Topic: Law and Civil Liberties

Scott Brown and the Future Supreme Court Vacancy

Josh Blackman and Lyle Denniston offer some thoughts on the effect of Scott Brown’s Massachusetts earthquake on the looming retirement of – and the nomination of a replacement for – Justice John Paul Stevens.  Josh and Lyle both latch onto the idea that Brown’s providing the 41st vote to sustain a potential Republican filibuster could cause President Obama to nominate someone more moderate than would be the case if the Democrats had maintained their super-majority.  Lyle goes on to speculate that both Obama and Senate Democrats, looking to this fall’s election, will generally want to tack right in the face of an emboldened GOP and impatient electorate.

I think this sort of analysis is a misapplication of otherwise correct political analysis to the sui generis event that is a Supreme Court nomination.  Yes, Scott Brown’s presence in the Kennedy people’s seat will change the dynamic of the health care debate, definitively kill cap and trade, otherwise alter the Democrats’ legislative agenda – and even affect lower court nominees.  But I’m not so sure it will affect Obama’s calculus in picking a new Supreme Court justice.

Here’s why:  Despite having been a constitutional law professor – whom I did not have when I was in law school, though I passed him in the halls a few times – the president has not really tried to advance his ideological agenda in the courts.  It’s bizarre, really, that judicial nominations have not at all been a priority for this administration given that few people pay attention to lower court appointments and this could have been a place where the president could have thrown some bones to his base at little political cost (and certainly far less cost than the rest of his domestic agenda).

Moreover, based on the Sotomayor nomination, we see that when it comes to the Supreme Court, Obama is much more about affirmative action than appointing either the best-qualified Democrats or the most ”progressive” ones (or both, to provide a counterweight to Justice Scalia).  (Note that Sotomayor at the time of her nomination was nowhere near the best or most left-wing member of the federal judiciary.)  Even with a filibuster-proof Senate majority, we would have been unlikely to see a Cass Sunstein or Harold Koh pick – though each took not insignificant heat and delay in being confirmed to regulatory czar and head State Department lawyer, respectively.  (And Larry Tribe is too old.)

With Sonia Sotomayor, Obama hit the “twofer” of a woman and a Hispanic (the first unless you count Benjamin Cardozo).  With the Stevens replacement, women and minorities are still slightly preferred but the key “diversity” quota to fill is “non-judge” – and, per the above, a non-controversial one on whom the president won’t have to spend much political capital.

And so, while the prohibitive favorite – solicitor general Elana Kagan (and a woman) – is no surprise, you heard it here first that the other likely nominees, in no particular order, are Janet Napolitano (DHS secretary, woman), Deval Patrick (Massachusetts governor, black), Jennifer Granholm (Michigan governor, woman), Kathleen Sullivan (former Stanford dean, lesbian), Amy Klobuchar (senator, woman), and Akhil Amar (Yale law professor, South Asian).  I’ll comment on their relative merits in future posts, but nobody on that list is both a radical and an intellectual heavyweight, and the list has not changed with Scott Brown’s election (though the indirect spotlight during the campaign on Gov. Patrick’s unpopularity might have hurt his chances).

The Snowe Non-Option

Jonathan Chait thinks that if Scott Brown becomes the 41st vote against President Obama’s health plan, supporters could “Go back to Olympia Snowe” to secure the necessary 60th vote.  After all, “Her substantive demands have been met.”

Perhaps Chait forgets that Sen. Snowe (R-ME) – along with Sen. Susan Collins (R-ME), and every other Senate Republican – voted to declare an individual mandate unconstitutional.  During the floor debate, Sen. John Ensign (R-NV) took the unusual step of raising a constitutional point of order against the bill’s individual mandate.  According to the presiding officer:

The question is on agreeing to the constitutional point of order made by the Senator from Nevada, Mr. ENSIGN, that the amendment violates Article I, Section 8 of the Constitution, and the Fifth Amendment.

