The Supreme Court ended its OT07 term on June 26, 2008.

We are hosting a live online written forum on the end of the Supreme Court OT07 term. Participants include Case Western's Jon Adler, Boston University Law's Jack Beermann, Northwestern Law's Steve Calabresi, Cooper & Kirk's Chuck Cooper, Baker Bott's Allyson Ho, Erik S. Jaffe, P.C.'s Erik Jaffe, Georgetown Law's Marty Lederman, NYU Law's Rick Pildes, George Washington Law's Jeffrey Rosen, Harvard Law's Mark Tushnet, and the Ethics & Public Policy Center's Ed Whelan.

Questions and Answers:

Rick Pildes: The Enigma of Judicial Review:  From Guantanomo to Guns

The largest theme of this Term, in my view, is that it leaves something momentous for some to love, something momentous for some to deplore, and in ways that will likely leave all observers feeling some of both.  This is the Term the constitutional right to bear arms was recognized, at the same time it was the Term that the constitutional right to habeas corpus of alien detainees held during wartime was also recognized.  Both of these extraordinary decisions will be the subject of passionate adulation by many and just as intense condemnation by others.  In that sense, the Term spawns renewed attention. but in a particularly challenging way, to the most foundational question of all:  is there a defined role for the Supreme Court and the Constitution and can any theory or approach to judicial review succeed in keeping the Court within that role.  Put in other terms, is the cost of judicial review in the cases one person or one another deplores almost inevitably entailed by the benefits of judicial review in the cases that same person applauds?

If we code the decisions in the simple-minded political terms editorial page writers will no doubt use, there were decisions of enormous practical and symbolic consequence that political liberals will celebrate.  The most significant, no doubt, is the Court's 5-4 decision that detainees at Guantanamo Bay have a constitutional right to seek habeas review in the federal courts.  This decision is far more momentous than the Court's prior decisions involving Guantanamo because here, for the first time, the Court confronted not a unilateral executive branch policy, but a statute of Congress that reflected congressional-Presidential agreement about the process to be used to decide whether individual detainees were enemy combatants.  The Court has rarely held unconstitutional the concerted judgment of the entire political structure of the national government for how to deal with issues connected to detention of aliens alleged to be combatants.  Of course, the Court has also never confronted a context in which detention has gone on for so long, with little apparent prospect of its imminent end.  But the habeas decision is not the only groundbreaking decision on this side of the line.  The Court's decision holding the death penalty unconstitutional for rape of a child not resulting in death * and its holding that the death penalty is never constitutional for one who does not kill or intend to kill, except for "crimes against the state" * will be celebrated by death-penalty abolitionists (although Sen. Obama did criticize the decision for going too far) and condemned by "conservatives" as aggressive judicial overreaching.  Similarly, though more complex to untangle in simple political terms, the Court struck a significant blow against unilateral executive power in the Medellin case, where the Court held President Bush had acted unconstitutionally to ordering the state courts to re-open certain capital cases in order that the US comply with the decision of the International Court of Justice.  These are not marginal cases.  They are all pathbreaking ones, with profound legal, political, and cultural resonances, and those conventionally considered liberal have much to celebrate in these signal cases.

But of course, there is much, as well, that conventional political conservatives will celebrate.  The most visible, of course, is yesterday's 5-4 decision recognizing that the Second Amendment protects an individual right to keep and bear arms.  But the Court also rejected a facial challenge to the first photo identification law for voters that it confronted, an issue the subject of intense partisan opinion and divide.  And the Court held unconstitutional a provision of the McCain-Feingold law, which will symbolically, at least, be seen as an attack on the whole campaign-finance regulatory scheme * and for that reason, celebrated by conservatives who have long abhorred McCain-Feingold (My own view is that the particular provision at issue should have been struck down, because it entailed much too great a risk of incumbents loading the deck for their own benefit, so there are reasons to invalidate this provision without condemning the whole McCain-Feingold regime).  Similarly, the Court generated results in a number of important cases for which business interests are likely to be grateful:  aggressively limiting the scope of punitive damages in Exxon Valdez; finding state tort suits for damages preempted under federal law; precluding more expansion in the kinds of claims concerning security fraud that can be brought.  So in cases of both high cultural and political visibility, and cases of great practical consequence, the Court provided much that, purely in terms of bottom-line results, will please political conservatives.

Thus, back to my opening:  this is a Term where, in popular and conventionally-defined political terms, each side has to take with the bitter with the sweet.  One consequence, of course, is that makes the Court one of the most interesting and complex institutions of government to pigeonhole.  But more deeply, the Term cannot help but re-raise the question of the relationship of judicial review and democracy.  If we must all take the bitter with the sweet, does that mean the Court is simply playing much too dominating a role on such large issues, and we should, ideally, have a democracy with a more modest role for the Court?  Or does it mean that the Court has a sense of its role about right, which means it will occupy such a large presence in our public life, with perhaps the inevitable consequence that, if so, it will alternatively encourage and infuriate liberals and conservatives * in the same Term. 

Mark Tushnet: Rick Pildes's post makes many points, of which I want to re-state (and re-phrase) one.  Those who follow the Supreme Court's work closely know that it is entirely unhelpful to talk about an "activist" Court or one that is "judicially restrained."  Those terms are almost entirely parasitic on one's views about what the Constitution properly interpreted really means:  The Court should be activist in striking down statutes that violate the Constitution properly understood, and restrained -- actually, completely quiescent -- otherwise.  All the interesting work is done by your account of what the Constitution means.

For me, the interesting questions are about the persistence of a rhetoric of activism and restraint in political discussions of the Supreme Court.  It's clear that politicians find that rhetoric more helpful to them than a rhetoric focusing on the Constitution's actual meaning.  But why?  Maybe it's that talking about what the Constitution means requires a politician to take a position -- which, these days, politicians don't like, because taking a position means alienating someone who might otherwise vote for you.  (Times have changed:  The Lincoln-Douglas debates were about what the Constitution meant.)  Academics and others who write op eds about the courts have less -- in my view, no -- excuse for using the terms "activism" and "restraint."  "Right" and "wrong" would do just fine.

