Tag: thomas

House Leadership’s Transparency Leadership

Last week, House Speaker John Boehner (R-OH) and Majority Leader Eric Cantor (R-VA) wrote a letter to the House clerk calling for new data standards that will make Congress more open and accountable. Spot on.

The THOMAS legislative database was a huge improvement when it came online in 1995 at the behest of the new Republican Congress, but the Internet has moved on. Today, publishing text or PDF documents is inadequate transparency. It’s more important to make available the data that represent various documents and activities in the legislative process. “Web 2.0” will use that data various ways to deliver public oversight.

I’ll have much more to say in the near future, but here are the kinds of things get to full transparency, which the House leaders’ letter appears meant to imply:

  • Specific Formats: Documents and data must be published in specific formats that allow Web sites, researchers, and reporters to interpret and use text and data easily and automatically. The SEC recently began requiring businesses to report financial information in a format called eXtensible Business Reporting Language (XBRL). This will improve corporate transparency and enable investors to make better decisions. The public should have equally good information about government.
  • Flagging/Tagging: Within these data formats, key information must be “flagged” or “tagged” to highlight the things that matter: spending proposals, agencies and programs affected by a proposed law, recipients of federal money, existing statutes that may be amended, and so on. Flagging/tagging will make the relevance of documents and information immediately apparent to various interests.
  • Bulk Access and Real-Time Updates: Documents and information must be available in bulk, so that new users have full access, and it must be updated in real time, so the public can “see” changes as they happen. It also must be version-controlled so the “story” of a policy’s formation or execution can be told. The public should never have to learn what is in a bill after it passes.
  • Authoritative Sources: The mishmash of data sources that now exist must be replaced by authoritative sourcing. Congress, the White House, federal agencies, and other entities must publish and maintain their documents and data. The public must know once and for all where the definitive versions of documents and data will be.

Disclosure—simply “putting bills online”—was the beginning of the legislative transparency project, not the end. The many transparency Web sites out there have the bills, but they don’t have the data they need to help the public get their government under control.

As I suggested some months ago, House Republicans are positioned to take the transparency mantle from President Obama and the Democrats. Web 2.0 thought leader Tim O’Reilly—no Republican cheerleader—has already called the race, Tweeting last week, “The ‘R’s in Congress are doing better on this than ‘D’s did.” Assuming action consistent with this letter, the House Republicans will indeed soon have the transparency lead.

Thomas Stays the Course, Scalia Returns to the Fold

A bit lost in last week’s legal news regarding a majority of states now suing over Obamacare, the House voting to repeal Obamacare, and the anniversary of Citizens United, was the first interesting Supreme Court decision of the term.  Most notably, Justices Scalia and Thomas continued their valiant struggle to limit the scope of the constitutional misnomer that is “substantive due process” doctrine.

The case was NASA v. Nelson, a suit challenging the background checks for perspective NASA contractors as violating an evanescent constitutional right to informational privacy. The Court ruled unanimously against the challengers, with Justice Alito writing for the majority that, regardless whether such a right exists, it was not violated by the government’s probing questions on sexual history and mental health.

Justices Scalia and Thomas rightly found problems with this essentially useless ruling. Scalia, joined by Thomas, concurred in the result but wrote separately to say that if a right doesn’t exist then the Court should just say so.  He would have simply held that there is no constitutional right to “informational privacy”:

I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law….  And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States….  To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.

In the course of his typically entertaining opinion we see Scalia back to his old self, caustically lambasting the “infinitely plastic concept of ‘substantive’ due process” and suggesting that it is “past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.”

Indeed, the seemingly oxymoronic concept of substantive due process has received much attention as of late, particularly in last term’s groundbreaking case of McDonald v. Chicago. McDonald, remember, examined whether the individual Second Amendment right articulated in District of Columbia v. Heller applied to the states.  I previously blogged about McDonald here and here, for example.

