March 27, 2010


There is an interesting NYT piece by Peter Baker handicapping the field should Justice Stevens retire. One paragraph, in particular, struck me as quite odd.
Thomas C. Goldstein, a Supreme Court litigator at Akin Gump Strauss Hauer & Feld and founder of the Scotusblog Web site, said the White House wanted to duplicate the success of the Sotomayor confirmation.
Huh? The same confirmation battle that Curt described as a "Conservative Victory?"

March 26, 2010

Two Recent Court Decisions Worthy of Celebration

Today the U.S. Court of Appeals for the D.C. Circuit unanimously struck down restrictions on contributions to independent groups that spend money on election-related speech.

And in the Second Circuit, a victory for carry permit holders in Connecticut.

Tom Goldstein Tries His hand at Rewriting History

I talked about Marc Ambinder trying to rewrite the history of judicial nominaitons. Jonathan Adler catches SCOTUSblog founder, Tom Goldstein, trying to do the same.
Goldstein’s central argument is that Republican opposition to Liu’s confirmation will set a disturbing precedent of rejecting nominees based upon their ideology. ...

What Goldstein fails to acknowledge is that this line has already been crossed. Senate Democrats have openly opposed confirmation of appellate and Supreme Court nominees well within the “mainstream” of conservative legal thought. Senate Democrats orgainzed hearings to justify the imposition of such ideological tests, and the consideraton of a judicial nominee’s ideology has been advocated by numerous Democrats, including then-Senator Obama and, interestingly enough, by Professor Liu. As I noted before, Liu called upon Senators to consider Judge Samuel Alito’s “judicial philosophy” and reject his confirmation because he was outside of the judicial “mainstream.” In short, Liu himself sought to “set the bar on whether certain substantive views on the law are just too extreme to permit confirmation” in such a way as to exclude “brilliant and conscientious lawyers” — albeit only those from the “idegological right.”

Goldstein also writes that “Liu’s formal qualifications for the post are not actually seriously disputed.” He notes that the ABA Standing Committee on the Federal Judiciary gave Professor Liu its highest rating of “well qualified.” This is all true, but high ABA ratings were hardly dispositive for Republican nominees. Liu’s rating will also revive concerns about ideological bias in the ABA’s ratings.

The ABA Committee evaluates judicial nominees based upon “their professional qualifications: integrity, professional competence and judicial temperament. According to the Committee, “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.” Yet as Ed Whelan noted, Professor Liu has not even been out of law school for twelve years, and only practiced law for two years, and has only argued one case. By comparison, when President Reagan nominated University of Chicago Professor Frank Easterbrook to the U.S. Court of Appeals eleven-plus years out of law school, the ABA rated Easterbrook “qualified/not qualified” even though he had spent four years in the Solicitor General’s office and had argued twenty cases before the Supreme Court.

March 25, 2010

Not Ambinder's Day

Commenting on the complaint filed by 13 State's Attorneys General, Marc Ambinder wrote:
Reading through the complaint filed by 13 state attorneys general, against the health reform legislation, reader @calchala was struck by something that wasn’t there: the lack of any specific case citation to buttress the underlying claim that it is unconstitutional for the federal government to impose on individuals a mandate to buy health care and to punish those who don’t by levying a fine.
Eugene Volokh does the work that Ambinder seems incapable or unwilling to do:
Case citations buttressing the underlying claims are generally not included in complaints, at least in federal court. Just as oral argument is for oral argument, citation of precedent is for briefs supporting motions for summary judgment and the like. That’s standard federal practice; see, for instance, the Complaint in MGM v. Grokster, just to give an example of a famous recent case in which the Complaint was easily available. A complaint, Rule 8 of the Federal Rules of Civil Procedure tells us, “must contain”
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
And federal practice is that the “short and plain statement of the claim showing that the pleader is entitled to relief” is a description of the facts as the plaintiff sees them, coupled with a statement of which legal rules were allegedly violated (e.g., the First Amendment, or some statute, or some common-law doctrine) — not a legal argument providing the foundation for the plaintiff’s legal theory. Occasionally you might see a case cited in a complaint, for instance if the claim for relief is brought under a common-law doctrine, and the case provides the commonly known name for that doctrine. And a few complaints do include lots of legal argument, though those tend to look unprofessional or grandstanding. But complaints without case citations are perfectly normal. Legal argument and the citations supporting it are for briefs, not complaints.

Debunking Marc Ambinder's "Washington Truism"

Marc Ambinder, blogger at The Atlantic, writes that it is a Washington truism that "to conservatives, potentially troublesome judicial appointments justify immediate action no matter how injurious to the smooth functioning of a legislative body." And that this has been true since Roe. This is outright stupidity. Has Marc ever heard of Justice Ruth Bader Ginsburg? You know, the former chief litigator of the ACLU's women's rights project and the co-founder of the Women's Rights Law Reporter. The one who was confirmed to the Supreme Court by a vote of 96-3!

Ambinder's shortsighted partisan hackery doesn't end there. In acknowledging why people wouldn't want Liu on the bench, he laments that "the prevailing theory that elections have consequences when it comes to judicial nominations is not particularly viable these days." These days? These days? Was Ambinder not around for the Bush years? He should google "Miguel Estrada" and "filibuster" and do some homework. When he is done he can move on to Clarence Thomas and Robert Bork.