But there's one qualification.  I meant it when I wrote "almost" entirely parasitic.  There are a few people -- me among them -- who think that judicial activism is in itself a bad thing -- that is,  that courts shouldn't be the primary, or even an important, locus for constitutional interpretation.  Of course that position is quite unrealistic in today's conditions.  No one is going to strike the Grand Bargain in which conservatives and liberals would agree not to strike down laws they don't like ("laws that violate the Constitution properly interpreted," if you like).  And the very existence of judicial review makes such a Bargain risky, at least if implemented immediately.  Senator Arlen Specter voted in favor of the statute invalidated inBoumediene precisely because he was confident that the Supreme Court would find its habeas provisions unconstitutional.  Wouldn't he have been surprised if the Court said, "Oh by the way, we're going out of the business of striking statutes down on constitutional grounds, and today's the first day we've shut down"?

So -- and this is a genuine question -- how can we help people, including politicians, understand that "activism" and "restraint" arent' helpful terms, and that it's just fine to talk about what the Constitution means?

Erik Jaffe: I suppose I will start with a modest prediction regarding where the Court might be headed on campaign finance issues.  Based on yesterday’s decision in Davis v. FEC, it seems that Justice Alito is solidly in the camp that is skeptical of restrictions on campaign contributions and might eventually be willing to reconsider Buckley on this point, at least in part.  Near the end of his opinion he observed that “If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a ‘public perception that wealthy people can buy seats in Congress,’ Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits.”  Slip. Op. at 17-18. There was no occasion to take that step in Davis because none of the parties had asked for it, but one can safely predict that some future party will do so.  And given the Congressional claims that all of the above effects are true, it seems difficult for the government to argue that the lower contribution limits of $2300 are necessary to combat corruption. See id. at 14-15 (“[G]iven Congress’ judgment that liberalized limits for non-self-financing candidates do not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the resulting constitutional burden.”).

Justice Alito also makes an interesting observation, at 16, regarding the various strengths that different people may have as candidates, including celebrity, name-recognition, wealth, and “wealthy supporters who are willing to make large contributions.”  He treats each of these as at least comparable, if not identical components of a candidacy and treats them as factors within the authority of the voters, not Congress, to evaluate when voting.  Given a weakening of the corruption rationale – or at least Congress’ inconsistent pursuit of that interest – that may be enough to undermine the justification for lower limits at all.  Justice Alito does, of course, cite to precedent supporting contribution limits when he notes, at 10, that  had the law “simply raised the contribution limits for all candidates, Davis’[s] argument would plainly fail.”  While that might be viewed as endorsing contribution limits in concept, when coupled with his subsequent explanation, it seems to be no more than a nod to existing precedent, which the parties had not challenged.

What we might initially see, therefore, is not a wholesale abandonment of contribution limits, but rather a lesser deference to congressional judgments about where those limits should be set given that Congress has made inconsistent judgments about the need for a particular monetary limit.  Randall already demonstrated that the Court’s deference on that point is not absolute.  Taking the commercial speech cases as a possible model, the Court might expand its view of particular limits and whether they sufficiently advance the government interest asserted by looking to inconsistencies in Congress’ application of the limits and interests.  If the corruption interest was insufficient – on the margin between $2300 and $6900 – to overcome the government’s claimed “interest” in competitive balancing – a constitutionally illegitimate interest – then it is hard to see how that marginal corruption interest is sufficient to overcome the constitutional burden that the lower limit places on speech.  It may take some time, and a number of additional cases, but Davis seems like a harbinger of heightened scrutiny of contribution limits in general, not merely a one-off case limited to differential limits within a single race. 

Erik Jaffe: I just want to pick up on one point Mark Tushnet makes regarding the role of the Supreme Court.  He notes that Arlen Specter voted for the statute invalidated in Boumediene precisely because he thought it would be struck down as unconstitutional.  To me the interesting further question is whether he thought it should be struck down because he himself thought it was unconstitutional.  Without having thoroughly studied the question, it seems to me that quite a number of Senators and Congressmen vote for laws that they believe, or at least say they believe, to be unconstitutional, with the expectation or hope that he Supreme Court will strike the law down and thus take the heat for blocking a popular but unconstitutional measure.  The passage of BCRA had some notable examples of such behavior.  Such passing the buck by Congress is a particular hobbyhorse of mine, and I despair of any more modest role for the Supreme Court when the alternative is a constitutional vacuum with the elected branches having seemingly no interest in independently complying with constitutional limits.  Perhaps if the Court did just stop one day, the vacuum would draw in the other branches and make them more willing to vote according to their own constitutional views, even where it meant not doing something they would like to do, but I am far from optimistic.  In the end, therefore, the Supreme Court has to “actively” enforce the constitution because nobody else will.

Jack Beermann: I want to get into a bit more nitty gritty than the two posts I have so far, from Mark Tushnet and Rick Pildes.  Since this is a Federalist Society sponsored forum, I figured I would talk about federalism in a couple of areas.

I would like to talk first about federalism and the Court's preemption jurisprudence.  The Court has taken consumer protection statutory provisions passed at a time when State protections were thought to be inadequate, and transformed them into engines of tort reform, trammeling on the States' traditional control of police power matters, including product liability law.  The Riegel decision is this term's best example of this, which held 8-1 that the Medical Device Amendments of 1976 preempt state product liability claims with regard to devices approved by the FDA under the law's most rigorous approval regime. Next term, the Court is going to look at whether claims relating to approved prescription drugs are also preempted.  The Court's preemption decision not only ignores traditional understandings of state control in this area, it also avoids basic preemption understandings, which is that preemption is a matter of Congress's intent.  Congress expressed its intent in the Medical Device Amendments by including a savings clause, which states that compliance with the law does not affect liability under state law.  The Court has constructed a doctrinal edifice to justify ignoring Congress's expressed intent in favor of the Court's constructed version of what Congress must have intended.