McDonald came out the right way but for the wrong reasons.  Rather than enforcing the right to keep and bear arms against the states via the Privileges or Immunities Clause, as nearly all constitutional scholars of every ideological stripe contend should be the case, the Court chose to invoke substantive due process.  Even Scalia agreed with this perversion, because apparently 140 years of bad precedent overrides originalism or whatever other interpretive theory he claims to support.  

Justice Thomas, on the other hand, agreed with the principled approach favored by most scholars (and Cato’s own amicus brief) and wrote separately to advocate overruling the Slaughter-House Cases and reinvigorate the Privileges or Immunities Clause.  Curiously, Justice Thomas couldn’t resist filing a separate one-paragraph concurrence in Nelson, seemingly for the sole purpose of citing—and reminding Justice Scalia of—his McDonald concurrence.

After all, Scalia is often regarded as the font of originalism.  In reality, he has proven himself to be an originalist of convenience, accepting corrupt interpretations when the mood strikes him.  During oral arguments in McDonald, for example, Scalia mocked attorney Alan Gura for daring to make an originalist argument that would overturn an old precedent.  Why challenge the substantive due process doctrine, wondered Scalia, when “even I have acquiesced to it?”

Scalia’s faint-hearted originalism does a disservice to that jurisprudential method.  With his acerbic wit, infectious personality, and unrivaled rhetorical skills, Scalia has become the poster-boy for originalism.  In response, the academic elite—who overwhelmingly reject originalism—focus on every Scalia opinion, hoping to catch a glimpse of the true justice who uses originalism to hide decisions often based largely on policy preferences.

Indeed, given Scalia’s pointed and insightful prose, there is always an opportunity to hoist him by his own petard.  In McDonald, for example, it was Scalia who, to use his own Nelson lines, “invoked the infinitely plastic concept of ‘substantive’ due process,” which of course “does not make this constitutional theory any less invented.”  For more on this, see “Judicial Takings and Scalia’s Shifting Sands,” the law review article I recently published with my colleague Trevor Burrus—in which we criticize Scalia’s conflicting views on constitutional fidelity in two cases from last term, McDonald and Stop the Beach Renourishment.

Recall that originalism involves a jurist’s resisting personal biases by trying to maintain fidelity to the very document that gives him his job.  This highly textualist approach is what makes Justice Thomas arguably the most predictable justice in the history of the Court.  And in the law, predictability is a good thing.  Underscoring this point is the concern about Justice Scalia’s vote in the Obamacare litigation—because of his concurring opinion in the medicinal marijuana case of Gonzales v. Raich—while Justice Thomas’s vote is assumed to be in hand.  (Precisely because Scalia is somewhat outcome-oriented, however, I personally don’t share that concern.)

I just hope that going forward, Justice Scalia will have the same thing for breakfast that he did the morning NASA v. Nelson came down.

H/t to my sometimes collaborator Josh Blackman; head over to his spectacular blog to read more extensive analysis.  And thanks to Trevor Burrus for his help with this post.

Is the Supreme Court Conservative?

In my last two posts I described how the New York Times misunderstands the Constitution and highlighted Reason’s great new article comparing conservative and libertarian theories of constitutional interpretation.  Well, now I have a chance to put those topics together, in response to yesterday’s big front-pager entitled “Court Under Roberts Is Most Conservative in Decades.”

Times Supreme Court reporter Adam Liptak – generally a sharp and honest broker – surveys some new political science literature and concludes, among other things, that since John Roberts became Chief Justice five years ago, the Court has been moving (modestly) to the right and is now “the most conservative one in living memory.”  Ed Whelan debunks both of these empirical claims at NRO’s Bench Memos blog – I disagree with Ed on some legal issues, not least unenumerated rights, but his fisking is worth a read – and I want to add two broad points.

First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable.  Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations ”liberal” while those favoring prosecutors, employers, and the government “conservative” (as the scholars who maintain the database maintain)?  What about union members suing unions or large corporations suing each other?  What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term’s ”honest services fraud” cases)? What about “reverse” racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)?  What about an oil company suing the EPA?  A financial services company suing the SEC (or vice-versa)?