This isn't even spin. It is an attempt to rewrite history. Pathetic.

March 24, 2010

Do you have a right to health care? Judicial nominee Liu thinks so

Ilya Shapiro and Evan Turgeon have an Op-Ed in the Daily Caller on Obama's nominee to the 9th Circuit, Gordon Liu.
Liu claims that judges faced with determining our society’s “obligations of mutual provision . . . should look to the democratic and cultural manifestations of those understandings, knowing that the legitimacy of judicial intervention on behalf of welfare rights ultimately depends on its coherence with the evolving norms of the public culture.”

That statement provides a perfect synopsis of Liu’s judicial philosophy: Popular opinion is paramount. As a judge, Liu would uphold any legislation that has undergone “vigorous public contestation” and comports with the public’s “considered judgment.” Citing what he calls the “socially contingent character of welfare rights” and the “limitations of the judicial role that flow from it,” Liu would uphold any legislation supported by popular opinion, foreign or international practices, or any other set of “collective values.”

Even more dangerously, Liu’s approach flouts the Constitution’s very purpose: protecting individual rights by limiting government power. As the branch responsible for interpreting the Constitution, the judiciary must defend citizens’ inalienable rights, such as the rights to life, liberty, and property, from infringement by government actors. Liu’s approach turns that role on its head. He views the judiciary not as a safeguard against state tyranny, but as a rubber stamp for any legislation that reflects popular opinion. And it’s a one-way ratchet: Liu would likely rule that the next Congress could not repeal Obamacare because it is precisely the kind of “landmark legislation”—to borrow progressive Yale law professor Bruce Ackerman’s phrase—that cannot be undone.
More on Liu here.

The Unconstitutionality of Obamacare: A Round-up

David Harsanyi - The Mugging of Personal Freedom

Jacob Sullum - The crazy constitutional logic of the individual insurance mandate

Randy Barnett - Is health-care reform constitutional?
Related: Professor Barnett's Q&A in the Post.
Related: Professor Barnett co-authored a paper for the Heritage Foundation with Nathaniel Stewart and Todd Gaziano titled "Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional"

State attorneys general sue over health bill

Jess Bravin - Health-Overhaul Foes Ready Court Challenges (accessible via GoogleNews)

David Kopel - Is the tax power infinite? I highly recommend the debate between David Rivkin and Lee Casey v. Jack Balkin that was linked in David Kopel's post.

House Judiciary Chairman Says Constitution's Non-Existent ‘Good and Welfare Clause’ Authorizes Congress to Force Americans to Buy Health Insurance

Orin Kerr on the chances the Court would actually strike it down here and here.

March 19, 2010

Public Opinion About the Supreme Court

Rasmussen has a new poll out on the public's view of the Supreme Court. Despite the way it is portrayed in the media, the public doesn't believe the Court is too conservative.
5* In political terms is the Supreme Court too liberal, too conservative, or about right?

32% Too liberal
23% Too conservative
33% About right
11% Not sure

March 18, 2010

Citizens United: A defense

Todd Henderson of the University of Chicago Law School has a defense of Citizens Untied that is well worth the read. Professor Henderson's closing thoughts:
First, I think the case is interesting in how it reveals the schism on the Court (and in all of politics) between those with faith in experts and those with faith in markets. The campaign finance laws, and the dissenters’ views of elections law, are premised on a belief that we can design rules, no matter how layered and complex, that can be implemented by well-meaning bureaucrats with the result that we can take the money/corporate influence/corruption out of politics and finally create Democracy. These people are uncomfortable with uncertainty and unknown outcomes, and believe we should plan our way to some sort of utopia. The Citizens United majority, on the other hand, seems to have a distrust in experts and regulating natural things out of existence, preferring instead to rely on markets to work toward the optimal state of affairs. Of course, there is a tradeoff between a belief in centralized versus diffuse knowledge, and the question is how much of each. In short, I think the Citizens United majority looked at the elaborate regulatory regime, the relative ineptness of the Federal Election Commission bureaucrats charged with implementing it, and decided to err on the side of the marketplace of ideas.

Second, we should not forget the history of our regulation of corporate speech, which, by the way, survives Citizens United. The first law banning corporate contributions in federal political elections was based in part about the content of corporate speech. The Tillman Act, passed in 1907 is named for Senator Benjamin Ryan "Pitchfork Ben" Tillman from South Carolina, one of the most reprehensible public servants in our history. Tillman argued that, "The negro must remain subordinated or be exterminated," and openly called for the murder of blacks in order to, "keep the white race at the top of the heap." Tillman wanted to restrict corporate speech to reduce the influence of Northern corporations, which were opposed to segregation. We should not condemn restrictions of corporate speech for this reason, but we should remember that the motives behind allegedly idealistic legislation are not always what they seem. Sometimes corporations have good things to say; sometimes they have bad things to say. Telling them they cannot speak prevents us from hearing both during a crucial period before our elections.

