential, at least, for common human dignity. - In my judgment, however, the unique interpretive role of the Supreme Court with respect to the Constitution demands some flexibility with respect to the call of stare decisis. Because we are the last word on the meaning of the Constitution, our views must be subject to revision over time, or the Constitution falls captive, again, to the anachronistic views of long-gone generations. - Yet, again in my judgment, when a Justice perceives an interpretation of the text to have departed so far from its essential meaning, that Justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path. - today. As we adapt our institutions to the ever-changing conditions of national and international life, those ideals of human dignity— liberty and justice for all individuals— will continue to inspire and guide us because they are entrenched in our Constitution.

Judges on Judging, Part III, 247-254

*Chapter 26 On Constitutional Interpretation David H. Souter Justice, Supreme Court of the United States (1990- 2009) and Judge, U.S. Court of Appeals, First Circuit (1990)* -Chapter 26 On Constitutional Interpretation David H. Souter Justice, Supreme Court of the United States (1990- 2009) and Judge, U.S. Court of Appeals, First Circuit (1990) -The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this. - A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. Once they have been determined, the facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don't, judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively. - The fair reading model would describe pretty much what would happen. But cases like this do not usually come to court, or at least the Supreme Court. - The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. - Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person's age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them. - The two stories won't, of course, give anything like a complete description either of the Constitution or of judging, but I think they will show how unrealistic the fair reading model can be. - The story is about a case that many of us here remember. It was argued before the Supreme Court of the United States on June 26, 1971, and is known as the Pentagon Papers. The New York Times and the Washington Post had each obtained copies of classified documents prepared and compiled by government officials responsible for conducting the Vietnam War. The newspapers intended to publish some of those documents, and the government sought a court order forbidding the publication. -The government said it was entitled to a prior restraint, an order forbidding publication in the first place, not merely one imposing a penalty for unlawful publication after the words are out. The argument included an exchange between a great lawyer appearing for the government and a great judge, and the colloquy between them was one of those instances of a grain of sand that reveals a universe. - And although he failed to convince the court that the capacity to exercise these powers would be seriously affected by publication of the papers, the court did recognize that at some point the authority to govern that Dean Griswold invoked could limit the right to publish. - The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law. -too: Brown v. Board of Education from 1954, in which the Supreme Court unanimously held that racial segregation in public schools imposed by law was unconstitutional, as violating the guarantee of equal protection of the law. -Brown ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites. - The language of the Constitution's guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think leads to the explanation for their divergent results. -And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional. - The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. - Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution's Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. - Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning. -The fair reading model misses that, but it has even more to answer for. Remember that the tensions that are the stuff of judging in so many hard constitutional are, after all, the creaturesof our aspirations: to value liberty, as well as order, and fairness and equality, as well as liberty. And the very opportunity for conflict between one high value and another reflects our confidence that a way may be found to resolve it when a conflict arises. - That is why the simplistic view of the Constitution devalues our aspirations, and attacks our confidence, and diminishes us. It is a view of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made. -But I have come to understand that he was right, and by the same token I understand that I differ from the critics I've described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. -If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

Judges on Judging, Part II, pp. 73-76

*Chapter 3 The fight theory v. truth theory* *Jerome Frank Judge, U.S. US Court of Appeals, Second Circuit (1941-1957)* -When we say that present-day trial methods are "rational," presumably we mean this: The men who compose our trial courts, judges and juries, in each lawsuit conduct an intelligent inquiry into all the practically available evidence, in order to ascertain, as near as may be, the truth about the facts of that suit. that might also be called the investigatory or truth method of trying cases, they yield no more than educated guess -The success of such a method is conditioned by at least these two factors: (1) The judicial inquirers, trial judges or juries, may not obtain all the important evidence or; (2) The judicial inquirers may not be competent to conduct such an inquiry. -Many lawyers maintain that the "fight" theory and the "truth" theory coincide. They think that the best way for a court to discover the facts in a suit is to have each side strive as hard as it can, in a keenly partisan spirit, to bring to the court's attention the evidence favorable to that side. -But frequently the partisanship of the opposing lawyers blocks the uncovering of vital evidence or leads to a presentation of vital testimony in a way that distorts it. -an experienced lawyer uses all sorts of stratagems to minimize the effect on the judge or jury of testimony disadvantageous to his client, even when the lawyer has no doubt of the accuracy and honesty of that testimony. The lawyer considers it his duty to create a false impression, if he can, of any witness who gives such testimony. If such a witness happens to be timid, frightened by the unfamiliarity of courtroom ways, the lawyer, in his cross-examination, plays on that weakness, in order to confuse the witness and make it appear that he is concealing -significant facts. . -If, when interviewing such a witness before trial, the lawyer notes that the witness has mannerisms, demeanor-traits, which might discredit him, the lawyer teaches him how to cover up those traits when testifying: -adversary. If, to the lawyer's knowledge, a witness has testified inaccurately but favorably to the lawyer's client, the lawyer will attempt to hinder cross-examination that would expose inaccuracy. -In short, the lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts. -The "fight" theory of justice is a sort of legal laissez-faire. It assumes a "litigious man." It assumes that, in a law suit, each litigious man, in the court-room competitive strife, will, through his lawyer, intelligently and energetically try to use the evidential resources to bring out the evidence favorable to him and unfavorable to his courtroom competitor; that thereby the trial court will obtain all the available relevant evidence; and that thus, in a socially beneficial way, the court will apply the social policies embodied in the legal rules to the actual facts, avoiding the application of those rules to a mistaken version of the facts. -Legal laissez-faire theory therefore assumes that the government can safely rely on the "individual enterprise" of individual litigants to ensure that court-orders will be grounded on all the practically attainable relevant facts. . .