Another anti-federalism decision this term was the Court's decision in Chamber of Commerce v. Brown, preempting California's statute that prohibited the use of state grant money to "assist, promote, or deter union organizing."  This seems to me to strike at the heart of State power, the power to place conditions on the use of state funds.  The Court's justification for the decision was the difficulty recipients of state funds would have in proving that their union organizing activities were funded out of funds other than the state funds.  But there was no actual case of enforcement that raised this issue, and as the dissent pointed out, the Court should have at least waited for such a case.  The Court here reached out to decide an issue that did need deciding because it was apparently anxious to extend the preemptive reach of the NLRA.  I should add that the NLRA has no preemption provision, so the entire area is Court-created based on a fictional version of Congress's intent.

Another federalism related issue I want to raise is the Court's use of a tally of State practices to inform its constitutional decisionmaking. The most ovious example of this from this term is the Kennedy v. Louisiana decision invalidating the death penalty for child rape.  I am not a fan of the death penalty, but I found the Court's reasoning unpersuasive on one point--what the fact that only 6 states allow this penalty shows.  First of all, federalism is supposed to mean that States are free to chart their own courses, and this is good because it provides a "laboratory" for experimentation etc.  Second, the truth is that several states, perhaps all 6, enacted their laws since 1995, which makes it difficult to say that there is a current consensus against this penalty. Third, the despite the Court's unconvincing arguments to the contrary, it seems clear that some states may not have these laws on the books because they thought the issue was settled.  Florida, for example, is not counted as a state with the death penalty for child rape because its Supreme Court struck down Florida'a law, heavily under the influence of prior U.S. Supreme Court decisions.  The Eighth Amendment jurisprudence the Court has constructed requires examination of community standards, so the Court does have to look at what the States are doing, but in some areas that is not true and the Court still uses the fact that a state is in the minority as support for finding a state practice unconstitutional.  The example that comes to mind in the decision in Connecticut v. Doehr from the 1990s that pre-litigation writs of attachment without a prior hearing violate due process.  Only a few States had this practice, which the Court used as evidence that the practice was unconstitutional.  This seems to fly in the face of federalism principles. 

Jon Adler: Before wading into the details of some of the more interesting cases, I thought it would be worthwhile to make some general observations about this term.  First, OT2007 looked very different from OT2006.  One year ago, some commentators confidently proclaimed (if also lamented) that a conservative majority had – at long last – taken over the Court, producing unprecedented levels of division and dissension among the justices.  More sober analysts suggested such proclamations were premature.  The line up of cases in any given year could provide an unrepresentative picture of the Court as a whole, particularly given the size of the Court’s docket.  So while OT2006 may have seemed particularly conservative and contentious (particularly if one focused on the cases handed down at term’s end), it was not necessarily a portent of things to come.

One year later, we can see that the Supreme Court is not as ideologically riven or right-leaning as we were led to expect.  The Court issued half as many 5-4 decisions as last term, as a percentage of the Court’s decisions, and rarely divided along traditional ideological lines.  Indeed, there were only eight cases featuring a right-left 5-4 split, with both the right and left winning its share of those cases. Justice Kennedy seemed to control the outcome in every close case last year, but not so much in OT2007, where he found himself dissenting much more often.   Indeed, overall Chief Justice Roberts was in the majority more often than was Kennedy.

This past term also saw quite a few cases in which the level of division and discord was less than one might have expected.  The Court’s decisions on mandatory voter ID (Crawford) and lethal injection were 6-3 and 7-2 decisions respectively.  The Court’s big preemption cases also showed a high degree of unanimity.

There are several potential explanations for the relative lack of 5-4 decisions and traditional ideological splits.  One is that with such a small docket, the divisions across cases are heavily dependent on the selection of cases before the Court.  A second potential explanation is that Court majorities are drafting and joining narrower opinions that can garner more agreement.  Majority opinion authors are finding it easier to make modifications that can pick up one or two more votes on the margin by drafting less sweeping opinions.  This “minimalist” approach is reflected in the relatively narrow holdings of most of the Court’s opinions this term.  It is also wholly consistent with the approach to judging that the Chief Justice and Justice Alito embraced in their confirmation hearings.  As a consequence, the mildly conservative judicial minimalism of OT2007 may well provide an indication of what we will see from the Court in years to come.

Ed Whelan: Like Jonathan Adler, I'd like to begin by offering some general observations.  (In a later post, I'll take issue with Mark Tushnet on the value of the term "judicial activism".)

1.  For the reasons that Jonathan states, one should be careful not to draw too many lessons from a single Court term.  The scaremongering from the Left after the 06-07 Term (see, as just one example, these excerpts from Ronald Dworkin's The Supreme Court Phalanx:  The Court's New Right-Wing Bloc) was ridiculous.  I stand by my own observations from a year ago (here and here), including:

If crude political shorthands must be employed, then the Supreme Court's just-completed [06-07] term is best summarized as a small step towards the right -- and towards the center.  I am not contending that the Court is walking in opposite directions.  Rather, after decades of liberal judicial activism on so many issues, the Court's position remains decidedly on the left.

Let's not give undue attention to the minor surprises of this past Term.  The profile of the current Court is clear.  We have -- assessed against my benchmark of principles of original-meaning jurisprudence and judicial restraint -- four liberal judicial activists, four strong justices, and one justice, Kennedy, who fancies himself the moral conscience of the nation.  As Kennedy goes, so goes the Court on any significant constitutional issue with political coloring.  That will remain the case unless and until the composition of the Court improves.

2.  One welcome mark of the early Roberts Court is an emphasis on the distinction between facial and as-applied constitutional challenges to statutes, with the former facing a high bar.  We saw this a year ago, of course, in the partial-birth abortion decision (as I discuss in this essay), and the same distinction was prominent in, and helped produce supermajorities in, at least three cases this past Term:  United States v. Williams (federal law that criminalizes the pandering or solicitation of child pornography is constitutionally permissible);Crawford v. Marion County Election Board (rejecting a challenge to Indiana's voter-identification law); and Washington State Grange v. Washington State Republican Party(rejecting challenge to ballot-identification law).

