Tag: Supreme Court

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.

The Supreme Court’s Decision in Skilling

This morning the Supreme Court issued its long awaited decision in the case of Jeffrey Skilling.  The most important aspect of the case concerned the so-called “honest services” statute.  That law has been an amorphous blob that federal prosecutors could suddenly invoke against almost anyone.  All nine justices acknowledged the law had problems, but only three–Scalia, Thomas, and Kennedy–said the law was unconstitutionally vague.  The other six justices bent over backwards to “save” the law from invalidation–they ruled that the law should be narrowly interpreted.  Here is, I think, the most telling passage from the majority’s ruling:

“As to arbitrary prosecutions, we perceive no significant risk that the honest services statute, as we intrepret it today, will be stretched out of shape.”

Instead of strict rules and limits on government power, the Court is content to offer leeway to the prosecutors–some risk of arbitrary prosecutions is acceptable you see. 

The burden ought to be placed on the government–legislators and prosecutors ought to be able to justify every single case.  Instead, this Court needs to be persuaded that a significant risk of abuse exists.  Here is a passage from a Supreme Court case from years ago that gets it right:

“A criminal statute cannot rest upon an uncertain foundation.  The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.  Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.”

The second issue in the case concerned Skilling’s right to an impartial jury trial.  And it came as no surprise that the Court embraced a prosecutor-friendly view of the Sixth Amendment.  Skilling argued that the climate in Houston following the collapse of Enron was so hostile that he should have been granted a change in venue.  He’s right about that.  The prosecution should be indifferent as to whether they present their incriminating evidence in Houston or another city.  Instead, the Court shifts the burden to the accused and sniffs, “sorry, you have not clearly proven to us that you were prejudiced by biased jurors.  If someone could prove beyond a reasonable doubt that they had a biased jury, well that would be another story.” 

Here’s a modest proposal: This  summer each justice should represent some persons accused of crimes. 

For additional background, go here.

The Unbearable Vagueness of “Honest Services Fraud”

Cato adjunct scholar Tim Sandefur, who authored an amicus brief in the case of Skilling v. U.S., writes on his home blog:

Today, the Supreme Court decided the case of Jeffrey Skilling, the CEO of Enron, who had been convicted of the crime of “honest services fraud.” The statute, however, is so vague, that nobody knows what the term “honest services fraud” actually means. Pacific Legal Foundation (joined by our friends at the Cato Institute) filed a brief in the case arguing that statutes that are so vague violate the constitutional guarantee of due process of law—and that the constitutional protection against vague laws should apply in the business realm the same as anywhere else. Vague laws are dangerous because you cannot know what they prohibit and cannot therefore avoid breaking the law. It is unfair and unconstitutional to hold vague statutes over their head in such a way.

Unfortunately, the Court has in the past been reluctant to apply it outside the regular criminal context, on the theory that businesses are wealthier and can afford expert legal advice. But in a case like this, even the experts have no idea what the statute actually means. The federal circuit courts are in disarray as to what it means. And nobody should be convicted under a statute that is so broadly and vaguely worded, that even the prosecuting lawyer can’t tell you what that law actually means.

As they say, read the whole thing.