Judges on Judging, Part II, pp 86-94,

*Civil Law Suits* -The numbers reveal that many federal court users no longer obtain civil trials. The percentage of these lawsuits reaching trial fell from 11.5% in 1962 to 6.1% in 1982 to 1.8% in 2002. The absolute number of civil trials has fallen 60% since the mid-1980s. -mid-1980s. The figures demonstrate either a market shift or a weakening of federal courts' competence in delivering dispute resolution by trial, or both. -Often, plaintiffs and their lawyers still want a federal jury verdict or the threat of one, or at least the full disclosure of their opponents' case that federal rules compel. They continue to file federal lawsuits accordingly. But the desire to control costs (among insurers in particular) and a fear of jury unpredictability or break-the-company verdicts provoke greater defense willingness to mediate, arbitrate, or settle rather than bear the risk and extraordinary expense of trial. Fear of public access to confidential or damaging information also plays a part in trial avoidance. -Another source of continued federal filings is defendants who, facing difficult lawsuits in state court, remove their cases to federal court. Removals from state court have trended upward over the past twenty-five years, moving somewhat erratically in the last decade. -Defendants without local ties, who fear favoritism toward their in-state opponent in a state court, prefer a federal judicial officer who does not face retention or reelection campaigns. - In complicated cases, they may conclude that federal courts can better manage the case and grapple with the issues, because federal courts have greater access to legal research, law clerks, and library materials, more time to deal with complicated issues, and greater experience with such cases. -Congress regularly gives federal district courts new business. A recent example: unhappy with state courts' treatment of class actions, -Congressional lawmaking carries a particular implication for federal courts' work. When Congress drafts a statute, it cannot possibly foresee all the disputes it will encompass or engender. - As a result, statutory language often turns out ambiguous for particular circumstances. Sometimes, to submerge disagreement so as to get the law enacted, Congress intentionally chooses ambiguous language. -Either way, users ask federal courts to expound upon what the new law means and the circumstances to which it applies. -not provide this authoritative interpretation; only courts do. Now you might legitimately observe, "Law interpretation is the business of the Supreme Court and the appellate courts. What makes you think that users and stakeholders ask district courts to play an increased role here?" Four reasons. -First, law interpretation has always been district courts' business, but district judges used to deal with it primarily in jury instructions. Increasingly, litigants ask district courts to make discrete legal rulings before or instead of trial. As a result, "trial" courts now produce a multitude of written decisions that look very much like appellate opinions, expounding upon the law for the parties and the future. A large component of this shift from jury instructions to written opinions results from users— mostly defendants— asking more and more for summary judgment because, they say, the significant facts are undisputed. -Second, Congress has given district courts a quasi-appellate role in disputes such as social security disability and special education benefit entitlement. In those cases, facts are established mostly before an administrative law judge; the district court determines whether legal principles have been applied correctly, a law exposition function. -Third, Congress, Federal Rules drafters, and appellate courts increasingly instruct district courts to give detailed explanations for their decisions, explanations generally provided most effectively in writing. -Third, Congress, Federal Rules drafters, and appellate courts increasingly instruct district courts to give detailed explanations for their decisions, explanations generally provided most effectively in writing. -Consider the additional mandate to district judges in class actions: determining whether there is a structure and process by which hundreds or millions of people, sometimes nationwide or beyond, can obtain reimbursement for some injury-producing conduct. These cases often involve complex scientific or economic issues, and they carry tremendous administrative responsibilities. -task. Almost all class action disputes end in dismissal or settlement without trial. So it is the judge's role first in helping structure the dispute and then in declaring applicable law that is critical. -Users increasingly ask district courts to engage in what I call "fact sorting." Even if the law is not uncertain, there is a perennial dispute over whether a "genuine issue of material fact" exists, the standard for determining whether the judge can order judgment without trial. -The district judge or magistrate judge sorts these electronically-provided facts, determines which are undisputed and which facts matter, thus discarding other facts, whether the outcome is judgment or trial. Disputes over experts require fact-finding on the adequacy of the expert's credentials, the status of the science or technical knowledge, how tests were conducted, what other experts do, and whether the expert's opinion fits the underlying facts, all affecting admissibility of evidence on important issues like causation. -Many district judges think that the primary value they provide is the availability of a well-run trial in a public courtroom, following on the heels of effective case management and open discovery. -Plaintiffs who file federal lawsuits still seek the threat of a jury verdict, the leverage of federal litigation's cost, and federal discovery. Defendants who remove their lawsuits from state courts still want the federal courts' greater resources, the larger jury pool, perhaps better discovery, a realistic threat of summary judgment, and judicial officers who do not confront reelection.

Judges on Judging, Part II, pp 86-94,

*Conclusion* - So, what is the federal district courts' "business" in the twenty-first century? "Equal Justice Under Law," a ringing phrase, is too broad a mission statement. Drucker said that a hospital's mission is not to provide health care, as hospital administrators profess, but narrower, to take care of illness. Likewise, the district courts' mission never has been the general maintenance of equal justice. Federal judges care intensely about equal justice, but that is not the courts' mission. . . . - In the twenty-first century, the federal district courts' primary roles in civil cases have become law exposition, fact sorting, and case management— office tasks— not umpiring trials. In criminal cases, the judge's work remains courtroom-centered but, instead of trials, it has become law elaboration and fact finding at sentencing, supervising federal offenders after prison, and safeguarding the integrity of a criminal process that sends defendants to prison without trial. In 2007, that is the federal district courts' business. Trials as we have known them, and unfettered sentencing discretion, are not coming back.

Judicial Process, chap. 4, pp. 72-85

*Courts Do Not Decide "Political Questions"* - The Judiciary was not designed to be an instrument of manifesting popular will, therefore is not political - When judges determine that something is a political question and thus not appropriate for judicial review, they are saying that the litigants may have couched your plea in judicial terminology, but under the US government issues must be properly decided at the ballot box, legislative halls, or executive chambers

