Tag: Supreme Court

Randy Barnett in the Wall Street Journal: “A Commandeering of the People”

Cato senior fellow Randy Barnett is the subject of the Wall Street Journal’s nearly-full-page Weekend Interview. Randy talks about interpreting the Constitution with “a presumption of liberty,” the subtitle of his book Restoring the Lost Constitution; about the Supreme Court’s expansion of government power from Wickard v. Filburn to Gonzales v. Raich; and especially about the constitutionality of the new health care bill and its individual mandate. Randy wrote an amicus brief with Cato in support of the Virginia attorney general’s challenge to the health care mandate.

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

For the full legal argument, read the brief.

Will Specter Vote Against Kagan?

I agree with Jillian Bandes’s characterization of the Democrats’ “bottom of the order” questioning (the committee being stacked 12-7, the day began with the junior Dems) and indeed was dreading having to sit through all sorts of parochial bloviations.  Even Al Franken wasn’t too exciting, just making the point Justice Kennedy was wrong not to consider in legislative history in arbitration cases and expounding at length on the theme that money in politics is bad and so therefore was Citizens United.  Kagan responded that “Congress’s intent is the only thing that matters [to statutory interpretation]”—a position sure to infuriate her future would-be colleague Justice Scalia—but also that the Court “should not re-write the law,” instead allowing Congress to correct unsatisfying judgments based on flawed legislative draftsmanship.  From this exchange I didn’t learn much about Kagan but did conclude that I wouldn’t ever vote for Franken for anything, except maybe the People’s Choice Awards should he ever return to show business.

The most memorable part of today’s first session of questioning (9am till after 1pm) was undoubtedly Arlen Specter pressing the nominee to answer questions about various lawsuits of special concern to him and which he detailed in several letters to Kagan about the questions he would ask.  One was a Holocaust survivors’ suit, one was by families of the victims of 9/11, and one regarded the Bush-era Terrorist Surveillance Program.  The first is at the cert petition stage before the Supreme Court, in the second Kagan as SG recommended that the Court deny review, and the third eventually will be seeking review of the lower court’s dismissal on standing grounds.  Kagan agreed that standing and other jurisdictional doctrines are important but would not discuss whether she would vote that the Court hear the cases or reverse the lower-court decisions.  Kagan pushed back repeatedly, saying “you wouldn’t want a judge who says she will reverse a decision without reading the briefs and hearing argument.”  Specter was extremely dissatisfied, to the point where his vote is legitimately in doubt.  Indeed, I would say now that Lindsey Graham is much more likely to vote for Kagan than Specter is.  Of course, Specter had voted against Kagan when she was nominated to be solicitor general last year—but he was a Republican at the time.

CP at Townhall

Kagan the Tight-Lipped, Fair-Weather Originalist

Here’s what you have missed if you don’t have the luxury of watching C-SPAN all day:

  • Senator Sessions went after Kagan hard on the Military-Recruiting-at-Harvard imbroglio.  I don’t think he did any damage—which I’ll define as convincing someone on the fence to go against her—but the thing to keep in mind here is that the Don’t Ask Don’t Tell policy that so enraged then-Dean Kagan was federal law, not military policy.  Punishing the military for an act of Congress you disagree with—one on which you advised President Clinton—is disingenuous at best.  And I say this even though Cato supports ending DADT and filed a brief against the Defense Department in the Rumsfeld v. FAIR case involving denial of federal funds to schools who hamper military recruitment (we argued that private schools, like Harvard, should have more freedom to design their policies than public schools; in no way did we support the tenuous statutory claims made by Kagan, which the Court rejected 8-0).  There are policy differences and legal advocacy, and then there’s the rule of law.
  • Kagan’s attempts to walk away from her “Confirmation Messes” law review article are simply unconvincing.  In that article, she said among other things that “[w]hen the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”  Now Kagan says she can’t even talk about whether past cases were correctly decided because they’re all “settled law.”  She can get away with this because of the sizeable Democratic majority in the Senate, but there is simply no principled way anyone can argue that what Kagan wrote in 1995 is now somehow wrong.  Yes, nominees should not be forced to pre-judge cases—Kagan will be fully justified in refusing to opine on the constitutionality of the individual health care mandate—but how are we to get to know a nominee’s judicial philosophy if she declines to answer questions about that philosophy?
  • In her response to Senator Kohl about whether she’s an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the “original intent” of the Founders.  This line of analysis is completely wrong.  It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case.  So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously.  Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution.   I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service.  Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.
  •  Whether it be campaign finance, abortion, executive detention, or anything else, Kagan is tending to answer questions by reference to existing precedent rather than an affirmative statement by her of the law.  This is good strategy—she shows she’s knowledgeable without tipping her hand on what she actually thinks—but fails to meet the Kagan Standard for candor from nominees.  She’s no longer auditioning to be a constitutional law professor or the government’s advocate: it is completely fair to ask her to give us some actual opinions of what she thinks about the state of the law, not just describe it.
  • At times, Kagan manages to engage in some cordial rapport and even jokes with several senators.