Finally, some critics deride the case as “activist” and inconsistent with claims about the proper judicial role made by some of the justices in the majority. Of course the claim of activism is as silly as the claim of courts as simply calling balls and strikes, as the Chief Justice has argued. Some of the Court’s job is calling balls and strikes, but most is about policy. And, some of the best court decisions are countermajoritarian. Consider Meyer v. Nebraska (1923), which dealt with a state law banning foreign language instruction for young children, passed during the anti-German hysteria of World War I. The Nebraska Supreme Court had upheld the ban, writing, “The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.” Oliver Wendell Holmes followed his views about judicial restraint and dissented. But the Court got it right. Activism was essential to preserve our liberty.

In Citizens United, the Court decided that we cannot trust the government to tell us what we should be hearing about our political system. In the view of this corporate law professor, this is a victory for our democracy.


The Supreme Court has a new website -

Health Reform Threatens Alternative Medicine

In an op-ed at, CFJ Executive Director Curt Levey teams up with Jim Turner, a progressive advocate for alternative medicine, to discuss how the impending healthcare legislation “will negatively impact holistic and natural medicine and limit the healthcare choices of the people who consume it.” They explain that
“Consumers of alternative medicine are used to health insurance plans that offer little or no coverage for holistic treatments and thus don’t meet their needs. That’s why many of them choose not to purchase health insurance. … [But under ObamaCare] the money [they] will be forced to spend subsidizing other people’s establishment healthcare, through premiums and higher taxes, is money [they] can no longer spend on holistic and natural medicine.”
To understand the breadth of the problem, consider that “visits to alternative practitioners, for treatments ranging from acupuncture and chiropractic to herbal remedies, outnumber all visits to primary care physicians by almost two to one,” according to a Journal of the AMA study. Turner and Levey note that although consumers of “indigenous healing traditions” such as Chinese medicine are particularly vulnerable to the negative impact of the legislation, “many of the American politicians who pay lip service to respect for racial and cultural differences appear ready to hand the feds the power to impose a one-size-fits-all healthcare solution.”

The authors conclude with this larger point:
“[E]very American deserves the right to make their own healthcare choices with their own healthcare dollars. No healthcare system will guarantee you access to every treatment you ever want – not an unregulated free market, not Medicare, not Medicaid, and certainly not ‘ObamaCare.’ But when you’re allowed the freedom to make your own choices about treatments and insurance plans, you can prioritize what access is most important to you.”


March 17, 2010

ObamaCare Court Fight Impacts Election & SCOTUS Vacancy

CFJ Executive Director Curt Levey on the Slaughter Solution:

Democrats can’t be happy that Politico’s survey of experts found that the “‘Slaughter solution’ for enacting health care reform without a conventional House vote … would be vulnerable to credible constitutional challenge.” But perhaps worse news for Democrats is that “[n]o lawyer interviewed by Politico thought the constitutionality of the [solution] was an open-and-shut case either way.”

The lack of an open-and-shut case virtually guarantees that the court fight challenging the constitutionality of the Slaughter solution would be protracted, regardless of the ultimate result. The lawsuit will certainly be high-profile, likely garnering nearly as much public attention as the Bush v. Gore court battle. As a result, Democrats’ repeated prediction that the American people will forget the process by which ObamaCare is enacted, no matter how ugly, will become a pipe dream as a high-profile court challenge to that very process drags into and beyond November. In sum, the Slaughter solution destroys Democrats’ hopes of avoiding slaughter at the polls this November.

Supporters of the Slaughter solution correctly point out that its “deem and pass” procedure has been used before. However, because the procedure has never been used before to pass legislation that would otherwise fail, it has never been challenged in court. The resulting lack of binding legal precedent is what makes a battle all the way to the Supreme Court so likely.

Instead of binding precedent, there are only two indirect Supreme Court precedents, both of which weigh against the constitutionality of the Slaughter solution but don’t decisively decide the question. As Politico explains,
“Any challenge likely would be based on two Supreme Court rulings, one in 1983 and the other in 1998, in which the court held that there is only one way to enact a law under the Constitution: it must be passed by both houses of Congress and signed by the president.”
Ironically, “Rep. Louise Slaughter (D-N.Y.), for whom the procedure under consideration by House Democrats is now named, and Speaker Nancy Pelosi (D-Calif.) filed amicus briefs arguing for the result the court reached in the [1998] case,” according to Politico.

The challenge to the constitutionality of the “deem and pass” procedure should not be confused with the inevitable and parallel challenge to the substance of ObamaCare – specifically to the constitutionality of the individual insurance mandate. The latter court fight will only heighten the legal drama that follows enactment of ObamaCare, further crowding out any post-enactment public relations campaign Democrats have planned.

The twin constitutional challenges to the legislation will also complicate the confirmation process for the President’s choice to replace Supreme Court Justice John Paul Stevens, who is very likely to retire this spring. The focus of the media and public will be on how the nominee, if confirmed, would rule on the twin lawsuits. The nominee will likely decline to answer repeated questions about the constitutionality of ObamaCare during the confirmation hearing, but that will only heighten the speculation.