Judges on Judging, Part II, pp 86-94,

*Criminal Prosecutions* -For the criminal business of federal courts, the data reveal unequivocally that users mostly avoid trials. -But a severely declining fraction of federal criminal cases reaches trial (15% in 1962, 5% in 2002, the absolute number of trials falling 30%). At the same time, the number of federal prosecutions holds steady or trends upward. From 2001 to 2004, criminal case filings grew 13% 3 (although in the past two years they have declined). 4 -What do users and stakeholders seek instead of criminal trials? Prosecutors want guilty plea adjudications; they are cheaper and more certain. Defendants would like the chance of a jury acquittal. But they do not want to face a substantially higher sentence if the jury convicts. -Therefore, most defendants now join prosecutors in wanting no trial if they face a serious risk of conviction, because they can reduce their sentences by pleading guilty. Presumably, -Federal judges' sentencing role has changed drastically. Perceiving disparities in nationwide sentencing practices,practices, Congress ordered creation of Sentencing Guidelines in the Sentencing Reform Act of 1984 to restrict judges' sentencing discretion. In 2005, the Supreme Court declared the Guidelines "advisory," 5 but left standing the requirement that judges perform the Guidelines analysis as part of the sentencing determination. The Guidelines remain highly influential, and judges who sentence outside them must provide written explanations for appellate review. -The Guidelines increased dramatically the time that federal judges devote to sentencing. Presentence reports are detailed and lengthy. -Those findings produce numerical scores determining, from a published grid, the prison time and fine range. The Guidelines are a complex Code, with commentary, drafting history, and thousands of appellate opinions interpreting them. They change almost annually because of Sentencing Commission or congressional action. -Federal prosecutors decide which defendants to prosecute, which charges to press, which defendants to leave solely to state prosecutors, and whether to request a sentence below the Guideline range. - Offenders and their lawyers try to persuade a judge that they are different from other offenders and deserve more mercy at sentencing. If they strike a favorable deal with the prosecutor, they try to prevent the probation officer or judge from undoing their bargain. -Sentencing demonstrates separation of powers in microcosm. Congress legislates the penalty range, sets some of the criteria and requires use of Guidelines. The executive branch, through the prosecutor, determines whom to charge and how, thereby creating sentencing limits. But in the end, the judge imposes the sentence. -There is still abundant public courtroom time because, as the number of trials has declined, sentencing proceedings have lengthened, and supervised release revocation hearings have been added to the judge's courtroom duties.

Constitutional Authority

*Critique of three practical virtues* - 1.) Supreme Court limited capacity to settle constitutional disputes, e.g., Dred Scott, abortion. Supreme Court does not provide clear statements of legal rules - 2.) Judicial capacity to adhere constitutional norms more than elected officials not proven in historical record, e.g., Boiling v. Sharpe (1954) - struck down federal laws mandating school segregation in D.C. -all agree good decision; however, before 1954, many cases wrongly decided, e.g., Civil Rights Cases, federal income tax, federal protections of union members, New Deal. Better record for declaring state actions unconstitutional. 3.) Questionable whether Court protects vulnerable minorities, e.g., Dred Scott, free speech restrictions WWI, Japanese internment WWII

Judicial Activism

*Dred Scott v. Sandford (1856)* 1. Court held federal courts lacked diversity jurisdiction since Dred Scott not a "citizen" of a different state. To deny jurisdiction is viewed as judicial restraint. 2. Left slavery's status exclusively in hands of state statutes and state court which might seem passive; but--- 3. Grounds for denying jurisdiction - Scott's African-slave heritage and slave status. Gave such persons no rights, including privileges and immunities under Article IV. 4. Scott remained a slave, the Court invalidated part of Congress's Missouri Compromise of 1820. - Case's activist status requires no balancing of deferential vs. non-deferential or of liberties or progressive politics. If Dred Scott is activist, it is because, and only because, the Court departed from cultural norms of judicial conduct.

Constitutional Authority

*Elected officials influence federal judicial decisions* 1. Legislatures remove barriers to constitutional adjudication by financing legal services 2. Legislatures create obstructions to constitutional adjudication by limiting the jurisdiction of federal courts 3. Presidents nominate justices to the federal bench who share constitutional vision 4. Supreme Court rulings must be implemented by governing officials

Judicial Process, chap. 5, pp. 92-100

*Election of Judges* -The election of judges on a partisian or non partisian ballot is very common selection method among the states -In practice, things have not always worked this way. Before the 1980s, judicial elections"were traditionally uncompetitive, and the major causes of turnover on the bench were retirements and resignations." 16 Furthermore, uncontested races typically involved modest spending and low levels of candidate visibility. -Voters used to rely on cues such as party affiliation and name familiartity -New Mexico has a hybrid system of judicial selection that includes merit selection, partisan elections, and retention elections. -b In 2014 voters in Tennessee elected to remove the Judicial Nominating Commission from the selection process for supreme court and intermediate appellate court judges. Seats on these courts will now be filled by the governor with confirmation by both houses of the state legislature, after which judges will still face retention election. -This began to change in the late 1970s, and "the 1980s brought numerous examples of extremely competitive and remarkably expensive judicial elections." 17 The first signs of a new style of judicial elections appeared in California, where deputy district attorneys in Los Angeles advertised in a local legal newspaper to recruit candidates to run against sitting trial court judges. -The amount of money spent on retention elections has skyrocketed in recent years. -These figures do not include spending by outside political groups, whose spending on elections— including judicial elections— has also increased substantially in recent years. 25 -Although there is a good deal of concern expressed over the role of money in judicial elections, much of the recent social science research in this area questions the conventional wisdom that more money being spent on judicial elections is a bad thing for the judiciary. -Another study by these same authors found that, at least as far as voter willingness to participate in judicial elections is concerned, the use of attack ads in judicial campaigns does not alienate voters or discourage them from the electoral process. On the contrary, "attack ads are a mobilizing force in state supreme court elections," 28 leading to increased voter participation in judicial elections. -Most states that elect their judges prohibit judicial candidates from personally soliciting donations. In Williams-Yulee v. The Florida Bar in 2015, the Supreme Court ruled on whether or not it violated the First Amendment for judges in Florida to be prevented from personally soliciting campaign funds. 34 The Court ruled that Florida had a compelling interest in preserving the public's confidence in judicial integrity and that this interest was appropriately furthered by the restriction. -Finally, we should note that the method of actually conducting a judicial campaign has changed over the years. Candidates, especially those running for an intermediate appellate court or a court of last resort, now place greater emphasis on broadcast television and less on traditional methods of contacting voters. -Although many candidates for a judgeship still focus primarily on their qualifications and such traits as judicial temperament and fairness, others have begun to speak out more boldly on policy issues. -As part of the Progressive movement at the turn of the twentieth century, reformers sought to take some of the raw partisanship out of judicial elections by having judges run on a nonpartisan basis. -In practice, however, a recent study reveals that candidates in nonpartisan elections also regard political parties and interest groups as important to their campaigns and as sources of campaign funds.

Judicial Activism

*Four Horsemen 4 - Opposed New Deal* 1.) Pierce Butler 2.) James McReynolds 3.) George Sutherland 4.) Willis van Devanter

Judicial Activism

*Green's Thesis* - Judicial activism not inherently linked to individual liberty or curbing governmental power. - Useful label only where judge has violated cultural standards of judicial role

Judicial Process, chap. 5, pp. 92-100

*Gubernatorial Appointment and Legislative Appointment* - In the early days of the Republic, judges were chosen either by the governor or the state legislature, but today such methods are used in only a handful of states. -When judges are appointed by the governor, politics almost invariably comes into play. governors tend to select individuals who have been active in state politics and whose activity has benefited either the governor personally or the governor's political party or allies. - Also, in making judicial appointments, the governor often bargains with local political bosses or with state legislators whose support is needed. -A governor may also use a judgeship to reward a legislator or local politico who has given faithful political support in the past. Only two states— Virginia and South Carolina— still allow their legislators to appoint state judges. Although a variety of criteria may be used in choosing members of the state supreme courts, when it comes to filling the state trial benches, state legislators often turn to former members of the legislature. -This does not mean that judges appointed in this way are merely political hacks in need of a job, but it is evidence that friends and colleagues do take care of their own when given the opportunity.