Snowe’s “aye” vote makes it hard for her to support any bill that includes an individual mandate.  If she were to vote for an individual mandate after declaring that such a law would violate the Constitution, Snowe could reasonably be accused of violating the oath she swore to the Constitution upon joining the Senate.

Yet Democrats are unlikely to support any bill that does not include an individual mandate.  As President Obama told a joint session of Congress, his plan “only works” if lawmakers force everyone to purchase government-designed health insurance.

Racial Politics and the Supreme Court

Lauren Collins has a long and interesting profile of Justice Sonia Sotomayor in the January 11 New Yorker. It’s full of heartwarming stories about her hard-working parents, her dedication to education, her warmth to friends and law clerks, and so on. Though it does include this vignette that seems to corroborate controversial claims that she was “a bully on the bench”:

In early December, during oral arguments for United Student Aid Funds Inc. v. Espinosa, Sotomayor cut off a lawyer as he attempted to answer a question posed by Justice Ginsburg. “Counsel, may I interrupt for just one moment, because I—there is something needling at me that I do need an answer to,” Sotomayor said. According to Law.com, which reported on the incident in a story headlined “Sotomayor Collides with Ginsburg During Questioning,” Justice Stephen Breyer turned to Sotomayor as though to intervene. Before he could, Ginsburg shot back, “And I’d like him to answer the question that I asked him first.”

But what really struck me in the article, and what appears to be new reporting, was this discussion of the explicitly racial politics that led up to her nomination. Maybe I’m just naive, and certainly I wasn’t under the impression that race, religion, gender, and other such factors are absent in the selection of our nine most trusted judges. But this really seems like the way you put together a balanced ticket in a political campaign, not the way you choose a wise justice:

Is Justice Kennedy Libertarian?

Early last year, Cato hosted a book forum for Helen Knowles’s The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.  This really is a remarkable book, with an ambitious goal: trying to make coherent sense of the oft-frustrating “swing justice.”  And now I have a lengthy review of it that just came out in the latest issue of the Harvard Journal of Law & Public Politics (where Bob Levy also has an essay, on the aftermath of District of Columbia v. Heller).

Knowles makes the provocative argument that Justice Kennedy’s jurisprudence is “modestly libertarian.”  I think that this argument, in the limited ways Knowles makes it – with respect to free speech, equal protection, and individual dignity – is probably sound.  Still, that deduction is a small discovery considering the broad swath of Supreme Court jurisprudence.  Moreover, it says little about whether Kennedy is faithful to the Constitution, which is a stronger measure of libertarianism (as Randy Barnett described at Cato’s 2008 Constitution Day Conference in his B. Kenneth Simon Lecture in Constitutional Thought, reprinted in the latest Cato Supreme Court Review).

Here’s how I conclude:

Good on speech and race, bad on government power, and ugly on abortion and the death penalty, Justice Kennedy is a sui generis enigma at the heart of the modern Supreme Court.  However new Justice Sonia Sotomayor affects the Court’s dynamics, it is unlikely that Justice Kennedy will shift from his role as the deciding vote in most controversial cases.  Helen Knowles has thus done us a great service in deconstructing Justice Kennedy’s faint-hearted libertarianism and helping us better understand the “sweet mystery” of his jurisprudence.

For details on how I reached this conclusion, read the full review (which you can also download from SSRN).  I should add that Knowles’s book is more useful to us Court-watchers than Frank Colucci’s Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty – whose shortcomings I won’t detail but instead refer you to Eric Posner’s thoughtful critique.

‘A Career Where X-Ray Vision And Federal Benefits Come Standard’

That’s the slogan the Transportation Security Administration is apparently using to entice people to apply for jobs as airport screeners. Now that they’re preparing to expand the use of whole body imaging scanners, which can produce moderately detailed nude images of travelers, maybe they should consider a tagline that doesn’t sound like it’s designed to recruit voyeurs.

Michael Savage: Still Banned in the UK

In my Policy Analysis “Attack of the Utility Monsters,” I noted that U.S. talk radio host Michael Savage had been preemptively banned from entering the United Kingdom, for fear that he would incite hatred on arrival. I also noted that the ban had been rescinded – which, anyway, it appeared to have been at the time. Today I read that Savage’s travel ban is back on again.