Finally, having lived through Senate Democrats’ attempts to block Bush judicial nominees they opposed, I can’t help but wonder what their reaction would have been if the GOP-controlled Senate had tried to “deem” a controversial nominee confirmed by a vote on a second, less controversial nominee.


March 16, 2010

Could Gun Control Advocates Newest Weapon be Pre-Crime Policing?

Radley Balko details a story that comes straight out of the science fiction movie Minority Report.
To hear them tell it, the five police agencies who apprehended 39-year-old Oregonian David Pyles early on the morning of March 8 thwarted another lone wolf mass murderer. The police "were able to successfully take a potentially volatile male subject into protective custody for a mental evaluation," announced a press release put out by the Medford, Oregon, police department. The subject had recently been placed on administrative leave from his job, was "very disgruntled," and had recently purchased several firearms. "Local Law Enforcement agencies were extremely concerned that the subject was planning retaliation against his employers," the release said. Fortunately, Pyles "voluntarily" turned himself over to police custody, and the legally purchased firearms "were seized for safekeeping."

This voluntary exchange involved two SWAT teams, police officers from Medford and nearby Rosewood, sheriff's deputies from Jackson and Douglas counties, and the Oregon State Police. Oregon State Police Sgt. Jeff Proulx explained to South Oregon's Mail Tribune why the operation was such a success: "Instead of being reactive, we took a proactive approach."

There's just one problem: David Pyles hadn't committed any crime, nor was he suspected of having committed one. The police never obtained a warrant for either search or arrest. They never consulted with a judge or mental health professional before sending out the military-style tactical teams to take Pyle in.
This loss of civil liberties jives pretty well with Obama's recent embrace of mandatory DNA testing of Americans upon arrest.

March 13, 2010

Profiling Originalism

Nathaniel Persily, Jamal Greene, and Stephen Ansolabehere have a draft of a paper titled "Profiling Orginalism" up at SSRN. The abstract:
Originalism is a common subject of both legal and political discourse. It is frequently invoked not just in law reviews but during election campaigns, at confirmation hearings, and interstitially on cable news, in print media, and on talk radio. This Article presents the first empirical study of public attitudes towards originalism. Our study uses original survey data and multiple regression analysis to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identify as originalist. We conclude that the most significant predictors of an individual preference for originalism are the respondent’s view on the Supreme Court’s decision in Roe v. Wade, her level of formal education, and her relative level of moral traditionalism. Our analysis suggests that originalism has currency not only as a legal proposition about constitutional interpretation but also, and no less significantly, as a political commodity and as a culturally expressive idiom. This conclusion carries consequences for debates about the role of the public in shaping constitutional meaning and in influencing judicial decisionmaking.
Blogging at Balkinization, Nate Persily describes it as "the first paper to come from the national public opinion survey of attitudes toward constitutional issues that we conducted last summer." I just wanted to flag it for those who may be interested. I am hoping to read it in the next week and when I do I will post some thoughts.

Is Health Care a Right?

Walter Williams, professor of economics at George Mason, has an excellent column differentiating rights from wishes. An excerpt:
True rights, such as those in our Constitution, or those considered to be natural or human rights, exist simultaneously among people. That means exercise of a right by one person does not diminish those held by another. In other words, my rights to speech or travel impose no obligations on another except those of non-interference. If we apply ideas behind rights to health care to my rights to speech or travel, my free speech rights would require government-imposed obligations on others to provide me with an auditorium, television studio or radio station. My right to travel freely would require government-imposed obligations on others to provide me with airfare and hotel accommodations.

For Congress to guarantee a right to health care, or any other good or service, whether a person can afford it or not, it must diminish someone else's rights, namely their rights to their earnings. The reason is that Congress has no resources of its very own. Moreover, there is no Santa Claus, Easter Bunny or Tooth Fairy giving them those resources. The fact that government has no resources of its very own forces one to recognize that in order for government to give one American citizen a dollar, it must first, through intimidation, threats and coercion, confiscate that dollar from some other American. If one person has a right to something he did not earn, of necessity it requires that another person not have a right to something that he did earn.

To argue that people have a right that imposes obligations on another is an absurd concept. A better term for new-fangled rights to health care, decent housing and food is wishes. If we called them wishes, I would be in agreement with most other Americans for I, too, wish that everyone had adequate health care, decent housing and nutritious meals. However, if we called them human wishes, instead of human rights, there would be confusion and cognitive dissonance. The average American would cringe at the thought of government punishing one person because he refused to be pressed into making someone else's wish come true.

None of my argument is to argue against charity. Reaching into one's own pockets to assist his fellow man in need is praiseworthy and laudable. Reaching into someone else's pockets to do so is despicable and deserves condemnation.


A Maryland corporation, Murray Hill, Inc., is running for office.
Murray Hill might be the perfect candidate for this political moment: young, bold, media-savvy, a Washington outsider eager to reshape the way things are done in the nation's capital. And if these are cynical times, well, then, it's safe to say Murray Hill is by far the most cynical.

That's because this little upstart is, in fact, a start-up. Murray Hill is actually Murray Hill Inc., a small, five-year-old Silver Spring public relations company that is seeking office to prove a point (and perhaps get a little attention).