And what about civil rights claims involving the Second Amendment, or the Fifth Amendment’s Takings Clause, or the right to earn an honest living? Are those not ”real” civil rights claims?  What if it’s poor people losing their houses to a big developer who promises a town it will create jobs and increase tax revenues?  What if it’s black hair braiders who can’t set up their shops without passing haridressing license exams requiring expertise only with white hair styles?  What if it’s women who want to buy and carry handguns to defend themselves on their walks home in a dangerous neighborhood?  Attempts to code such cases – like attempts to decide them based on “empathy” or support for the “little guy” – are bound to fail.

Second – and this ties together all the criticisms – the labeling of decisions (and courts!) as “conservative” and “liberal” ultimately boils down to results-based analysis that equates law with politics.  The liberal political position is to favor abortion rights, separation of church and state, gun control, wealth redistribution, economic regulation, and racial preferences, and to disfavor the death penalty.  It is then obvious that court rulings against those positions must be “conservative.”  Add in the fact that the researchers performing all these analyses –and reporters writing about them – are themselves quite “liberal” and it becomes all the more alarming when the Supreme Court moves in a “conservative” (= wrong) direction.

But you can’t simply code cases, tally up votes, and call it a day.  Is there no difference between a vote to uphold restrictions on partial-birth abortion and one to overturn Roe v. Wade?  Is voting one way because of stare decisis the same as voting that way because you think the underlying precedent is correct?  Is a vote to overturn the Slaughterhouse Cases and revive the Privileges or Immunities Clause the same as one to “incorporate” via the Due Process Clause?

And what about all those unanimous and “odd bedfellow” cases – the ones where Justices Scalia and Ginsburg are on one side and Justices Breyer and Alito on the other?  Are Scalia and Ginsburg simply more “liberal” when it comes to the Sixth Amendment’s Confrontation Clause?  Is a judge who votes to strike down economic regulations while also recognizing a broad right to habeas corpus just a “moderate” (or perhaps “confused”)?  Or is that judge simply a “libertarian” as a matter of public policy?

While we’re at it, look at the First Amendment.  How do you account for the leading pro-free speech justices the last 20 years being Kennedy, Thomas, and Souter?  Is a vote allowing a statute that criminalizes certain kinds of disfavored speech “liberal” or “conservative”?  (If you have a ready answer, contrast what you think about hate speech laws with what you think about anti-pornography laws.)

Put simply, law matters.  Judges are not super-legislators voting on their preferred policy positions; they have different jurisprudential theories, some of which lend themselves more to “liberal” political results, some less, but hopefully it’s the Constitution and statutes that ultimately lead to those results over the long term.

In short, Adam, c’mon, covering the judicial branch is not like covering the political branches.  You know the difference between the Court and Congress so don’t allow your readers to think there isn’t one.

Justice Thomas, Pandora, and Stephen Colbert Walk into a Gun Store…

My sometime co-author Josh Blackman points out a parallel between Justice Thomas’s fascinating concurrence in McDonald v. Chicago – which extended the right to keep and bear arms to the states – and the “Keeping Pandora’s Box Sealed” article we published earlier this year.

Justice Thomas in McDonald v. Chicago:

With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

Blackman & Shapiro in Pandora’s Box:

The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning”  but the Supreme Court now has the opportunity correct this mistake.  Taking up Justice Thomas’s gauntlet, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning.

Relatedly, for my attempt to explain the meaning of the right to keep and bear arms while talking to a crazy character and a humorless gun-control advocate, see my recent appearance on the Colbert Report.

A Few More Points on McDonald

I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:

  • Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause.  No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause – just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
  • Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision.  While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes.  Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states.  That means P or I is relevant and enters the casebooks and Court precedent.
  • The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments.  They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age.  This may or may not be correct as a matter of policy or social science – the evidence I’ve seen seems to point against them – but it’s irrelevant to the legal analysis.  If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate.  As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation.  Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
  • Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible.  One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”  The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
  • Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous.  There but for the grace of God goes any right – and any limitation on government power.  As I said yesterday, “Thank God that vote is Justice Thomas’s.”

