Three of last term’s criminal cases dealt with mandatory minimum sentencing statutes, as do two of the new term’s.  The frequency with which these cases reach the Supreme Court underscores how ubiquitous mandatory minimums have become in federal criminal practice — a truly unfortunate state of affairs, given how clumsily these statutes are drafted and how badly they depart from sound sentencing policy.  In any event, an interesting question lurking in the background of many of these cases is whether the rule of lenity should be applied in the same manner as it would be in a case involving a conventional criminal statute.

The rule of lenity indicates that ambiguous criminal statutes should be interpreted in favor of the defendant.  As I suggested in my previous post, the Court does not seem especially consistent in its application of lenity and often adopts the government’s interpretation of statutes that strike me as clearly ambiguous (if that is not an oxymoron).  A good example from last term is United States v. Hayes, 129 S. Ct. 1079 (2009).  I agree with the conclusion of Chief Justice Roberts’s dissenting opinion: “This is a textbook case for application of the rule of lenity.”

In comparison with other criminal statutes, I have not detected any difference in the Court’s application of lenity to mandatory minimums.  Last term, though, Justice Breyer offered an interesting argument that the rule of lenity has “special force in the context of mandatory minimum provisions.” 

The argument appeared in Breyer’s dissenting opinion in Dean v. United States, 129 S. Ct. 1849 (2009).  The gist of his position is that an overly aggressive application of lenity is less harmful in the mandatory minimum context than elsewhere.  Here is the argument:

[A]n interpretation that errs on the side of exclusion (an interpretive error on the side of leniency) still permits the sentencing judge to impose a sentence similar to, perhaps close to, the statutory sentence even if that sentence (because of the court’s interpretation of the statute) is not legislatively required. . . .

On the other hand, an interpretation [of the statute at issue in Dean] that errs on the side of inclusion requires imposing 10 years of additional imprisonment on individuals whom Congress would not have intended to punish so harshly. . . [S]uch an interpretation, by erroneously taking discretion away from the sentencing judge, would ensure results that depart dramatically from those Congress would have intended.

Breyer’s point seems to me a good one.  And, although it appears in a dissent, the argument was not addressed, much less rejected, by the majority.  This should, in other words, be a viable argument for advocates to advance in other mandatory minimum cases.

Earlier posts in this series:

• Do the Justices Play Nicely Together?
• Ambiguity Is Ambiguous

But what explains his opinions in every abortion-related case that has come to the court since Scalia became a justice in 1986 is not his Catholicism but his “originalist” interpretation of the US Constitution, the author of a new biography of Scalia said Monday.

Speaking at an “On the Issues” forum at Marquette Law School, Joan Biskupic told host Mike Gousha that Scalia has “parallel passions,” Catholicism and the law.

”You just cannot forget that he’s so darned conservative on the Constitution, independent of his Catholicism,“ Biskupic said. Scalia simply does not see anything in the text of the Constitution that supports giving a woman a right to have an abortion.

Biskupic said she found in researching Scalia’s life that his views on the Constitution have been consistent for all his adult life. People she talked to from each stage of his life described him as an originalist.

Biskupic described Scalia as a “many-layered” person.

She said he is charming, gracious, tough, bullying, arrogant, a lot of fun, and prickly, at different times. She quoted Justice Ruth Bader Ginsburg saying, “Sometimes I’d like to strangle Nino, but I love him.” Ginsburg and Scalia are philosophical opposites on many legal matters, but are close personal friends. On the other hand, Biskupic said, as much as Scalia and Justice Clarence Thomas are close on the court, they are not close socially because, in the words of Thomas, Thomas likes to go home and watch college football while Scalia likes to go home and listen to opera.

Biskupic interviewed Scalia on the record a dozen times for her book, even after he initially said he wouldn’t agree to talk to her. He changed his mind after she saw him at a social event and began describing what she had found during visits to Trenton, N.J., where Scalia was born.

Biskupic, who covers the Supreme Court for USA Today, said that, at 73, Scalia is at the apex of his career because his influence has grown and he can attract support from other justices, including Chief Justice John Roberts and Justice Samuel Alito Jr., to put together majorities in some cases. In some prior periods, when his views were in a clear minority, Scalia found being on the court so frustrating that he considered resigning, she said.

Scalia is “an amazing stylist” when it comes to his written opinions, she said, which is one reason his opinions are so widely read. “He’s so clever, so engaging in his writing,” she said.

Biskupic noted a little-known Milwaukee touch to Scalia’s life – he spent a summer as a clerk at Foley and Lardner between his second and third years of Harvard Law School. But he did not want to come back to Milwaukee to practice after he graduated.

Biskupic’s book, “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia,” was published by Sarah Crichton Books. Biskupic received a bachelor’s degree from Marquette and covered the Supreme Court for the Washington Post before joining USA Today. She previously authored a biography of Justice Sandra Day O’Connor.

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.

Stirring prose, no?  One would hardly guess that two years of a man’s life were riding on this characterization of an obscure grammatical norm.  Whatever else might be said for or against textualism, it does lead to opinions in which there is sometimes a disconcerting disconnect between the Court’s dry rhetoric and the human realities of crime and punishment.

In keeping with the Court’s current textualism, comparatively little attention is paid in the six opinions to legislative history, which is either ignored altogether or wheeled out as an apparent afterthought.

Of course, even textualists like Scalia acknowledge that texts are sometimes ambiguous.  In such circumstances, rather than resort to legislative history or policy considerations, textualists will look to the traditional canons of statutory construction.  One of these is the rule of lenity, which indicates that ambiguous criminal statutes should be interpreted in favor of the defendant. 