After the Supreme Court declared that corporations have the same rights as individuals when it comes to funding political campaigns, the self-described progressive firm took what it considers the next logical step: declaring for office.
If I didn't think Congress was going to do something stupid as a response to Citizens United all this hyperventilating would be hilarious. I await the same hyperventilation the next time the Court says corporations have Fourth Amendment rights but I doubt it will happen.

March 11, 2010


March 10, 2010

From the "I told you this would happen" file

March 09, 2010

Can States Say "No Thanks" to ObamaCare's Health Insurance Mandate?

Peter Suderman looks at the legality of state laws that would ban mandatory insurance. Virginia has already passed such a law and more than 30 other states are considering doing the same.
I asked a couple of legal and constitutional scholars what they thought, and the consensus seems to be that though state laws barring mandatory insurance shouldn't be unconstitutional, it's likely that if health reform were passed and they were challenged, the Supreme Court would rule that they are. However, we don't actually know for sure, and there is legal precedent for the Supreme Court to side with a state in a federal/state dispute.

All of them also noted that, regardless of whether or not these laws and amendments eventually stand up to challenge, they're strong political signals of opposition against the insurance mandate—which is arguably the centerpiece of the Democrats' federal health care overhaul (the other key regulations don't work without a mandate).

On the constitutional question, Roger Pilon of the Cato Institute says, "It isn't simply the Supremacy Clause that would make the state law unconstitutional, but rather the constitutionality of the federal statute together with the Supremacy Clause and the inconsistent state law." In other words, the Supremacy Clause alone wouldn't render Virginia's law unconstitutional. Instead, it would be struck down only if and when a federal individual mandate was passed and ruled constitutional.

Is Justice Scalia abandoning originalism?

I wrote, after oral argument in McDonald, that faint-hearted originalist Scalia had reared his head. Ilya Shapiro and Josh Blackmun pick up the issue in the Washington Examiner and argue that if Scalia incorporates under Due Process he might as well hand in his O-card.
Without the Privileges or Immunities Clause, however, the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment! ...

Granted, Scalia has been far from a down-the-line originalist. On more than one occasion, where originalism does not achieve the result he wants, he ignores the history and stands by precedent. (Most recently, Scalia voted to uphold the federal power to trump state regulation of medicinal marijuana, even if the drug never crosses state lines.) To explain these variances, Scalia has called himself a “faint-hearted originalist” or an “originalist, but not a nut.”

But if the opinion Scalia joins in McDonald matches his signals at argument, the justice will no longer be able to call himself an originalist of any kind. He will have to turn in his O-card and leave Clarence Thomas as the only originalist on the Court. (Not coincidentally, Thomas is the only justice on record as favoring a revival of the Privileges or Immunities Clause.)

March 07, 2010

Polls and Citizens United

Ann Althouse takes a look at the way the ABC/Washington Post poll asked about the case and comes to the conclusion that we shouldn't believe the poll results. I agree.
[T]he people surveyed mostly only knew about the case from the description given by the pollster. Here's the way ABC/Washington Post tried to get its unprepared respondents up to speed:
Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?
What percentage of those surveyed do you think understood "spend" to exclude contributing money to the candidate? 20%? I'm saying 20% to be snarky, because that's the proportion of respondents who approved of the decision. My real point is, the survey is utter trash. Worse than utter trash, because it propagated misinformation.
The hyperbole surrounding this case has been astounding. For example, Kieth Olbermann said that Citizens United “might actually have more dire implications than Dred Scott v Sandford.” The coverage in the MSM hasn't been much more nuanced or accurate so it is no wonder the question was posed as it was.

March 05, 2010

Taking Goodwin Liu at His Word

Writing in Bloomberg shortly after George Bush announced the nomination of John Roberts to the Supreme Court Goodwin Liu, recent Obama nominee to the Ninth Circuit, wrote
There's no doubt Roberts has a brilliant legal mind. Twice Harvard-educated, he has argued 39 cases before the Supreme Court and since 2003 has served on the powerful federal appeals court in Washington, D.C. But a Supreme Court nominee must be evaluated on more than legal intellect.

Because he would sit with life tenure on the nation's highest court, it's fair and essential to ask how he would interpret the Constitution and its basic values. Americans deserve real answers to this question, and it should be the central focus of the Senate confirmation process. ...

His record suggests that he has a vision for American law -- a right-wing vision antagonistic to important rights and protections we currently enjoy -- and that he is not afraid to flex judicial muscles to achieve it.

I may be wrong, and I hope I am. But we won't know unless Roberts tells the Senate and the American people in the weeks ahead his honest and considered beliefs about the Constitution he is sworn to uphold.(emphasis added)
If Justice Sotomayor's confirmation process is any indication, Americans will get a healthy dose of conservative judicial philosophy from Mr. Liu. But I welcome Liu proving me wrong and seeing how Americans respond to the liberal view of justice. My guess is there was a reason that Sotomayor declined her opportunity to make that case to the American people.

Liu also gets out his conservative decoder ring to determine that "`free enterprise,''private ownership of property,' and `limited government.' ... are code words for an ideological agenda hostile to environmental, workplace, and consumer protections." I will be sure to fine tune my liberal decoder ring for Mr. Liu's testimony in front of the Judiciary Committee.

h/t to Ed Whelan who has more on Liu at Bench Memos.