For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.

The Use and Misuse of Foreign Law in U.S. Courts

On Tuesday I discussed the Supreme Court’s decision to strike down laws that allow juveniles to be sentenced to life without parole (LWOP) for non-homicide crimes.  What concerns me here isn’t so much the morality or policy wisdom in applying such sentences – though Chief Justice Roberts makes some good policy points in his concurrence – or even the interpretation of what constitutes a “cruel and unusual punishment” – which I think Justice Kennedy mishandles in a confusing discussion of national consensuses. 

No, the most troubling part of that case was the unfortunate reference to foreign authorities to support the Court’s interpretation of the Eighth Amendment.  Justice Kennedy notes that juvenile LWOP has been “rejected the world over.”  “The judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency,” he writes, “demonstrates that the court’s rationale has respected reasoning to support it.”

Justice Thomas, in his dissent, disputes Justice Kennedy’s math, noting that 11 countries allow the punishment. More importantly, “foreign laws and sentencing practices” are “irrelevant to the meaning of our Constitution.”  He adds that most democracies around the world remain free to adopt the punishment should they wish to. “Starting today,” Thomas concludes, “ours can count itself among the few in which judicial decree prevents voters from making that choice.”

And that’s the crux of the matter: citing foreign law, using it to support a given reading of domestic law undermines democratic self-governance.  The interpretation of the U.S. Constitution should depend on that document’s text, structure, and history, what it means in the context of the American polity.  Even if a judge cares about ”evolving standards of decency” or invokes the “living Constitution,” it should be the updated standards in America that matter, or the opinions and values of modern Americans

That is, federal judges derive their powers from the Constitution, which is a wholly American document.  To the extent they use foreign extrinsic evidence to interpret this document, they are engaging in something – comparative law? social science? – that is not judging.  It’s not a matter of being closed-minded or provincial – I actually enjoy reading comparative political research, and think our legislators and constitutional draftsmen engage in malpractice if they don’t use it – but, as Justice Thomas describes in Graham, the judicial role is different than the legislative or academic one.

Now, in practice U.S. courts actually rarely cite foreign law, and most of the time when they do it’s not controversial. For example, it’s relevant to see how all the contracting parties interpret a treaty, because you want a treaty (a contract among nations) to be understood the same way everywhere. Similarly, foreign court pronouncements are relevant to interpreting customary international law – the law of nations as the Framers understood it – to the limited extent it applies to a given case (crime on the high seas and the like). Next we have the coordination of litigation, with international companies suing each other based on contracts that specify that “X” provision is subject to British law whereas “Y” deals with Hong Kong law, and that the arbitration forum is supposed to be Switzerland: here the citation of foreign law is absolutely appropriate. Another appropriate use is in conflict of laws analysis: figuring out which law applies and sometimes even applying foreign law as binding in a dispute.

But using foreign law to interpret domestic law, and especially the Constitution, is problematic – but the Supreme Court does it more than lower courts, particularly in high profile cases: those involving the culture wars, moral issues like the death penalty and abortion, and other charged cases like affirmative action and sex discrimination.  Libertarians should not welcome this trend because it signals judging based on something other than the principled reading of our own laws – in short, judicial usurpation of the policy-making function.

Hans Bader of CEI provides a longer write-up of Graham, and here again is Cato’s brief. For a pithy critique of the improper use of foreign law by U.S. courts, see Richard Posner’s now-famous article in Legal Affairs.  And for an in-depth and entertaining exploration of these issues, read or watch a debate Justices Scalia and Breyer had in 2005.

Coincidentally, the same day the Court issued both Graham and Comstock (which I discuss here), it also decided an important case, Abbott v. Abbott, that uses foreign law to interpret an international treaty on child abduction.  (While I haven’t yet gone through the Abbott decision, both the majority and dissent are correct to use foreign law to help them reach their conclusions.)