Dear Newt Gingrich: Judicial Supremacy Does Not Exist

Adam Liptak of the New York Times has written an article on Newt Gingrich's views of the federal courts. The article basically contains the same information as an earlier report by the Washington Post (see analysis on Dissenting Justice). There is, however, an additional point.

Gingrich condemns what he calls "judicial supremacy." By that, I suspect that he means (the article does not explain, but this is a well known debate among legal scholars) the notion that the Supreme Court has the last word on questions of constitutional law. Gingrich cites to Cooper v. Aaron for that proposition. Decided in 1958, Cooper arose out of the standoff over desegregation in Little Rock, Arkansas. State officials argued that they did not believe segregation was unconstitutional, and they claimed that states could nullify rulings of the Court. The Supreme Court, however, said that its ruling in Brown v. Board of Education of Topeka, Kansas stated a constitutional principle, and that the Supreme Court's doctrine on the constitution is binding and controlling as constitutional law.

Many commentators argue that Cooper went beyond Marbury v. Madison (which established judicial review), and in many ways, this is a reasonable observation. But if Gingrich is really concerned about activist and imperialist judges, he could have pointed to much earlier precedent. In the early 1900s, the Court began to apply a very rigorous standard of review in cases challenging various economic and labor regulations. This infamous period is known as the Lochner era (named for Lochner v New York, a 1905 case that struck down a New York labor law in the baking industry). During the Lochner era, the Court invalidated over 200 laws - much more than during any other 3-decade period.

The Court would continue its conservative approach until the New Deal era, when it struck down several pieces of popular legislation that FDR promoted to deal with the impact of the Great Depression. Roosevelt's critiques of the Court, the terrible state of the economy, the popularity of economic legislation, and personnel changes on the Court led to a major shift in direction. The Court suddenly began applying a more relaxed standard and overruled the restrictive case law from the Lochner era.

The overruling of Lochner disproves the entire idea of judicial supremacy. While Supreme Court interpretation of the Constitution binds state and federal governments, its rulings do not end the debate over the meaning of the Constitution. Instead, the Court responds to politics, public opinion, social conditions, social movement activity, and other factors outside of mere judgment. Indeed, the involvement of the president and the senate in the appointments process ensures that the Court will reflect majoritarian or at least mainstream values.

Gingrich's rant on judicial supremacy is uninformed. It is also simply a reflection of his own ideological commitments. He limits his criticism to liberal opinions -- not conservative rulings that coincide with his own ideology.

Courting Kennedy

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy -- the Supreme Court's lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy's opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O'Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade -- even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O'Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy's vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against "partial-birth" abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy's own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy's opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can "flip" Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the "best argument" combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that "conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room." Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking "Who can sway Kennedy?" is no way to pick Justice Stevens' replacement.

Elena Kagan?

Politico reports that President Obama will soon nominate Elena Kagan to the Supreme Court. If this story is true, this would confirm earlier reports which suggested that Obama wanted to avoid a fight with his next Court nominee.

As an academic who received tenure at the University of Chicago and Harvard Law School, Kagan has a surprisingly sparse paper trail. She was not very prolific as a scholar, which means that her record leaves very little room for controversy.

 Professor Paul Campos, however, believes that Kagan's thin record should go against her appointment:

Yesterday, I read everything Elena Kagan has ever published. It didn't take long: in the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago's own faculty—and a short essay in the school's law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it's true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard's dean, and for never having written anything intended for a more general audience, either before or after taking that position.).

That Kagan has not written much legal scholarship does not mean she is not bright or qualified for the bench.  But it is worthy information to consider in an appointee. For Obama, it probably weighs in favor of Kagan.

Glenn Greenwald of Salon.com has written extensively on some of Kagan's more conservative views, especially concerning presidential power during war. During her confirmation hearings for the Solicitor General post, Kagan took a broad view of presidential power and indicated that the president could indefinitely detain suspected terrorism suspects -- an issue against which Obama campaigned. 

The Court nomination process is often so demoralizing, and I refuse to  add to the thicket by demonizing a candidate. I am, however, concerned that in the interest of avoiding a fight or avoiding doing something "liberal," President Obama is caving when he should do the exact opposite.

President Obama and Judicial Activism

During a recent interview, President Obama discussed the Supreme Court appointments process, and he offered a critique of conservative judicial activism. Specifically, President Obama argued that:

It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.