March 03, 2010

Obama Now Selling Judgeships for Health Care Votes?

Via the Weekly Standard:
Tonight, Barack Obama will host ten House Democrats who voted against the health care bill in November at the White House; he's obviously trying to persuade them to switch their votes to yes. One of the ten is Jim Matheson of Utah. The White House just sent out a press release announcing that today President Obama nominated Matheson's brother Scott M. Matheson, Jr. to the United States Court of Appeals for the Tenth Circuit.

Gregory Craig on NRA's Involvement in Sotomayor Nomination: It Hurt

David Ingram has a post at the Blog of Legal Times on former White House Counsel to Barack Obama Gregory Craig's debriefing on the Sotomayor nomination.
After the U.S. Senate confirmed Justice Sonia Sotomayor in August, a debate began over how much influence the National Rifle Association had over the final tally of 68-31. Liberals said the NRA, which opposed Sotomayor, had failed, while conservatives said they were encouraged the gun-rights group even got involved.

Gregory Craig, who helped direct the confirmation as White House counsel, said Tuesday that the NRA opposition certainly hurt.

“I believe that Justice Sotomayor would have received many, many more votes from Republicans in the Senate if the NRA had not, out of the blue, without any warning, opposed her nomination and, with very little justification whatsoever, made the Senate vote on Sotomayor a pro-gun versus an anti-gun vote,” Craig said in a speech at Georgetown University.
As the contours of the right to bear arms continue to be established in the courts, expect the NRA to remain involved.

March 02, 2010

My Thoughts on McDonald

Here is the transcript of today's oral argument in McDonald v. Chicago. A couple thoughts:

1. The PorI clause is probably not being revived. Which seems crazy given that, as liberal Yale law professor, Akhil Amar, has said “Virtually no serious modern scholar -- left, right, and center -- thinks that [Slaughterhouse] is a plausible reading of the Amendment.”

2. From a public meaning originalist perspective the oral argument was extremely frustrating. The bulk of the time was spent discussing the Second Amendment and the other amendments in the Bill of Rights. But this is the wrong time period to be looking to in order to determine the original meaning of the Fourteenth Amendment, which was adopted on July 9, 1868. Gura repeatedly tried to direct the Court to contemporaneous legislation such as the Civil Rights Act of 1866 with little to no avail.

3. Fainthearted Originalist Scalia showed up at oral argument. I agree with Doug Kendall when he rights:
This front-page story in yesterday’s Washington Post featured a quotation from Justice Antonin Scalia, taken from a 2006 Yale Law School presentation, in which the Justice calls the 14th Amendment's Privileges or Immunities Clause "flotsam." Flotsam is defined by Webster's Dictionary as "floating debris": trash, in other words. Talk about trashing the Constitution.

Justice Scalia continued along these lines at oral argument today in McDonald v. City of Chicago, a case about whether the Second Amendment limits the gun control laws passed by states. Scalia jumped all over McDonald’s attorney, Alan Gura, who had the temerity to argue that the text and history of the Privileges or Immunities Clause was relevant to the outcome of the case. Scalia accused Gura of “bucking for some place on a law school faculty” by advancing an argument in text and history that was “the darling of the professoriate.”

Why would a Supreme Court Justice who professes to care deeply about the text and history of the Constitution disparage part of that text and refuse even to hear an argument about the history of the Privileges or Immunities Clause? Simple: this text and history doesn’t fit with his longstanding argument against judicial protection of substantive fundamental rights.

4. MAN I WISH THOMAS WOULD ASK QUESTIONS. As the sole Justice to express a prior interest in re-addressing PorI I wish Thomas had spoken up today and tried to steer oral argument a bit. He could have kept Gura's arguments from either getting derailed or ignored all together. Because he didn't PorI wasn't taken seriously.

5. The Court will likely incorporate via due process. I agree with Orin Kerr's assessment of the liberal Justices:
Justice Stevens, often the liberal Justices’ primary strategist, seemed to have a plan to join on the theory of incorporation by Due Process but then to water it down as applied to the states. This revisits an old debate on the incorporation doctrine about whether incorporation applies the Bill of Rights to the states “jot for jot” or only applies the core protections of the right to the states. Given Stevens’ questioning, my guess is that the liberal Justices may try to band together and offer Kennedy a less protective version to apply to the states. I read Justice Kennedy’s questions at the bottom of page 13 and on pages 53–54 to suggest he is pretty skeptical of that approach.
I just don't think the liberal justices will fail to incorporate.

That is all for now.

UPDATE: This post from Clark Neily, writing at Bench Memos, pretty well sums up my frustration with yesterday's oral argument.
In 1861, America began a war to end slavery. Shortly thereafter, we began another battle — Reconstruction — to end the incidents of slavery, culminating in the ratification of the Thirteen, Fourteenth, and Fifteenth Amendments. But from today’s arguments in McDonald v. City of Chicago, you would never know any of that had ever occurred, let alone that the Fourteenth Amendment — including specifically its Privileges or Immunities Clause — was enacted for the specific purpose of putting an end to a Southern tyranny that included the systematic disarmament of newly free blacks and their white supporters in order to keep them in a state of servile terror. ...