I confess that I don't care much for the fuzzy concept of minimalism, largely because Cass Sunstein has made such a hash of it, but insofar as adherence to the proper standard for facial challenges is regarded as minimalism (I regard it as a tenet of judicial restraint), let's have more of it.  A statute shouldn't be invalidated in its entirety merely because some clever plaintiff's lawyer can hypothesize some set of facts in which the statute might apply unfairly.

3.  The two worst rulings of the term, in my judgment, are easy to identify:  Boumediene v. Bush (constitutional habeas rights for alien detainees at Guantanamo) and Louisiana v. Kennedy (no death penalty for child rape).  Not coincidentally, these are two of the three rulings that Rick Pildes observes that "political liberals will celebrate."  I am surprised, though, that Rick's third ruling in this category is Medellin v. Texas, in which the Court ruled, in a superb opinion by Chief Justice Roberts, that a judgment rendered by the International Court of Justice is not directly enforceable as domestic law in a state court and that the President did not have authority to bind state courts to follow the ICJ judgment.  Medellinmay well be my favorite ruling of the entire Term, as I'm hopeful that it will prove a landmark in forestalling the efforts of internationalists to use treaty interpretations by international bodies to impose on American citizens obligations that American citizens won't adopt through the legislative process.  The peculiar assertion of executive authority that the Bush administration advanced -- presumably on the urging of the State Department --deserved to lose, and I don't see that defeat as "a significant blow against unilateral executive power."  

Steve Calabresi: I am struck by the success Chief Justice Roberts had this term not only in avoiding 5 to 4 splits but also in winning over all of his colleagues to some degree except arguably Justice Breyer.  In the Exxon-Valdez case this week, Roberts cleverly assigned the opinion to Justice Souter who wrote a very impressive, historical common law opinion that essentially enacted tort reform.  Since Souter is the only one of the current justices to have served on a state Supreme Court, he alone among the justices has experience writing common law opinions.  At the same time, Justices Scalia and Thomas went along with Exxon-Valdez majority notwithstanding their past refusals to endorse limits on punitive damages.  Admittedly, Exxon-Valdez was an admiralty case, not a substantive due process case, but I still think the silence from Scalia and Thomas here was noteworthy.  Just as noteworthy was the fact that Justice Kennedy joined Justice Scalia’s opinion in Heller in full, and he did not write a narrowing concurrence.  This allowed Scalia to write what is undoubtedly the most important majority opinion of his career.  Roberts’ assignment of the majority opinion in Heller to Scalia was a brilliant move.  The case concerned an area of law where there was little precedent and so the issue required an originalist opinion.  Delivering such opinions is Scalia’s forte.  At the same time, Scalia himself has been unable ever before to get a majority behind such an opinion.  Perhaps Roberts helped him to do that.  It must have been very hard for Roberts to give the best opinion of the term to Scalia rather than writing it himself, but it was a very clever and wise move on his part.  Roberts seems to have real leadership ability.

The Roberts court this year also decided more cases important to business than in prior terms which may be part of why there were fewer 5 to 4 decisions.  These nine justices are not as sharply divided on the issues business cases raise as they are on other issues.  This too would seem to reflect Roberts’ interests.  Finally as others have said, the opinions have generally been narrower and more modest as Roberts promised they would be in his confirmation testimony.  This again causes one to wonder if the Chief’s views might be being accommodated by others on the court.

John Roberts is the youngest Chief Justice to be appointed since John Marshall in 1801.  This term suggests that over the long haul the Roberts appointmentcould turn out to be very consequential.

Allyson Ho: Thanks to the Federalist Society for hosting this debate and inviting me to participate.  I'd like to expand on Steve Calabresi's point about the greater consensus among the justices in the business cases.

Of the thirty business cases decided in OT06, twenty-two were decided unanimously, or with only one or two dissenting votes.  That trend continued this Term, with several of the most significant business cases decided by wide margins.  Among the fifteen cases in which the U.S. Chamber of Commerce participated, for example, twelve were decided by margins of 7-2 or higher and five were unanimous.  The two preemption cases criticized by Jack Beermann in his post, for example, were decided by margins of 8-1 (Riegel) and 7-2 (Brown).  Two closely watched arbitration cases—Hall Street Associates v. Mattel and Preston v. Ferrer—were decided 6-3 and 8-1, respectively.  And the Court decided a pair of employment discrimination cases dealing with retaliation claims by margins of 7-2 (Humphries) and 6-3 (Gomez-Perez).  (In fact, all five employment cases this Term resulted in victories for workers.)

Not only does the Court’s business docket produce greater consensus among the justices, it also results in interesting lineups that cut across ideological lines.  Justice Stevens authored the majority opinion in Brown favoring federal preemption, for example, while Justice Alito authored the Court's opinion in favor of the employment discrimination plaintiff in Gomez-Perez.  Justice Thomas was the lone dissenter in Ferrer, reiterating his view that the Federal Arbitration Act does not apply in state-court proceedings, while Justice Souter wrote for the Court in the blockbuster—and more closely divided—Exxon case, in which a five-justice majority ordered a $2 billion reduction in a punitive damages award against Exxon that resulted from the 1989 Exxon Valdez oil spill.

As the Exxon case shows, this Term’s business docket was not all sweetness and light.  The Court also deadlocked 4-4 in the high-profile Warner-Lambert preemption case.  And inStoneridge—hailed as the most important securities case in decades—Justice Kennedy’s majority opinion rejected the so-called “scheme liability” theory, which would have permitted a company’s accountants, banks, and vendors to be held liable as primary violators for securities fraud.  Stoneridge is notable as one of the few business cases this Term that did divide the Court along ideological lines.

Although these are just early data points for the Roberts Court, I think it’s a good bet we’ll continue to see the Court devote a significant portion of its docket to business cases, and that those cases will continue, on the whole, to elicit greater consensus among the justices.  In particular, I suspect we’ll continue to see the Court’s business decisions animated by practical concerns, expressed in cases such as Twombly (pleading standards), Stoneridge (class actions), and Exxon (punitive damages), about the costs and unpredictability of civil litigation—concerns that cut across ideological lines and defy conventional notions of individual justices as “conservative” or “liberal.”