The more I watch Elena Kagan, the more I’m liking her personally and the more I’m concerned about what she’d be like on the bench.

CP at Townhall

Undermining Freedom of Association

Dissenting today in Christian Legal Society v. Martinez, Justice Samuel Alito put his finger on the majority’s underlying principle: there shall be “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” That pretty much says it all.

This case arose after the Hastings College of Law, a large public law school in San Francisco, denied the school’s tiny Christian Legal Society the same recognition and support it granted to some 60 other student organizations on the ground that CLS, contrary to the Hastings nondiscrimination policy, discriminates by requiring that its members and officers abide by certain key tenets of the Christian faith. In a word, in the name of anti-discrimination, Hastings, a government institution, discriminated against CLS, which was simply exercising its speech, religious, and associational rights. Cato filed an amicus brief in the case, written by the University of Chicago’s Richard A. Epstein, supporting the CLS students’ right to freedom of association.

But it was not to be. Justice Ruth Bader Ginsburg, writing for the Court’s three other liberals plus Justice Anthony Kennedy, held that the school’s “all comers” policy, which requires that student organizations accept anyone as members and even as officers, is “constitutionally reasonable,” taking into account all of the surrounding circumstances. That is a new standard for constitutionality when it comes to fundamental rights. And if students, whatever their interests or values, cannot form organizations limited to people who share those interests and values, what’s the point of having student organizations at all? In a word, like the mugger who says “Your money or your life,” today’s opinion enables Hastings to say, “If you want benefits otherwise available to all, you’ve got to give up your right to freedom of association.” No public institution should be able to put people to such a choice.

The Court Restores a Fundamental Right

Today is a big victory for gun rights and a bigger one for liberty.  The Supreme Court has correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government.

It could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions, and that all individuals possess certain fundamental rights.  It is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.

Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment.  Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”

Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess—and indeed it is “essential to the preservation of liberty.”  The Framers of the Fourteenth Amendment—the most important “Framers” in this context—plainly deemed this right “necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.”  All arguments to the contrary lack legal, historical and even philosophical basis.

And so it is a very good thing, again for liberty, that the Court needs Thomas’s fifth vote to rule as it does: while the plurality declines to reconsider the old and discredited Privileges or Immunities precedent, Thomas’s clarion call for a libertarian originalism provides a step on which to build in future.

Finally, as we celebrate the belated recognition of a precious right—the one that allows us to protect all the others—we must be shocked and saddened to see four justices (including Sonia Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process.  This is a nation of laws, not men—a republic, not a pure democracy—and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote.  Thank God that, in this case, that vote was Justice Thomas’s.

More Questions for Kagan

Building on Tim’s post about George Will’s latest column, and under the category of great minds thinking alike—at least with respect to what we need to see at the Kagan hearings next week—I also have an article proposing lines of questioning for the Supreme Court nominee

Several of my issue areas overlap with Will’s, and then I conclude:

Of course, Kagan will attempt to deflect these queries—or give a law professor’s explanation without providing her own views (which caused Sen. Arlen Specter to vote against her nomination to be solicitor general).

But the role of a justice is different from that of the solicitor general, who merely uses existing law to argue the government’s case. Moreover, as a leading scholar argued in an influential 1995 article, “the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”

That scholar? Elena Kagan.

She continues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add, and the direction in which she would move the institution.”

If senators ask tough questions about the scope of government power, and Kagan refuses to answer, Kagan will have failed the Kagan standard.

Read the whole thing (which I’m told has been published in several papers around the country this week).  Josh Blackman also has an interesting series of questions.

George Will Has Questions for Elena Kagan

George Will has some excellent questions for Supreme Court nominee Elena Kagan. 

Here’s an excerpt:

The government having decided that Chrysler’s survival is an urgent national necessity, could it decide that Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?

If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

In Federalist 45, James Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

It is unfortunate that Will’s column did not make the hard copy of today’s Washington Post.  (The column is dated today, but it’ll likely appear in his regular Sunday space.) Senators on the Judiciary Committee need to read this stuff.