Powerful support for that approach comes not just from the congressional debates over the adoption of the Fourteenth Amendment and the extensive coverage those debates received in leading periodicals, but also from the abundant historical evidence about what prompted Congress to propose the Fourteenth Amendment in the first place. Simply put, it was the tyranny of Southern states and their brazen attempt to keep blacks in a state of constructive servitude while terrorizing anyone who presumed to stand in the way. The legislative record contains extensive reports of forced disarmaments and lynchings, often at the hands of militias and other officials acting under color of state law. Reconstruction Republicans were outraged by that conduct, as was the public. As a result, few (if any) rights were mentioned as regularly in connection with the Fourteenth Amendment as the right to keep and bear arms.

That history is stark, undisputed, and, if today’s arguments are any indication, seemingly irrelevant to the Court’s decision whether the Fourteenth Amendment protects the right to keep and bear arms. If so, that’s a tragedy. Correction: the continuation of a tragedy.

Gun Case Tied to Looming High Court Vacancy

By the end of June, the Supreme Court will make headlines at least twice. Once when Justice John Paul Stevens announces his retirement, setting off a frenzy of speculation about possible replacements followed by a hard-fought confirmation battle. And once when the Court decides whether gun rights are protected at the state and local level in McDonald v. Chicago, the landmark Second Amendment case being argued today (CFJ submitted an amicus brief in the case). Perhaps the most interesting story is the important connection between the two events.

As CFJ Executive Director Curt Levey pointed out in an op-ed earlier this term,
“[The gun rights issue] stands out, not only for its legal significance, but also for the role it will play in future High Court confirmation fights. … [I]n several ways, it’s the new abortion. … [T]he Chicago case reminds gun owners that their battlefield has shifted to the courts and hastens the profound change in the politics of judicial confirmations that began this summer … [when] gun owners – from the grassroots to the National Rifle Association – jumped into a Supreme Court confirmation contest for the first time in history.”
Levey elaborates on the abortion analogy:
“Abortion rears its head in virtually every Supreme Court or hotly contested lower court confirmation contest. Gun rights will now do the same, especially as the explosion of Second Amendment litigation guarantees that more and more judicial nominees will have relevant rulings, briefs, articles, and speeches to scrutinize and debate. … [T]he new, gun-owning gorilla in the [hearing] room matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators. And there’s no comparable countervailing force on the other side.”
Having gotten its feet wet last summer, the Second Amendment community will be ready should there be any hint of hostility to gun rights in the record of Obama’s next Supreme Court nominee:
“Next time around, gun owners – from the NRA down to the grassroots – will be more focused on the importance of judicial nominations, more educated about the politics of the confirmation process, more sophisticated about influencing the outcome, quicker to the draw, and more aggressive. Even red and purple state Democratic senators will have to seriously consider voting against judicial nominees who appear less than sympathetic to the Second Amendment.”
Red and purple state Democrats who voted to confirm Sonia Sotomayor are likely hoping that she votes in favor of gun rights in McDonald. Otherwise, they’ll have to explain to the folks back home why they supported a Justice bent on denying those folks’ Second Amendment rights.

In its amicus (friend of the court) brief in McDonald, CFJ and its co-amici urge the Court to apply the Second Amendment to the states via the Fourteenth Amendment’s Privileges or Immunities Clause. While arguing that Privileges or Immunities is the most principled approach in light of the original meaning and text of the Second and Fourteenth Amendments, CFJ’s brief notes that there is abundant Supreme Court precedent supporting incorporation through the Due Process Clause.

Unlike appellant Otis McDonald, CFJ advises against overruling the Supreme Court’s landmark 1873 decision in the Slaughter-House Cases, which restricted the scope of the Privileges or Immunities Clause. Our brief argues that overturning the Slaughter-House precedent is not only unnecessary but also unwise, because
“Privileges or Immunities could become a cornucopia of myriad entitlements, such as a constitutional right to healthcare, higher education, a ‘living wage,’ ‘decent’ housing, and a clean environment. … By limiting the Privileges or Immunities Clause to rights that have a textual basis in the Constitution, … Slaughter-House constrains this scenario of judicial activism run amok.”


March 01, 2010

Court-Packing 3.0

As a follow-up to Jeffrey Rosen's suggestion that Obama appoint himself to the Supreme Court comes another call for a court-packing scheme. This one courtesy of Stan Isaacs:
So if nine justices is not writ in stone, the embattled President Obama should deal with this hostile conservative/reactionary court by adding three members. ...

That's an easy enough mistake for Obama to avoid. He can easily be a quarterback for change on a court that will give the president continued grief as he tries to implement his agenda.

Obama can give himself a fighting chance by changing the rules of the game, just as they were changed for other presidents in the 1800s. He should forget bipartisanship and work with congressional Democrats to name three new justices to the court to meet the challenges he faces.

The lesson: if you can't win, change the rules of the game, replacing "a government of laws and not of men" with a government of men and not of laws. It is odd that these proposals only come up in Democratic administrations.