Constitutional Interpretation

*I. Textualism* 1. Plain meaning of constitutional words and clauses, i.e. Justice Story 2. Meaning of words at time Constitution drafted or without regard to historical context

Constitutional Interpretation

*II. Originalism* 1. Constitutional provisions mean what they meant when they were ratified, e.g., whether Constitution permits states to regulate late abortion or adopt affirmative action programs depends on how ordinary persons in 1868 understood phrases "due process of law" or "equal protection." 1. Original Intent or Original Meaning - most emphasize "original meaning" - public meaning of text when ratified 2. Justice Thomas - "original application" - practices at time of First and Fourteenth Amendment 3. Professor Jack Balkin - Yale Law School - "original principles" - original meaning and principles of text, but application in current circumstances

Constitutional Interpretation

*III. Doctrinalism* 1. Resolve constitutional controversies by interpreting past precedents. 2. What government officials have said about the Constitution over time, i.e., judges, presidents, legislators. 3. Rely on analogies to previous constitutional decisions. - Youngstown Sheet & Tube Company v. Sawyer (1952) - justices disputed whether past executive practice consistent with Presidents Harry Truman's decision to seize steel plants without congressional authorization. - President Andrew Jackson vetoed legislation rechartering national bank stated previous federal and state legislative decisions supported principle that Congress had to authority to pass the bill.

Constitutional Interpretation

*IV. Structuralism* 1. Constitutional powers and limitations from the general arrangements of the constitutional order and relationships between governing institutions, i.e., separation of powers, federalism, and democracy core principles, but not stated in constitutional text. 2. Inference from the structures and relationships created by the constitution in all its parts or in some principal part rather than exegesis of particular textual passage. - Justice Scalia - Printz v. United States (1997) - federal law unconstitutional require local officials to implement federal gun control regulations - appeal to "federalism"

Chapter 6 123-134

*Interest Groups* -Pressure groups from the left and the right lobby either for or against judicial nominations - Interest groups at least in part use the Supreme Court for their own financial maintenance - Interest groups also play a role in the appointment process for lower federal court judges -With respect to the Senate's role in confirming judges, a recent study concluded that while most lower court nominations are "rubber-stamped" by the Senate, occasionally interest groups may sound "a fire alarm" for a nominee, especially for those to the courts of appeals, whom they find particularly objectionable. -There is also evidence that interest group lobbying affects public opinion about supreme court nominees and that the senators who vote either to confirm or reject these nominnes are influenced by this public opiion in their respective states.

Judicial Process, chap. 4, pp. 72-85

*No Rulings are Made on the Wisdom of Legislation* - The final aspect of judicial self-restraint is the most often violated by courts: Official actions can only be struck down if they step acres the boundaries clearly set forth by the founders - Another spin off of this principle is that a law may be passed that all agree is good and wise but that nevertheless unconstitutional, conversely a statute may legalize the commission of an official deed that is known to be bad and dangerous but that still does not offend the constitution. Despite the inventible intrusion of judge's personal values into their interpretation constructional, virtually all jurists subscribe to the general principal the awls can be invalidated only if they offend the constitution - not the personal preference of the judge.

Judges on Judging, Part II, pp. 126-131

*Interpretation Has Legislative Characteristics* -And so the bill becomes the law and the law arrives before judges for interpretation. -The passage of the legislation quieted the conflict only temporarily. It breaks out anew in the process of interpretation in the courts. -The same cleavage that appeared in legislative halls now shows up among the judges. Each side has eminent authority for its view since two conflicting ideas found their way into the legislation. It is therefore easy for judge or lawyer or editor to accuse the judge, who takes the opposing view, of usurping the role of the legislature. -A more honest, a more objective view would concede that interpretation has legislative as well as judicial characteristics. It cannot be otherwise where the legislature has left the choice of competing theories or ideas to the judges. -For that and for other reasons they pass it over entirely or left it vague and undefined. The necessity to fill in the gap is then presented to the court. And the judges are left at large in a field that the legislature lacked capacity to define. To a degree the same problem is presented to the judiciary when vague and general language is employed like the words "fair" or "just" or "equitable." -A judge's reaction to vague statutory language is bound to be like his reaction to the generalities of constitutional clauses. The language that he construes gathers meaning and overtones, significance and relevancy in terms of his own life and experience, his personal set of values, his training and education, and the genes of the blood stream of his ancestors.

Constitutional Interpretation

*Intratextualism - Professor Akhil Amar - Yale Law School* 1. Read contested word or phrase in light of another passage of Constitution similar word or phrase, e.g., determine meaning "right to vote" in Twenty-Fourth Amendment to mean same as "right to vote" in the Fifteenth Amendment. 2. Justice Hugo Black's claim that First Amendment prohibited all speech since text states: "Congress shall make no law...abridging the freedom of speech."

Judges on Judging, Part II, pp. 126-131

*Judges Share Crises of Modern Society* -The crises that face a democratic country under the stresses and strains of modern society are shared by judges. - The judiciary is a coordinate branch of government, bearing great responsibilities. The judge that writes his own predilections into the law in disregard of constitutional principles or legislative or executive edicts that he interprets is not worthy of the great traditions of the bench. - The judge that quavers or retreats before an impending crisis of the day and finds in dialectics or weasel words or surrenders his own conviction for a passing expediency is likewise not born for the woolsack. -They will prove their worth by showing their independence and fortitude. Their dissents or concurring opinions may salvage for tomorrow the principle that was sacrificed or forgotten today. - Judges, like other leaders of thought, must be free to choose— and, being free, must have the daring to let their inner conscience cast their votes. They must be free to speak their minds— and the legal profession must help create an atmosphere of understanding and tolerance for their efforts. -In these critical days leaders in every walk of life must dare choose, publicly and with pride, our constitutional scheme of things in all its applications. They must dare choose it above all lesser things and reject the easy invitation of expedience or complacency. When the leaders make that choice, men of lesser stature and affairs will dare stake their all for freedom.