What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.

And so I’m not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that judicial — the concept of judicial restraint cuts both ways. And the core understanding of judicial restraint is, is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it is afforded some deference as long as core constitutional values are observed.

President Obama correctly states that judicial activism is typically associated with liberal judges. Many liberal constitutional law scholars, however, have accused conservative judges of being too invasive. Indeed, both liberal and conservative judges have ignored public opinion and the desires of the political branches – starting with the anti-regulatory rulings of the Lochner and New Deal era, the criminal procedure rulings of the Warren Court, and the assault on civil rights during the Rehnquist Court. Commentators across the political spectrum, however, most often use the term “judicial activism” simply to condemn opinions that they find disagreeable.

Obama’s analysis raises two interesting issues. First, it is unclear what rulings he believes were excessive or “activist” during the “’60s and ‘70s.” Conservatives have tossed the activism charge around loosely in order to disparage the Warren Court’s protection of individual liberty and equality. Many of these arguments, however, are inaccurate because from the perspective of national public opinion, the Court’s civil rights rulings enjoyed majoritarian support. Also, the Court did not act vigorously on matters like school desegregation or voting rights until Congress passed comprehensive legislation addressing these concerns.

On other issues, like criminal procedure, that lacked public support, one could make a sound argument that the political process should not enjoy deferential judicial review. Although conservatives and liberals may debate the meaning of the procedural rights protected by the Bill of Rights and the Due Process Clause, these are certainly “core constitutional values.”

Obama’s comments also raise the issue of how the Court should interpret the Constitution. He argues that the Court should extend deference to the political branches so long as they respect constitutional limits. But reasonable jurists can (and often) disagree on the meaning of the Constitution. In fact, the judicial activism rhetoric often masks underlying disagreement over judicial elaboration of constitutional values.

I suspect that Obama offered these comments in order to shape the terms of the debate of his next Supreme Court nomination. If so, the confirmation hearings could cover far more interesting terrain than the last round.

Note: This essay originally appeared on Concurring Opinions, where I am guest-blogging for May 2010.

What Will Obama Do To Avoid A Supreme Court Fight?

Justice Stevens has now announced his upcoming retirement from the Supreme Court, and commentators are speculating about whom President Obama will choose to replace him. Politico writer Glenn Thrush reports that Obama wants to avoid a "fight" with the Senate regarding Stevens' replacement.

According to Thrush, avoiding a fight means picking a "bipartisan" nominee. He lists three "top-tier" prospects: Elena Kagan, Diane Wood and Merrick Garland.  Thrush says that selecting Wood would "likely spark a serious battle" because she has liberal views regarding abortion. He describes Kagan and Garland, however, as noncontroversial choices.

Thrush also quotes Senator Diane Feinstein to support his conclusion that the Obama administration wants a bipartisan candidate.  Fenstein says that:

The Senate is exhausted. . . .We need 60 votes. I think we need a candidate who is bipartisan, who has the credentials who is respected on both sides of the aisle is what we need to have a quick confirmation. . .I don’t think we need a fight that drags through the summer.

Thrush reports that Rahm Emanuel will have a big role in the selection process.  According to Thrush, Emanuel will take the pulse of the Senate and make sure that Obama chooses a candidate who does not provoke a serious fight.

My Take
It is difficult to imagine how a bipartisan candidate to the Supreme Court would look. Because Republicans have decided to oppose virtually everything that comes from the White House, I suspect that even moderate to conservative candidates like Kagan could generate passionate opposition.

Furthermore, picking candidates favored by Republicans would probably require Obama to compromise the values of his electoral base. Conservatives did not elect Obama; liberals did. Kagan appeals to Republicans because she shares some of their expansive views regarding the power of the Executive during war -- some of the very practices that civil libertarians and Obama himself criticized during the Bush administration.

Additionally, if bipartisanship means a moderate or conservative nominee, this would shift the ideological makeup of the court farther to the right, which Obama was not elected to do. Stevens is solidly a part of the liberal bloc on the Court. Picking someone to the right of him would represent a victory for Republicans.  That Wood's views on abortion frightens conservatives who openly want to the Court to overturn Roe v. Wade should not dictate whether Obama picks her to replace Stevens.