Jeffrey Rosen: Just a brief note to say how striking it was that Chief Justice Roberts succeeded this term in doing precisely what he promised to do when he took the helm: convince his colleagues that it was in their interest to converge around narrow, united opinions. As others have noted, the 5-4 splits plummeted this year, and lopsided majorities -- especially in the business cases -- rose. One obvious question: why was Roberts so much more successful in achieving his vision this term than he last term? Some possible answers have already been suggested -- namely, that Roberts used his assignment power deftly and encouraged the Court to take more business cases and fewer culture war cases. But shouldn't Roberts also get credit for encouraging the authors of majority opinions to avoid sweeping holdings and to leave divisive questions unanswered -- as he did in the Voter ID and lethal injection cases? And he also maintained centrist bipartisan comity in some cases by allowing Justices Scalia and Thomas to peel off with more extreme concurrences. Of course it's too early to judge an entire tenure, but it's clear now that Roberts has a clear vision for where he wants to take the Court and was notably successful this year in implementing it. For the beginning of a Chief Justiceship that may last decades, that's an impressive achievement.  

Ed Whelan: I’d like to dispute Mark Tushnet’s claim that “judicial activism” and “judicial restraint” aren’t -- and, as I understand him, can’t be -- helpful terms.

Mark’s starting point is his proposition that the terms “judicial activism” and “judicial restraint” “are almost entirely parasitic on one’s views about what the Constitution properly interpreted really means.”  I propose two friendly amendments to his proposition.  First, the terms depend not just “on one’s views about what the Constitution properly interpreted really means” but also on one’s views about any additional principles that should guide judges (as opposed to other constitutional interpreters) as they exercise their particular role.  (I think that Tushnet’s third paragraph indicates his agreement with this amendment.)  Second, I’d change the odd pejorative “parasitic” to “dependent”.

Whether from Mark’s original proposition or my modified one, it doesn’t follow, though, that the terms “judicial activism” and “judicial restraint” are unhelpful.  The term “judicial activism”, as I believe it should be used,* identifies one category of judicial error in interpreting the Constitution:  the wrongful overriding of democratic enactments (often through the invention of supposed constitutional rights).  That category of judicial error is distinct from a second category, which I call “judicial passivism” -- the wrongful failure to enforce constitutional rights.

In distinguishing these two categories, I don’t mean to imply that one category of error is worse than the other.  The two categories are, however, qualitatively different in several respects.  One difference is that errors of judicial passivism are correctible through the ordinary political processes:  statutes can afford the protections that the Court wrongly denies.  By contrast, errors of judicial activism usurp the political processes and are correctible only by extraordinary means:  the Court’s reversal of its erroneous precedent or constitutional amendment.

Judicial interpretation of the Constitution is not a mere intellectual game, and the term “judicial activism” succinctly captures the Court’s wrongful invasion of the realm of representative government and the injury that invasion inflicts on the powers of American citizens.  More particularly, the term “liberal judicial activism” draws its potency from the Court’s repeated entrenchment since the 1960s of the policy preferences of the Left in the guise of constitutional rights.  To paraphrase the old Smith Barney commercial, the term “liberal judicial activism” has acquired its stigma the old-fashioned way:  it’s earned it.  Given the ongoing threat that liberal judicial activists pose (both in clinging to ill-gotten gains on matters like abortion and in new or foreseeable incursions like the invention of a constitutional right to same-sex marriage, the conferral of constitutional rights on foreign terrorists, and the invention of a constitutional right to clone), the vigorous use of the term “liberal judicial activism” is a public service.

* I agree that the term “judicial activism” is unhelpful if it is used merely to signal one’s disagreement with a ruling or if it is neutered to refer to every exercise of judicial review (whether right or wrong) that results in the invalidation of a statute or regulation.

Mark Tushnet: This may be so obvious as to be a waste of band-width, but all the work in Ed Whelan's post is done by the word "wrongful," and all the disputes about whether some decision is activist or not depend on (are parasitic upon) one's account of what makes a decision wrongful.  Nothing is added to the statement, "This conservative -- or liberal -- decision finding a statute unconstitutional is wrong" by saying, "This is a conservative -- or liberal -- activist decision."

Ed Whelan: Mark Tushnet misreads my post.

I did not dispute Mark's point, in his initial post, that the term "judicial activism" does not perform analytical work in determining whether a decision is wrong.  On the contrary, I explicitly agreed with it, subject to a couple genuinely friendly modifications.

The point of my post (as set forth in its final three paragraphs) was to explain that the term "judicial activism" is nonetheless helpful on a separate matter:  naming one category of (actual or alleged) judicial error that is qualitatively different from the category that I call "judicial passivism".  If Mark would like to argue that those categories are not qualitatively different, then he would be taking issue with me.  (And if he does, I may be rather slow to respond, as I am leaving on vacation.)

Chuck Cooper: My late arrival (with apologies) to this discussion affords me the benefit of many interesting comments, but leaves me with little left to say. Ed Whelan’s points especially (and as usual) mirror my thoughts. They also stir my originalist juices, so I will go straight to what I believe is the Term’s most egregious example of liberal judicial activism (using that term, sorry Mark, as Ed correctly defines it). In Kennedy v. Louisiana, the Court decided, 5-4, that the State of Louisiana could not impose the death penalty on one Patrick Kennedy for the rape of his 8-year-old stepdaughter, a crime so brutal that the little girl’s physical injuries required emergency surgery to repair.  Justice Kennedy’s majority opinion was categorical: A state can never impose the death penalty for the crime of raping a child, no matter, as Justice Alito powerfully noted in his dissenting opinion, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”  To justify the Court’s usurpation of the State’s traditional authority over crime and punishment, Justice Kennedy relied, first, on a supposed “national consensus against capital punishment” for child rapists, including recidivists like Patrick Kennedy, and, second, on the majority’s “own independent judgment” that contemporary “standards of decency” would be offended if Louisiana was permitted to execute a man who merely savagely rapes a helpless little girl, but does not kill her.