Judicial Activism

*Judicial Activism and Marshall Court* IV. Marshall Court (1801-1835) Marbury, McCulloch, Ogden 1. Bad results of strong federal government 2. Improper judicial methods of weak textual analysis and reading the Constitution with partisanship 3. Disrespect popular will and undermine democracy Marshall Court years confirm: 1. Judicial critique traces very start of America's judicial tradition; and 2. The Court has earned harsh criticism both through decisions that decrease governmental power, as in Marbury and the Contract Clause cases, and through decisions that expand governmental power, as in McCulloch and Ogden.

Constitutional Authority

*Judicial Activism* Courts play as vital a role in a constitutional democracy as elected officials. Justice Robert Jackson: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." (Graber, chap. 5, p. 105)

Constitutional Authority

*Judicial Restraint or Activism* Liberal constitutionalists - reject judicial activism when justices limit congressional power to enforce the Fourteenth Amendment while insisting that justice are doing job when striking down bans on abortion. Conservative constitutionalists - reject judicial activism when justices protect reproductive choice but claim justices promote democracy when using the Tenth Amendment to limit federal power and enforce constitutional limitations when declaring unconstitutional provisions of the Affordable Care Act of 2010.

Constitutional Authority

*Judicial Restraint* Judicial Restraint - agreed with Bickel that judicial power was suspect in a democratic society. Justice Felix Frankfurter: (Associate Justice: 1939-1962) "Courts are not representative bodies...they are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits...History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day....Primary responsibility for adjusting the interests which compete in the situation...of necessity belongs to Congress...We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it." (Graber, chap. 5, p. 105)

Constitutional Authority

*Judicial Review and Judicial Supremacy* 1. Judicial Review - power to ignore unconstitutional acts when resolving cases 2. Judicial Supremacy - power to establish principles than bind all other political actors Consensus by judges, elected officials, and citizens that courts have both powers

Jurisdiction and Policy Making

*Judicial Self - Restraint* 1. A Definite Controversy Must Exist - e.g., Cherokee Indians - A. No advisory opinions - but, Declaratory Judgment Act of 1934 - B. Standing - direct and significant injury e.g., President's line-item veto - C. Moot - e.g., DeFunis v. Odegaard, 416 U.S. 312 (1974) 2. A Plea Must Be Specific 3. Beneficiaries May Not Sue - e.g., Soil Bank Program 4. Appellate Courts Rule on Legal - Not Factual - Questions 5. Supreme Court is Not Bound (Technically) to Precedents 6. Other Remedies Must be Exhausted A. Three-tiered judicial hierarchy, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) B. Administrative Remedies 7. Courts Do Not Decide Political Questions Baker v. Carr - Justice Brenan 1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" e.g., foreign affairs and executive war powers 2. "A lack of judicially discoverable and manageable standards for resolving it;" e.g., partisan gerrymandering 3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;" 4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;" 5. "An unusual need for unquestioning adherence to a political decision already made;" 6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question." ^e.g., Pacific States Telephone & Telegraph v. Oregon, 223 U.S. 118 (1912) Oregon's referendum and Article IV, sec. 4 of the U.S. Constitution: "The United States shall guarantee to every State in this Union a Republican Form of Government..." 8. The Burden of Proof Is on the Petitioner -except civil rights jurisprudence, such as racial or gender discrimination subject to strict scrutiny and burden is on government to show compelling interest 9. Laws Are Overturned on the Narrowest Grounds Only A. Invalidate on statutory rather than constitutional grounds B. Invalidate only that portion of the a law constitutionally defective instead of overturning entire statute, e.g., coercive Medicaid expansion Affordable Care Act 10. No Rulings Are Made on the "Wisdom" of Legislation- e.g., Justice Roberts in NFIB v. Sebelius (2012) - "The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcingthose limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."

Judicial Process, chap. 4, pp. 72-85

*Other Remedies Must Be Exhausted* - Courts in the United States will not accept a case until all other remedies, legal, and demonstrative have been exhausted - Exhaustion of Remedies refers to possible administrative relief as well as adherence to the principal of a three-tiered judicial hierarchy - Judicial restraint means that judges do not jump immediately into every controversy that appears to be important or that strikes their fancy

Judicial Process, chap. 4, pp. 72-85

*Judicial Self-Restraint* -The activities that judges are forbidden to engage in, or at least are discouraged from engaging in, deal not so much with technical matters of jurisdiction as with justiciability— the question of whether judges in the system ought to hear or refrain from hearing certain types of disputes. -It is only by exploring both sides of this issue that insight into the role and function of the federal and state courts can be gained. In the following sections, ten separate aspects of judicial self-restraint, ten principles that serve to check and contain the power of American judges, will be examined. 22 - These maxims originate from a variety of sources— the U.S. Constitution and state constitutions, acts of Congress and of state legislatures, the common law tradition— and, whenever possible, their roots and the nature of their evolution will be noted. Some apply more to appellate courts than to trial courts, as will be indicated. - Although the primary examples provided will be illustrative of the federal judiciary, most apply to state judicial systems as well.

Constitutional Authority

*Judicial supremacy and constitutionalism* - Judicial supremacy supports constitutionalism. - Chief Justice Marshall in Marbury: "It is emphatically the province and duty of the judicial department to say what the law is." - If Constitution supports limited government, then officials who make law should not be given authority to determine constitutional limits of own power.

Jurisdiction and Policy Making

*Jurisdiction and Legislative Politics* - Except original jurisdiction of U.S. Supreme Court, Congress and state legislatures determine types of issues and cases under court's jurisdiction - 1. Civil Rights Act of 1968 = 2. Defense of Marriage Act of 1996 - 3. Ex Parte McCardle (1868)

Judicial Process, chap. 4, pp. 72-85

*Jurisdiction and Legislative Politics* -Congress and the fifty state legislatures determine the types of issues and cases the courts in their separate realms will hear. -Some judges and judicial scholars argue that the U.S. Constitution (in Articles I and III) and the respective state documents confer a certain inherent jurisdiction on the judiciaries in some key areas, independent of the legislative will. - Congress may advance a particular cause by giving courts the authority to hear cases in a public policy realm that previously had been forbidden territory for the judiciary. -Prior to 1968, the courts had no jurisdiction over incidents that stemmed from interference by one person with another's right to travel. Likewise, Congress may discourage a particular social movement by passing legislation to make it virtually impossible for its advocates to have any success in the courts. -In other words, while discussing what courts do or may do, we must not lose sight of the commanding reality that the jurisdiction of U.S. courts is established by "the United States of America in Congress assembled." 21 Likewise, the jurisdictions of courts in the states are very much governed by— and are the political product of— the will of the state legislatures.