Finally, I find it very odd to argue against fighting for a Supreme Court pick. Since 1967, Democrats have only appointed 3 justices to the Supreme Court, including Sonia Sotomayor. Supreme Court justices have lifetime tenure. They interpret the meaning of the Constitution.  Their views influence the practice of law and the operation of government. Obama promised change. To accomplish change in an area this important requires -- and indeed, should inspire -- a fight. 

Thrush reports that by avoiding a fight, Obama can focus on his domestic agenda. The Supreme Court, however, should constitute a central part of his domestic agenda.

Chief Justice Roberts Is Troubled -- But Should He Be?

Chief Justice Roberts says that the venue President Obama chose to criticize the Supreme Court (during the State of the Union Address) was troubling. Roberts expressed his views during a forum at the University of Alabama Law School. A student asked Roberts to address Obama's criticism of the Court during the SOTUA. Roberts said that President Obama had the right to criticize the Court. Roberts, however, objected to criticism within the particular forum:

The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.

Although I understand that an individual member of the Court could feel some discomfort facing criticism within that setting, Roberts' statement is misplaced for a few reasons.

FIRST, President Obama criticized the Supreme Court -- not Chief Justice Roberts (or any other justice) in his or her individual or personal capacity. Similarly, President Obama, speaking directly to Congress, also criticized Congress as an institution (particularly, the Senate). If he had singled out one member of Congress for condemnation, then that would probably have a "troubling" impact. But Obama criticized both Congress and the Supreme Court as institutions, and this is indisputably part of his role as the Executive.

SECOND, Presidents have made far more dramatic -- and troubling -- critiques of the Court. After delivering numerous speeches criticizing the Court, FDR infamously proposed to "pack" the Court with several new justices in order to achieve the results he wanted in litigation. Thomas Jefferson also frequently criticized the Supreme Court -- at one point, accusing it of being "jealous" of Congress and the President. When Jefferson first took office, he and the Democratic-Republican Congress enacted the Judiciary Act of 1802 which suspended the Court for a year and immunized from judicial review their decision to repeal the Judiciary Act of 1801. Next to these historical actions, Obama's few words about the Court during the SOTUA are innocuous.

THIRD, at least one other President has utilized the SOTUA to criticize the Supreme Court. As Yale Law Professor Jack Balkin has argued, FDR devoted almost 1/4 of his 1937 SOTUA to criticizing the Court.

Bottom Line
It is important to analyze Obama's few seconds of commentary about the Court from an historical perspective. Viewed in the context of history, Roberts is troubled over a tradition of presidential criticism of the Court. For that reason, Roberts' annoyance is misplaced. The Court has never been above critique in any particular venue -- and there are many good reasons for preserving this tradition. That Roberts has voiced his displeasure, joining Justice Alito who grimaced during the SOTUA, proves that in spite of the criticism, the Court remains independent.

UPDATE: Salon's Glenn Greenwald has responded to Roberts. Greenwald is a lot less diplomatic than I am. His analysis, though, is solid!

See: The majestic petulance of John Roberts.

UPDATE II: GWU Law Professor Jonathon Turley has an additional point. Roberts complained that "protocol" requires that the justices remain emotionless during the talk. This made Obama's criticism "troubling." But, Alito did not remain emotionless; Roberts, however, did not criticize -- or apparently even acknowledge -- Alito's grimace.

The Onion Offers the Best Criticism of Supreme Court Ruling in Citizens United

The Onion strikes again. Today, the satirical magazine offers the best criticism of the Supreme Court's ruling in Citizens United -- a case that lifts many of the restraints upon corporate spending during elections. Many commentators have argued that the decision will dramatically increase the power of monied interests in the nation's political system. President Obama used the State of the Union Address to criticize the ruling as well.

The ruling rests on the notion that corporations have constitutional rights afforded to "persons" by the Constitution. The Onion takes that argument to a logical conclusion in the satirical essay: Supreme Court Allows Corporations To Run For Political Office.

Here is a snip:

"This is an unfair, ill-advised, and tragic mistake," Sen. John McCain (R-AZ) said before boarding a flight to Arizona in response to primary poll numbers that show him trailing the Phoenix-based company PetSmart by a double-digit margin. "Despite the deep discounts and exciting promotions that they may be able to offer, these huge, soulless entities are not capable of truly serving the American people's—or their pet's—needs."

Great stuff!