Even accepting at face value the highly dubious notion that Louisiana’s reserved police powers over a contentious criminal justice issue may be constitutionally limited by the decisions reached on the issue by a majority of the other states (a proposition that affronts, as Jack Beerman has already noted, the very premise of federalism), the majority’s belief that there is a “national consensus” supporting its view surely must be feigned.  The evidence marshaled by the majority for this national consensus is methodically rebutted, piece-by-piece, by Justice Alito. But the most devastating answer to the majority came from the campaigns of both presidential candidates. Both Senators McCain and Obama immediately rejected the Court’s ruling. If Senator Obama (the most liberal member of the Senate, for Pete’s sake) is forced by national politics to announce his disagreement with the majority’s decision, can there really be any doubt about where the “national consensus” truly lies on sparing the lives of grown men who rape little children.

Nor was the majority troubled by the fact that its ruling would bring to a dead stop the renewed effort in some states to reinstitute capital punishment for child rape, and thus would prevent the possible formation of a new (and undeniable) “national consensus” on the issue.  The majority opinion made clear that the Court’s capital punishment jurisprudence is a one-way ratchet, capable of movement only in the direction of the majority’s own perception of “evolving standards of decency that mark the progress of a maturing society. “  For society to backslide on this issue would run counter to “the rule of evolving stan­dards of decency with specific marks on the way to full progress and mature judgment.” (Emphasis added.)

Had the Kennedy majority ended its analysis here, its decision would at least have provided a safe precedential haven for capital punishment in first degree murder cases, given the undeniable national consensus (36 states) supporting it. But even that can’t be taken for granted, for the majority made clear that its perception of the “national consensus” on Eighth Amendment issues is not dispositive.  Rather, the issue in Kennedy turned, in the end, on the majority’s “own independent judgment” about the “decency” of executing a man “convicted of raping a child less than twelve years of age.” After carefully weighing a variety of public policy considerations (presumably the same policy considerations weighed by state legislatures in arriving at their differing judgments on the issue) and after offering a brief sermon on the “dignity of the person” (the person of the rapist, not his victim[s]), the majority effectively pronounced Louisiana’s legislature, its jurors, and its courts indecent,literally, for determining that Patrick Kennedy should pay for his heinous crime with his life.

Which brings me to a minor quibble with Steve Calabresi’s point that Justice Souter, given his service on the New Hampshire Supreme Court, is the only Justice with experience writing common-law opinions. The majority’s decision in Kennedy is common-law adjudication in its purest form. True, the case purports to interpret and apply a specific provision -- the Eighth Amendment – of our written Constitution. But the majority openly analyzes the constitutional issue as a public policy question, and it adopts the public policy it favors as constitutional law. The Court has no shortage of Justices who are highly experienced at this type of judging.

Chuck Cooper: You have probably heard by now that the parties, their amici, and the Justices in the child rape case all somehow overlooked some powerful evidence that undercuts, to say the least, the majority’s intuitively implausible finding that there is a national consensus against capital punishment for the crime of child rape, no matter how brutal the assault, how young the victim, etc, etc. The New York Times reports today that in 2006, Congress amended the Uniform Code of Military Justice to add child rape to the list of offenses for which the death penalty is authorized. Hmmmm. This would appear to be a truly inconvenient truth for the majority’s “national consensus” rationale. Maybe it can be salvaged, but the answers seem quite limited. Perhaps Congress wasn’t informed in 2006 about how much our society has matured, and how far our standards of decency have evolved. Or perhaps the national consensus against capital punishment for child rape did not form until after Congress enacted it two years ago. Or perhaps there is a different national consensus with respect to executing child rapists who serve in the military. Or perhaps the child rape provision was slipped into the legislation when no one was looking, like an earmark, and Congress can’t be held responsible for it. But if the majority’s national consensus rational, which was already transparently weak, can no longer be taken seriously, the decision will be stripped of any pretense that it rests on anything more substantial than the personal policy preferences of five Justices. It will be interesting to see how the Court treats with the rehearing petition.

Mark Tushnet: I was struck by something a bit different -- a truly stunning failure of advocacy on the part of what has come to be described as an increasingly professional Supreme Court bar.  The approach the Court was going to take was clear, and indeed the briefs focused on the kind of survey of legislation that one would expect.  How the lawyers (particularly for the state, but also for amici supporting the state) failed to locate an obviously relevant statute -- it's an act of Congress after all, they're not that hard to find -- is truly astonishing.  Were this private litigation, I'd advise a client to have a serious discussion with the lawyers about their fees.

Marty Lederman: I agree with Mark, to this extent:  The failure of any of the parties and amici to flag the new statute is rather remarkable, especially since there were very experienced SCOTUS lawyers representing amici on the respondents' side, including Ted Cruz and Chris Landau.  Nor is the statute listed on this website, which evidently was a principal source that several of the amici relied upon. More remarkable still: As Linda Greenhouse reports today, no one in the SG's Office discovered the law, either.  Presumably none of the memos to the SG from the DOJ components and interested agencies mentioned it -- because if they had done so, the SG would undoubtedly have appeared as amicus on behalf of Louisiana. (I suspect no one in the Criminal Division knew about it; and it probably did not occur to the SG's Office to ask DoD for a recommendation.  On the other hand, if folks in DoD were aware of the law, presumably they would have sua sp onte flagged it for the SG. Hmmm . . . .)

So let's assume that the States were unaware of it. And so was the SG's Office and the rest of DOJ. And possibly even most or all of the relevant authorities at DOD. And all of the amici. And the Court and its numerous clerks.  And that this provision was included on the 129th page (in Statutes at Large) of a 420-page omnibus authorization bill.  And that the provision was not discussed in the Conference Report (except where the bill language was set out).  And that it was not so much as mentioned, let alone debated, by any legislator on the floor of the House or Senate.  (My own cursory Westlaw search confirms this!)  If all that is true -- if virtually none of the legislators who voted for the bill knew about this amendment to the UCMJ, and it received no public attention whatsoever, for almost three years after its appearance in the bill and over two years since the President approved it, and it was never implemented, and none of the very fine lawyers working on the case in the government or outside it discovered it in their legal research, then is it really the case, in any meaningful sense, that its enactment "undercuts, to say the least," the Court's assumption that there is a "national consensus against capital punishment for the crime of child rape," as Chuck suggests?