McDonald Related Stuff

On the eve of McDonald v. Chicago I thought I would start a running post of the interesting stuff I run across today and tomorrow.

1. There is an interesting discussion at Volokh about Priviliges or Immunities and an upcoming paper by historian Philip Hamburger. Here is the abstract.
What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.
Jim Lindgren introduced the paper. Orin Kerr asked for thoughts from readers. Randy Barnett had an initial comment. Hamburger responed. Barnett added a partial response to Hamburger's response.

Update: Barnett on Chief Justice Taney on the Privileges or Immunities of Citizens of the United States.

2. The Cato Institute is hosting a plicy forum today at 4:00 on McDonald v. Chicago. Event information and link to watch event live here. A description of the event:
In 2008, the Supreme Court decided the landmark case of District of Columbia v. Heller, striking down D.C.'s draconian ban on handguns and finding, at last, that the Second Amendment protects an individual right to keep and bear arms. On March 2, in McDonald v. City of Chicago, the Court will hear oral arguments on whether that right applies to states and localities. The Court is expected to hold that it does: a key purpose of the Fourteenth Amendment, ratified at the height of Reconstruction in 1868, was to allow newly freed slaves and white Unionists to defend themselves against Southern reprisals by protecting their right to keep and bear arms. But will the Court reach that result via the Due Process Clause or the Privileges or Immunities Clause, which was specifically enacted to protect various individual rights, including particularly the right to armed self-defense? The answer is important as a practical matter—because it will help determine the future of gun rights in America—and also as a matter of constitutional law generally, because it could lead to the reinvigoration of a variety of important liberties that courts have long neglected. Please join legal scholars Ilya Shapiro, Timothy Sandefur, and Doug Kendall—each of whom recently published articles on the Privileges or Immunities Clause—for a preview of the arguments before the Court, a discussion of the Fourteenth Amendment's protection of the right to keep and bear arms, and reflections on other important developments that may flow from McDonald.

3. For those looking to catch up before tomorrow's oral argument here is the link to the SCOTUSwiki entry for the case.

4. Reason Supreme Court Preview: Does the Second Amendment Apply to the States? A look back at Reason’s coverage of both the Chicago gun case and its wider implications for the future of constitutional law.

5. Timothy Sandefur writing in the National Law Journal on McDonald, Privileges or Immunities, and economic liberty.
One of the biggest cases the U.S. Supreme Court will decide this year involves the right to bear arms. But in the long run, its decision in McDonald v. Chicago may be far more important to America's entrepreneurs. It all depends on whether the justices decide to revive a constitutional provision it has neglected for more than a century.

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the "privileges or immunities" of citizens, or taking anyone's life, liberty or property without "due process of law," or depriving people of the "equal protection of the laws." But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials. ...

In his dissenting opinion in Slaughter house, Justice Stephen Field wrote that economic freedom "is the fundamental idea upon which our institutions rest." But thanks to the elimination of the privileges or immunities clause, hardworking entrepreneurs like Sweet have almost no constitutional protection against state and local bureaucrats. At a time when America needs a resurgence of its entrepreneurial spirit, a decision to restore the 14th Amendment's protections for economic liberty would be a welcome change.

6. Via SCOTUSblog - No audio release on McDonald
The Supreme Court has refused a request by cable and other broadcast networks to release on Tuesday the audiotape of the Court’s hearing in the Second Amendment case, McDonald, et al., v. Chicago, et al. (08-1521). The refusal was conveyed to the networks by the Court, but no document was released on it. The Court has released promptly the audiotape on only one case during recent months — the Citizens United v. FEC case, heard in September before the current Term opened. Under current policy, the written transcript of Tuesday’s argument will be released later in the day. The argument is scheduled for one hour, starting at 10 a.m.

7. WaPo on McDonald:
The most likely path to recognizing gun ownership as a fundamental right is one that has been heavily criticized by Scalia and other conservative scholars, and it seems inconsistent with his belief that the Constitution should be interpreted in terms of its framers' "original meaning."

The alternative, one embraced by an unlikely coalition of libertarian, liberal and some conservative scholars and activists, would apply the Bill of Rights to the states in a way they say is more grounded in the Constitution. But it is also a route that could open what is invariably described as a Pandora's box of additional rights of citizenship -- health care, for instance, or housing.
Related: Last week WaPo had a profile of Tom Palmer and a look at Alan Gura's upcoming challenge to D.C.'s ban on carrying guns in public.
It was 1982, dusk on a summer night near San Jose, when a band of thugs yelled homophobic slurs at Palmer and a colleague.

"We were what they perceived as a couple of faggots, which was the term they used, walking through their neighborhood," he said. "And it would have been one of those modestly ironic moments if my colleague might have been murdered in a gay bashing, when he was straight."

The threats were vivid and believable: "We're going to kill you. They'll never find your body."

Palmer told his colleague to run. The thugs chased Palmer, who stopped under a streetlight and pulled out his gun.

"I did not say anything witty or clever," he recalls. "In the movies, they say something very clever. I just said, 'If you come closer, I will kill you.' Very blunt. And they stopped."

He is convinced that if he hadn't had a gun he would be dead.
8. Howard Bashman has a mini-roundup at How Appealing.