What had Savage done that was so terrible? I’m not exactly sure, but here are some things that he’s said:

On homosexuality, he once said: “The gay and lesbian mafia wants our children. If it can win their souls and their minds, it knows their bodies will follow.”

Another of his pet topics is autism, which he claims is a result of “brats” without fathers.

He has also made comments about killing Muslims, although in one broadcast he cited extremists’ desires to execute gays as a reason for deporting them.

None are sentiments I agree with. In fact, I think all of them range somewhere from foolish to idiotic. Which is exactly why I’d welcome Michael Savage into a liberal, tolerant society: Let him contend with his betters, and he will lose. Treat him like a danger, and the tolerant society will appear weak – and intolerant.

Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power

Today I went to the Court to watch the argument in United States v. Comstock, which I blogged about previously and in which Cato filed an amicus brief.  As I also blogged previously, Cato’s arguments so concerned the government that the solicitor general spent four pages of her reply brief going after them.

At issue is a 2006 federal law that provides for the civil commitment of any federal prisoner after the conclusion of his sentence upon the appropriate official’s certification that the soon-to-be-released prisoner is “sexually dangerous.”  The problem is that, while states have what’s called a “police power” to handle this sort of thing – to appropriately deal with with threats to society from the dangerously insane and so forth – the federal government’s powers are limited to those enumerated in the Constitution.  And I’m sorry, there’s no power to civilly commit people who have committed no further crime beyond those for which they’ve already been duly punished.

The government, having abandoned its Commerce Clause argument – a big loser in the lower courts – relied at the Supreme Court on the Necessary and Proper Clause.  This clause says that Congress shall have the power to “make all laws which shall be necessary and proper for carrying into execution [the specific powers listed in Article I, section 8], and all other powers vested by this Constitution in the government of the United States.”

In other words, we have a government of delegated and enumerated, and therefore limited powers.  As Ryan Lirette put it in National Review Online last week,  ”Congress may not search every corner of our country looking for problems to vanquish.  Instead, Congress must be able to justify each law it passes with a specific congressional authorization.”

The solicitor general contends that civilly committing the sexually dangerous is “necessary and proper” to regulating the federal prison system – which itself is not an enumerated power but ancillary to enforcing federal criminal laws that Congress is appropriately empowered to make.  At the argument, solicitor general Kagan further justified the relevant provision as related to “responsibly” releasing federal prisoners.

I don’t think her “cascading powers” theory of the Necessary and Proper Clause is a winner – for reasons I describe in my recent podcast – and Justice Scalia also wasn’t convinced.  Justice Breyer, however, at one point asked where the Constitution prohibited the federal government from “help[ing] with” a problem it identified (see page 31 of the transcript) and in general was hesitant to find limits to congressional action to solve big policy areas.

Breyer has it all backward: We don’t operate on the premise that the government has full plenary power to do whatever it thinks is best, for the “general welfare,” for “the children,” for “society,” or for any particular group, checked only by specific prohibitions.  Instead, our system of government – our constitutional rule of law – provides for islands of government involvement in a sea of liberty.  It is individual people who can do whatever they want that isn’t prohibited by law, not the government.

And so we’ll see soon enough which vision of the relationship between citizen and state the Supreme Court embraces.  Along with Justice Breyer, Justices Stevens and Ginsburg also were not very sympathetic to the federalism and libertarian arguments ably presented by federal public defender G. Alan Dubois.  Along with Justice Scalia, Justice Alito was (refreshingly) skeptical of undue government power – and one would expect (the silent) Justice Thomas to be in that category as well.  Justice Sotomayor also asked some interesting questions inquiring into the federal government’s ability to hold someone indefinitely – including on the relationship of that power to the Commerce Clause authority underlying most federal exercise of power – so she could go either way.  Finally, the Chief Justice and Justice Kennedy were, uncharacteristically, not all too active – seeming to question both sides equally – so it’s hard to predict how the Court will ultimately rule.