Judicial Process, chap. 4, pp. 72-85

*Laws are Overturned on the Narrowest Grounds Only* - Judges have 2 common ways to exercise restraint o 1.) A judge may have the option of invalidating an official action on statutory rather than constitutional grounds ♣ Statutory invalidation means that a judge overturns an officials action because the official acted beyond the authority delegated to him by the law o 2.) Judges may if possible invalidate only that portion of the law they find constitutional defective instead of overturning the entire statute

Judges on Judging, Part II, pp. 126-131

*Legislative Process One of Compromise* -That process is one of compromise— of qualifying absolutes, of creating exceptions to general rules. -The clash of ideas may be so violent that a meeting of the minds seems out of the question. Where such cleavage is great and involves major issues, it may even tear a society apart. By the same token it can stop the legislative process or render it impotent, and thus deprive society of lawful and nonviolent means and methods of solving its problems. -When the breach between the pros and cons is not too great, the legislative process functions. Even then, the compromise between competing ideas that emerges in the final legislation may be more apparent than real. -For the legislative solution is often to write two opposing ideas into a statute. Without that solution enactment of the measure might, indeed, be impossible.

Judicial Process, chap. 5, pp. 92-100

*Merit Selection* Reformers have come up with a method other than nonpartisan elections to accomplish the goal of obtaining qualified state judges free from the taint of political bias. - Merit selection, by whatever name, has been around since the early 1900s as a preferred method of selecting judges. -The first state to fully adopt such a method was Missouri, in 1940, and such schemes have since become known as generic variants of "the Missouri Plan." -The states with Missouri-type plans use a combination of elections and appointments. In effect, this type of plan provides much greater influence from lawyers than any other selection method. -The governor appoints a judge from among several candidates recommended by a nominating panel of five or more people, usually including attorneys (often chosen by the local bar association), nonlawyers appointed by the governor, and sometimes senior judges. Either by law or by implicit agreement, the governor appoints someone from the recommended list. After serving for a short period of time, the newly appointed judge must stand for a retention election, at which time he or she, in effect, runs on his or her record. -Although most of our discussion in this section has centered on states using a Missouri Plan- styled method of merit selection, it is important to note that some of the states identified in Tables 5.1 and 5.2 as relying on merit selection forgo retention election in favor of legislative confirmation. -Despite the unhappy anomalies that occasionally accompany this form of judicial selection and retention, it still has a number of supporters, including retired Supreme Court justice Sandra Day O'Connor, who has advocated for states to adopt Missouri Plan selection mechanisms for years.

Constitutional Interpretation

*Methods of Constitutional Interpretation* 1. Textualism 2. Originalism 3. Doctrinalism 4. Structuralism 5. Prudentialism 6. Aspirationalism

Judicial Activism

*Modern Uses of Judicial Activism* 1. Any serious judicial error; 2. Any undesirable result; 3. Any decision to nullify a statute; or 4. A smorgasbord of these and other factors chosen ad hoc

Judicial Activism

*Reconceiving Judicial Activism* - Judicial activism should be reconceived as the abuse of such unsupervised power, exercised outside the bounds of judicial role. - Related to Bickel's countermajoritarian difficulty, but problem in this situation is Court's interpretation of Constitution which is difficult to change. Even without judicial review, unsupervised judging inherent in any system that leaves certain judicial decisions exclusively to judges. - Judicial independence - judges in their role as judges to articulate proper legal decisions. - Judicial activism - delineate improper uses of judicial power and discretion that countervene cultural norms regarding judicial role. - Lochner, Reconstruction, Dred Scott, and Marshall Court - plausible judicial activism only because the Court not only allegedly erred in each instance; the alleged error was non-judicial in nature, beyond the limits of judicial propriety. - Allegations of non-judicial decision-making are the conceptual core of judicial activism -Judges act unsupervised and it is their beliefs about their work often that is only operative check against judicial usurpation. Beliefs are influenced by cultural expectations from education, experimentation, debate, and experience. 1. Judicial activism not necessarily promote progressive ideology or increase individual rights, e.g., Lochner and Dred Scott are activist decisions that enhanced a particular form of liberty and property rights. 2. Judicial activism does not turn on a court's deference to other political entities. Some claim judicial activism as inadequate deference to Congress or executive branch. But, judge can be activist by deferring too much authorizing excessive governmental power; or refuse to defer without being activist, thereby properly enforcing the law.

Judges on Judging, Part II, pp. 126-131

*Search for Certainty* - Law is not what has been or is— law in the lawyer's sense is the prediction of things to come, the prediction of what decree will be written by designated judges on specified facts. - In layman's language law is the prediction of what will happen to you if you do certain things. -There are many reasons why this is so. No matter how clear and precise the code or other legal rule may be, the proof may be surrounded with doubt. - And even though the proof is clear to the advocate, the credibility of the witnesses may raise questions for the judge or jury. - Uncertainty is increased when new and difficult problems under ambiguous statutes arise. -And when constitutional questions emerge, the case is, as we lawyers say, "at large." -Certainty and unanimity in the law are possible both under the fascist and communist systems. They are not only possible; they are indispensable; for complete subservience to the political regime is a sine qua non to judicial survival under either system. -Disagreement among judges is as true to the character of democracy as freedom of speech itself. The dissenting opinion is as genuinely American as Otis' denunciation of the general warrants, as Thomas Paine's, Thomas Jefferson's, or James Madison's briefs for civil liberties.