If a federal statute falls in the forest and no one's around, does it make a sound?  Does it undermine what would otherwise be a consensus?

I should add that, as the DOJ statement suggests ("Although no one has been sentenced to death for child rape under the law, we note with regard to the continued constitutionality of the law that the Supreme Court has not resolved the question whether its Eighth Amendment jurisprudence applies with equal force in the context of military capital punishment. Cf. Loving v. United States, 517 U.S. 748, 755 (1996)."), and as Orin Kerr stresses, it's also not at all clear how statutes governing the U.S. military bear on, and are governed by, the Court's "evolving standards of decency" doctrine.

The Court almost certainly will not grant Louisiana's (expected) petition for rehearing -- but I wouldn't be surprised to see a dissent from denial of rehearing in which Justice Scalia pounces on this oversight.

Rick Pildes: I would like to understand better the nature of the criticism of the Court's decision in the Kennedy case from this Term, for those who are critical.  I am not an expert on the Court's death-penalty jurisprudence, and my question is designed to understand better what the structure of this jurisprudence should be through understanding the criticisms accurately and carefully.  One possibility would be to reject the "evolving standards of decency" approach for an originalist jurisprudence that would define the death penalty as "cruel and unusual"only when applied in circumstances that would have been viewed that way at the time the Eighth Amendment was adopted.  But none of the Justices would take that approach, nor do I understand the criticisms of the recent decision to be based on an originalist position of that sort (Mark Tushnet's rejection of judicial review of legislation altogether would produce similar results, in that no modern death-statute would ever be unconstitutional).  If originalism is off the table in this particular field, as I gather all Justices agree, then it seems inevitable that the doctrine will have to be based on some set of principles that sound much like the "evolving standards of decency" that is the current approach.  If there is some other alternative to that, I would like to hear what it is.

But if the Court must operate within the framework of "evolving standards of decency," then it seems two further elements of that jurisprudence are also virtually inevitable.  Yet many of the criticisms of the Court's decision appear to be taking issue with one or both of these elements.  First, the Court is going to have to survey state practices (it might survey more than that, but at a minimum, it will have to look at the states, at the very least) and it is also only going to condemn state practices that are, in some sense, outliers.  Second, the Court could stop with a bare numerical survey and adopt some rule that if fewer than X states have some practice, that fact by itself will determine whether that practice is unconstitutional.  But that kind of arbitrary mathematical rule seems bizarre to me, and I assume it does to many others.  But if that is so, then the second element in the current jurisprudence also seems inevitable:  the Court is going to have to apply some kind of external judgment to the pattern of state practice to come to the constitutional judgment about whether the particular death-penalty statute should be held unconstitutional.  In other words, it is unavoidable in this area, at least, that personal judicial judgment is going to have to be involved in making these decisions.

Again, in this area, there seems no way to make the constitutional principles more objective than they are under the current doctrine.

Thus, Jack Beerman is right that the doctrine is inevitably in tension with "state experimentation" and federalism, but is there a way around that?  And Chuck Cooper is right that the decision inevitably involves personal judgment, but is there a way around that?

In other words, is the criticism of the Court's recent decision a challenge to the general framework used to decide these cases?  If so, is there an alternative framework?  Or is the criticism about how the Court applied that framework in this particular case. 

Steve Calabresi: Rick raises a great question.  How ought the Supreme Court to approach the interpretation of the Eighth Amendment's ban on cruel and unusual punishment as it is incorporated against the States by the 14th amendment?  I would start with the evidence of original meaning.  The question would be not simply what punishments were deemed to be cruel and unusual in 1791, when the Eighth Amendment was enacted, but also what the public meaning of that ban was in 1868 when the 14th amendment was ratified.  By 1868, a number of punishments that were still legal in 1791, like whipping and beating, had come to be regarded as disproportionate.  Imprisonment had replaced corporal punishment and capital punishment as the most common sanction of the criminal law.  In the process, the idea that punishments may not be disproportionate to the crime had certainly come to be more widely accepted than had been the case in 1791.  I am quite certain that major civil law countries had all embraced this idea by 1868.  In any event rightly or wrongly, the Supreme Court held 100 years ago that the ban on disproportionate punishments was part of the meaning of the ban on cruel and unusual punishments.  That holding has been reiterated in dozens of cases now for a century including the evolving standards of decency cases.  I thus am inclined to accept that as settled law, although I know of originalists who would disagree with me on that.  The question then is does capital punishment for child rape constitute a disproportionate punishment either on originalist grounds or because of evolving standards of decency?

Capital punishment for child rape by a state would certainly not have been disproportionate in 1868 so the only issue is whether it violates contemporary standards of proportionality.  We need a rule of recognition for identifying when a new social consensus has emerged such that a state should be precluded from using an historically sanctioned punishment.  The obvious rule of recognition is suggested by Article V:  there must be a consensus of three-quarters of the states -- 38 states presently -- to make new federal constitutional law.  There was no such consensus of three quarters of the states as to the unconstitutionality of the juvenile death penalty or the death penalty for the mentally impaired, and for that reason the Supreme Court's recent decisions striking down those uses of the death penalty are in my opinion wrong.

The death penalty for child rape is a harder question because more than three-quarters of the states do not currently provide for it, but failure to use it as a sanction does not mean three-quarters of the states regard it as disproportionate.  Indeed, my opinion is that the only reason so few states have a death penalty for child rape today is because so many states think such a death penalty is outlawed by the Supreme Court's decision in Coker banning the death penalty for rape of women.  As Justice Alito's dissent in Kennedy v. Louisiana indicated, states appear to be trying to experiment with having a death penalty for child rape -- an experiment which that Supreme Court just ended.  I agree with Justice Alito that there is insufficient evidence of a contemporary consensus that the death penalty for child rape is unconstitutional.  Indeed, I think the contemporary consensus is to the contrary.