Judicial Process, chap. 5, pp. 92-100

*Selection of the Chief Justice: The Cautionary Tale of the Wisconsin Supreme Court* -The process by which the position of the chief justice on a state supreme court is filled also warrants attention. -attention. In nearly half the states in the country, the chief position is filled the same way as any other position on the state's supreme court. In these states, a person is elected or appointed to fill that particular slot for the term of office, and then must be reelected or reappointed to the chief position just like any other justice wishing to retain his or her seat on the court. 63 -In slightly more than half of the states, the chief justice is selected among the justices already sitting on the supreme court. Most commonly in these states the chief justice is chosen by his or her peers on the supreme court. The remaining states select the chief based on seniority among the cohort of justices on the court. -The process by which the chief justice is selected is not immune to political manipulation. In January 2015, for example, the Wisconsin State Assembly voted down party lines to move forward with a referendum that would amend the state constitution and alter how the chief justice would be selected. 64 Supported by Republicans, the constitutional amendment would end the practice in place for a century of choosing the chief based on seniority in favor of having the justices vote to select the position. 65 Largely seen as an effort to push liberal chief justice Shirley Abrahamson from the position and funded by $ 600,000 from the Wisconsin Manufacturers and Commerce association, the referendum passed on April 7, 2015.66 Abrahamson, who last won reelection in 2009, has been on the Wisconsin Supreme Court since 1976 and, as its most senior member, has served as its chief since 1996.67 -In the wake of the certification of the constitutional amendment, the four conservative justices on the court outvoted their three liberal colleagues to place Justice Patience Roggensack as their new chief justice. 68 Roggensack herself cast the tie-breaking vote. 69 Abrahamson has sued to hold her position as chief until her current term expires in 2019.70 - However, the most high-profile and disturbing manifestation of the tension currently on the Wisconsin Supreme Court occurred in June 2011, when a conversation among most of the court's justices about a recent case and Abrahamson's leadership of the court turned heated and then physical. 71 Justice Ann Walsh Bradley accused Justice David Prossler of putting her in a chokehold, while Prossler contended that he put his hands up to push her away after she charged him with her fists raised. 72

Judges on Judging, Part II, pp. 126-131

*Stare Decisis Has Small Place in Constitutional Law* -When we move to constitutional questions, uncertainty necessarily increases. A judge who is asked to construe or interpret the Constitution often rejects the gloss which his predecessors have put on it. -For the gloss may, in his view, offend the spirit of the Constitution or do violence to it. That has been the experience of this generation and of all those that have preceded. It will likewise be the experience of those which follow. -And so it should be. For it is the Constitution which we have sworn to defend, not some predecessor's interpretation of it. Stare decisis has a small place in constitutional law. -The Constitution was written for all time and all ages. It would lose its great character and become feeble, if it were allowed to become encrusted with narrow, legalistic notions that dominated the thinking of one generation.

Chapter 6 123-134

*State and Local Party Leaders* -Presidential prerogative is dominant in the appointment of Supreme Court justices, so the role of regional party politicos in the choice of appeals court judges is minimal. -However, in the selection of U.S. trial judges their impact is formidable, especially when appointments occur in states where neither senator is of the president's political party. -In such cases the president need not fear that senatorial courtesy will be invoked against a district court nominee, and thus will be more likely to consult with state party leaders rather than with the state's senators.

Chapter 6 123-134

*The American Bar Association* - The ABA's role as an important player in judicial nominations began in 1946 with the creation of the ABA standing Committe on Federal Judiciary whos role was to evaluate the suitability of nominees to the federal courts - The committee's composition has long been a source of concern, both in terms of its lack of professional and demographic diversity and in terms of whether committee members engage in ideological or partisan bias in their evaluative process. -The committee's role in the appointment process is important because of the assumption, supported by scholarly studies, that a nominee with a low ABA rating is less likely to be confirmed by the Senate. Thus, bucking the recommendations of the committee is a risky business. - presidents are likely to think long and hard before nominating a candidate tagged with the "not qualified" label. -Racial minorities and women have been found to be given less qualified then men by the ABA standards committee -The other criticism of the ABA's role in the appointment process comes from those who argue that the ABA's committee members are liberal and therefore rate conservative nominees forwarded by Republican presidents less favorably.

Judges on Judging, Part II, pp 86-94,

*The Business of the US District Courts D Brock Hornby Judge, US District Court, District of Maine, and Associate Judge of Maine Supreme Judicial Court* -United States District Courts are the US federal national trial couts -With little public awareness, however, that business has changed dramatically over time: now, federal judges conduct fewer and fewer trials, and their sentencing authority has diminished greatly. But the volume of civil lawsuits and criminal prosecutions continues.

Chapter 6 123-134

*The Department of Justice* -Assisting the president and the White House staff in the judicial selection process are the two key presidential appointees in the Justice Department— the attorney general of the United States and the deputy attorney general. -Their primary job is to seek out candidates who conform to general criteria set by the president. -Once several names are obtained, the staff of the Justice Department will subject each candidate to further scrutiny. -They may order an FBI investigation of the candidate's character and background; they will usually read copies of all articles or speeches the candidate has written or evaluate a sitting judge's written opinions; and they might check with localparty leaders to determine that the candidate is a party faithful and is in tune with the president's major public policy positions. -In the case of district judge appointments, where names are often submitted by home-state senators, the Justice Department's function is more as a screener than as an initiator. -names, the Justice Department's primary duty is to evaluate the candidates' personal, professional, and political qualifications. In performing this role, the department may work closely with the White House staff, with the senators involved in the nomination, and with party leaders who may wish to have some input in the choice of the potential nominee.

Chapter 6 123-134

*The Federal Selection Process and Its Participants* -The skeletal framework of judicial selection is the same for all federal judges, although the roles of the participants vary depending on the level of the U.S. judiciary. - All nominations are made by the president after due consultation with the White House staff, the attorney general's office, certain senators, and other politicos. Furthermore, the FBI customarily performs a routine security check. - Various interest groups that believe they have a stake in the appointment may lobby for or against a candidate. - Also, the candidate's qualifications will be evaluated by a committee of the American Bar Association. - The candidate's name is then sent to the Senate Judiciary Committee, which conducts an investigation of the nominee's fitness for the post. - If the committee's vote is favorable, the nomination is sent to the floor of the Senate, where it is either approved or rejected by a simple majority vote.