My analysis thus far raises three questions.  First, doesn't any use of state nose counting -- even the three quarters rule I just advocated -- risk ending the experimentation by states that federalism makes possible.  The answer is yes, and for precisely that reason the Court ought to be very careful to be sure that there is a national consensus before it holds there is one.  The Court was not careful enough in Kennedy v. Lousiana.

Second, shouldn't the justices own personal views of what punishments are disproportionate, or cruel and unusual, count in the calculus?  The answer to that I think is no because that would involve them in the making of policy.  The meaning of the Eighth Amendment as incorporated by the 14th is either its original public meaning in 1868 or its evolved public meaning in 2008.  This is an objective public meaning which it is the justices' task to discern.  If there is no objective public meaning, either original or contemporary, then there is no constitutional law on point for the justices to apply.  And, if there is no constitutional prohibition, the states statute imposing death as a punishment for child rape stands.  There is no reason in the history of either the 8th or the 14th amendments to think that the people who ratified those amendments meant to delegate to the justices the authority to impose their own personal views as to what punishments are or are not constitutional.

Third, what are we to make, if anything, of the fact that no other western democracy uses the death penalty for murder much less child rape?  Even assuming arguendo that foreign practice is relevant, it must be observed that public opinion polls reveal that substantial majorities of the public in Britain and in Western Europe favor the death penalty.  The only reason that the death penalty is not used in Western Europe is because those societies are elite controlled and are much less democratic and egalitarian than is U.S. society.  For this reason alone, it would be wrong for the Supreme Court to draw any conclusions from the Western European practice on capital punishment.  America is and remains exceptionally democratic and egalitarian as compared to Europe.

I will say that while I think Kennedy v. Lousiana is wrong as a matter of constitutional law, I am not myself a big fan of the death penalty as a matter of policy except for crimes like terrorism, treason, and mass murder.

I might add I am also opposed to the legalization of abortion and assisted suicide for the same reasons.

Chuck Cooper: Rick asks a number of provocative questions about the child rape case, as well as the Court’s Eight Amendment jurisprudence more generally.  My criticism of the Kennedy decision accepted “at face value” the majority’s “national consensus/evolving standards of decency” hypothesis, but expressed grave doubts about the validity of the majority’s determination that the Nation as a whole recoils from the idea of executing a 42-year-old man for the brutal rape of an 8-year-old girl.  I agree with the four dissenting justices that no such “national consensus” is established by the evidence on which the majority relied, and I believe that the majority’s conclusion is wholly belied by the disclosures, after the decision, that Barack Obama disagrees with the decision and that Congress expressly authorized capital punishment in the military for child rape just two years ago.  (I will address Marty’s interesting points about this congressional enactment in a later post.)

I agree with Rick's implied premise that Chief Justice Earl Warren’s “evolving standards of decency” formulation (from Trop v. Dulles) does not reflect the original meaning of the Eighth Amendment, but I don’t think that originalism is “off the table” in this area of constitutional law, or any other.  Nor do at least some of the Justices.  In fact, as recently as 2005, inRoper v. Simmons, the only originalists then on the Court (Chief Justice Rehnquist and Justices Scalia and Thomas) lamented that the Court had for decades “wrongly . . . rejected a purely originalist approach to our Eighth Amendment. . . .”

But even if the “national consensus/evolving standards of decency” standard is here to stay, I believe that it can be rendered more objective, and therefore less manipulable, by simply insisting on a high standard of proof.   I just don't see how the Court can say, conscientiously, that there is a national consensus condemning a certain punishment if four of the nine Justices are not persuaded of its existence?  If the existence of such a national consensus is something on which reasonable people can disagree, then a national consensus by definition does not exist.  Assuming, then, that the existence of a national consensus condemning a punishment empowers the court to invalidate a contrary legislative enactment as cruel and unusual, the Court should at least insist on irrefutable evidence of “overwhelming opposition to [the] challenged practice, generally over a long period of time."   Roper v. Simmons, 443 U.S. at ___ (Scalia, J., dissenting).

Only a “national consensus” that is demonstrably broad, and deep, and certain can justify the Court in invalidating, for example, laws recently passed by six states and by Congress and in halting on-going debate on the issue in several other legislatures (indeed, the very existence of recent state and federal laws authorizing the challenged punishment is powerful evidence against any such broad, deep, and certain national consensus condemning it).  Setting a strict evidentiary standard for proving a national consensus would also help to safeguard against the Justices mistaking, either subconsciously or consciously, their own standards of decency for those of the Nation as a whole.  I agree, obviously, with Steve that the people who framed and ratified the Eighth and Fourteenth Amendments likely did not mean to delegate to the justices the authority to impose their own personal views as to what punishments are or are not constitutional.

And this brings me, once again, to what I think is the most troubling feature of the Kennedy decision and the Court’s Eighth Amendment jurisprudence more generally:  The Court’s claimed authority to determine the scope of the Eighth Amendment’s protection on the basis of its “own independent judgment” on the “question of the acceptability of the death penalty under the Eighth Amendment.”  The Kennedy majority leaves little doubt that its independent judgment on the constitutionality of a particular punishment would be controlling even in the absence of a supporting national consensus, which is entitled only “to great weight.”  And theKennedy majority makes equally clear that its “own independent judgment” is, in turn, based upon its own independent judgments about “evolving standards of decency,” “the dignity of the person,” “respect for the individual,” and even the competing public policy considerations weighing on either side of the issue.

Thus, it appears that a working majority of the Court has now expressly adopted as Eighth Amendment doctrine the “constitutional vision of human dignity” approach articulated by Justice Brennan in a famous 1985 speech at Georgetown University, a speech devoted largely to deriding originalism.  It was in obedience to that constitutional vision that Justice Brennan concluded that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendment.”  He consistently cast his vote that way too, despite his cheerful acknowledgement that the national consensus was against him; he thought it entirely proper for the Court to “embody a community striving for human dignity for all, although perhaps not yet arrived.”  The Kennedy case, I believe, moves the Court a long way toward the ultimate fulfillment of Justice Brennan’s unabashedly activist vision of the Court’s role in this area.

For my part, I have yet to hear a satisfactory answer to Justice Scalia’s question in his dissent in Roper:  “By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?”