Chapter 6 123-134

*The President* - Technically, the chief executive nominates all judicial candidates, but history has shown that the president manifests greater personal involvement in appointments to the Supreme Court than to the lower courts. There are two major reasons for this. -First, Supreme Court appointments are regarded by the president— and by the public at large— as generally more important and politically significant than openings on the lesser tribunals. -Presidents often use their few opportunities to for high court appointments to make a political statement or to set the tone of an administration. -Second, presidents are less likely to devote much attention to lower court appointments because tradition has enabled individual senators and local party bosses to influence and often dominate such activity. -The practice known as senatorial courtesy is a major restriction on the president's capacity to appoint district judges. This unwritten rule of the game has the following conditions: Senators of the president's political party who object to a candidate whom the president wishes to appoint to a district judgeship in their home state have a virtual veto over the nomination. -They exercise this veto through use of the blue slip— the printed form that a senator from the nominee's state is supposed to return to the Senate Judiciary Committee to express his or her views about the particular candidate. -Ideological division between the president and those in the Senate influences the use of blue slips. A senator who is ideologically distant from the president is more likely to return a blue slip with a negative recommendation, signaling that he or she intends to hold the nomination up in the Senate. - The president's relationship with the chair of the Senate Judiciary Committee is also relevant here. In recent decades, committee chairs have altered how much power they allow individual senators to have in unilaterally stopping forward movement on a nominee's confirmation in order to benefit the chair's political party. -For appointments to the courts of appeals, senatorial courtesy does not apply, because the vacancy to be filled covers more than just the state of one or possibly two senators. - But senators from each state in the circuit in which the vacancy has occurred customarily submit names of possible candidates to the president. - An unwritten rule is that each state in the circuit should have at least one judge on that circuit's appellate bench, a practice often followed when the vacancy is that of a state's only representative on the circuit bench. -Based on the U.S. Constitution's Recess Appointments Clause, the president also has authority "to fill up all Vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session." 37 -One reason why a chief executive may wish to make a recess appointment is to fill a judicial vacancy on a court that has a large backlog of business. The other reason is more political. A president may find it easier to secure confirmation for a sitting judge than for a candidate named while the Senate is in session. -However, use of the recess appointments for federal judges has, in recent decades, become rare and controversial.

Chapter 6 123-134

*The Senate* -The final step in the judicial appointment process for federal judges is a majority vote by the senate 2 views of the senates role in judicial nominations have prevailed 1.) the senate should go quietly along with the presidential choices unless overwhelmingly strong reasons exist to the contrary - view of presidents and some scholars 2.) The seanate has the right and the obligation to decide in its own wisdom whether it wishes to confirm or not to confirm an appointment - view of most senators and some scholars - Historically, for district and appeals court judges, once a nominee has been favorably voted on by the Senate Judiciary Committee, a confirmation vote in the full Senate happened quickly, often within a single day. -Even today, most lower court nominees that survive the committee hearing are confirmed by large margins or voice vote, although it often takes longer than the perfunctory and immediate full Senate vote of years past. -The record shows that presidents have met with the most success in getting their high court nominations approved when... 1.) the nominee comes from a noncontroversial background and has middle-of-the-road political leanings; 2.) the president's party also controls the Senate, or at least a majority shares the president's basic attitudes and values. - When presidents nominate a less well qualified, ideologically extreme candidate, especially when the president is in a weak position, then a conflictual vote is likely.

Judicial Process, chap. 4, pp. 72-85

*The Supreme Court Is Not Bound (Technically) by Precedents* If the high court is free to overturn or circumvent past and supposedly controlling precedents when it decides a case, this might appear to be an argument for judicial activism— not restraint. -However, this practice must be placed in the restraint column. - If the Supreme Court were inescapably bound by the dictates of its prior rulings, it would have very little flexibility. It would not be free to back off when discretion advised a cautious approach to a problem; it would not have the liberty to withdraw from a confrontation that might prove detrimental to the nation's or the Court's interests. -By occasionally allowing itself the freedom to overrule a past decision or to ignore a precedent that would seem to be controlling, the Supreme Court establishes a corner of safety to which it can retreat if need be. =When wisdom dictates that the Court change direction or at least keep an open mind, this principle of self-restraint is readily plucked from the judicial kit bag.

Constitutional Authority

*Three practical virtues of Judicial supremacy * 1. Constitutional debates settled authoritatively 2. Constitutional issues decided on basis of legal norms, not political expediency 3. Protect powerless minorities

Judges on Judging, Part II, pp. 126-131

*Uncertainty Necessary for Democracy* -So it is that the law will always teem with uncertainty. It has always been the case— and it always will remain that way under the democratic scheme of things. -The truth is that the law is the highest form of compromise between competing interests; it is a substitute for force and violence— the only path to peace man has yet devised -It is the product of attempted reconciliation between the many diverse groups in a society. The reconciliation is not entirely a legislative function. The judiciary is also inescapably involved. - When judges do not agree, it is a sign that they are dealing with problems on which society itself is divided. It is the democratic way to express dissident views. Chief Justice Hughes had this to say about the dissenting opinion: There are some who think it desirable that dissents should not be disclosed as they detract from the force of the judgment. Undoubtedly, they do. When unanimity can be obtained without sacrifice of conviction, it strongly commends the decision to public confidence. - But unanimity which is merely formal, which is recorded at the expense of strong, conflicting views, is not desirable in a court of last resort, whatever may be the effect upon public opinion at the time. This is so because what must ultimately sustain the court in public confidence is the character and independence of the judges. -They are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. . . . -A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into -That view was in the tradition of Thomas Jefferson who believed that the English practice of seriatim opinions was the desirable one. He thought each judge should write an opinion in every case so as to "throw himself in each case on God and his country; both will excuse him for error and value him for honesty."

Constitutional Interpretation

*V. Prudentialism* 1. Examine costs and benefits of different policies . 2. Justice Blackmun - if Roe v. Wade overruled harm the health of women, because of back-alley abortionists. 3. Justice Scalia - grant habeas corpus to alleged terrorists in Guantanamo Bay certainly cause more Americans to be killed - Boumediene v. Bush (2008) 4. Brown v. Board of Education II (1955) - forgo immediate desegregation in face of popular resistance.

Constitutional Interpretation

*VI. Aspirationalism* 1. Particular conception of justice underlying the Constitution. 2. Justice Kennedy in Lawrence v. Texas (2003) - liberty protects person unwarranted government intrusions priviate dwelling place. 3. Justice Brennan - ideal of libertarian dignity protected through law, i.e., capital punishment "cruel and unusual"

Constitutional Authority

*Who has constitutional authority?* - Question: Do the powers of judicial review and judicial supremacy mean the court has ultimate constitutional authority? - Graber: All governing institutions in the United States make authoritative constitutional decisions. - e.g., elected officials decide if death penalty cruel and unusual punishment; presidents pardon persons believed to have been unconstitutionally convicted of criminal offenses; Supreme Court did not determine whether Louisiana Purchase was constitutional or whether President Clinton committed impeachable offense when lied under oath; state elections include referenda on state constitutional amendments that may limit affirmative action or restrict marriage.