For instance, in the previous term, the Court (through a plurality opinion authored by Scalia) invoked the rule of lenity as a basis to interpret the federal money-laundering statute narrowly.  (I posted on the case, United States v. Santos, 128 S. Ct. 2020 (2008), here.) 

But the rule of lenity did not fare so well last term.  In its pro-government decisions, the Court’s majorities summarily rejected defendants’ (and dissenters’) arguments that statutes were ambiguous, while the authors of its pro-defendant decisions apparently felt it unnecessary to invoke lenity.  This pattern is odd, for each case featured colorable textual arguments on both sides — this would seem good prima facie evidence of ambiguity.  However, as the Court explained in Dean v. United States, 129 S. Ct. 1849, 1856 (2009):

The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.  To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.

One wonders where exactly the line is between simple ambiguity and “grievous ambiguity.”  The Court’s opinions provide no clue.  Simply put, the ambiguity standard itself suffers from ambiguity.  This is, of course, in considerable tension with the whole textualist project, which aimed to bring greater objectivity and determinacy to statutory interpretation than could be provided by intentionalism.

“That’s the way to go,” said Feingold, who has been highly critical of the long confinement, without trial, of the suspects at the military prison in Guantanamo Bay, Cuba.

At the same time, US Attorney General Eric Holder Jr. announced that several other suspected terrorists will be tried in military courts. That group includes Ad Al-Rahim al-Nashiri, who allegedly planned another major attack, the bombing of the Navy destroyer Cole in 2000 in Yemen.

The decisions to go the two different routes in the cases will provide an interesting opportunity to compare civil and military handling of cases of this kind, Feingold told Mike Gousha, who moderated the session and who is a distinguished fellow in law and public policy at the Law School.

Feingold said bringing the Sept. 11 suspects, including Khalid Shaikh Muhammed, who has claimed he masterminded the attacks, into civil courts and allowing the justice system to proceed to a verdict on their cases is the appropriate course, said Feingold, a member of the Senate’s Judiciary Committee. “This advances not only our legal system, but our credibility in the world,” he said.

Feingold said that he is an opponent of the death penalty, but, “If there is a place where the death penalty should be administered, it is probably this case.” The bombings of the World Trade Center and the Pentagon and lethal crash of a commercial flight in Pennsylvania killed almost 3,000 people.

Feingold praised President Barack Obama for the way he is handling decisions about the future of military involvement in Afghanistan. Feingold said Obama was right to take his time and to consider all options, including a plan for phased withdrawal that Feingold has advocated. Several months ago, Feingold became the first senator to back such a plan. But he said Obama appears to be taking the possibility seriously.

“Why is it we are continuing this huge land war in Afghanistan?” he asked. “It doesn’t add up.” He said al-Qaeda has moved its bases out of Afghanistan and he does not think an end to American military involvement would mean a return of al-Qaeda power in the country.

Addressing other subjects, Feingold said:

• He hopes a health care plan can be passed by Congress by the end of January, but it is “impossible” that action will be completed this year. He emphasized his support for a “public option” in a health care plan, a system in which a government-run plan would provide insurance to some people. He said, “It would be very hard for me” to support a bill that did not include such an option.
• If Chief Justice John Roberts comes down strongly in favor of overturning a 1990 decision (Austin v. Michigan Chamber of Commerce), “it will be one of the greatest lawless acts by a chief justice in the past 100 years.” A decision is expected soon in a case (Citizens United v. Federal Election Commission) that has become a broad review by the court of federal election laws, including the Austin decision, in which the court ruled 6-3 that it was constitutional to prevent corporations from spending their own money on political campaigns. Feingold said that during confirmation hearings in 2005, Roberts said he would be an umpire calling balls and strikes and would not make law himself. Feingold voted to confirm Roberts, drawing the ire of many liberals. Asked after his talk whether he would regret supporting Roberts if Roberts votes to overturn Austin, Feingold said such a step might give him “a moment of significant regret.” But he said that would depend not only how Roberts votes, but what he writes in support of his vote.
• A two-year program of tax credits to companies who create jobs or increase employees’ hours could create several million jobs and help the economy nationwide. Feingold said he saw a major part of his role in dealing with economic issues as advocating for such a plan.
• Immigration reform is an urgent issue, but he does not see federal action coming until “maybe late next year.”
• Development of a five- to seven-year plan to bring down the federal deficit is both responsible and necessary for economic recovery. Feingold said the deficit “is almost an obsession of mine in the Senate,” and he sometimes finds himself voting with the most conservative Republicans because of the need to exercise more restraint on federal spending.

Feingold ducked commenting on one major Wisconsin issue. Asked whether he had a position on a proposed transfer of power over Milwaukee Public Schools to Milwaukee’s mayor, he said that it isn’t a federal issue and he isn’t going to get involved.

He also said he wasn’t making an endorsement in a potential Democratic primary for governor in 2010, but “I think the world of Tom” Barrett. Milwaukee’s mayor is expected to announce whether he is running for governor in the next several days. “I would have no hesitation supporting Mayor Barrett for any office he wants to run for, other than running against me in a primary,” Feingold said.

Feingold’s visit to the Law School was part of the “On the Issues” series led by Gousha. About 150 people attended the session.

It is commonly thought that the Court is bitterly divided along ideological lines.  In criminal cases, the stereotypical picture in recent terms would look like this: four conservative Justices (Scalia, Thomas, Roberts, and Alito) vote for the government, four liberal Justices (Stevens, Souter, Ginsburg, and Breyer) vote for the defendant, and Justice Kennedy in the middle gets to decide what the law is.  The picture is not an attractive one, suggesting that most of the Justices decide cases on a knee-jerk basis, without really listening either to the advocates or to their own colleagues.

How well does the stereotype actually reflect reality?  The answer depends on what type of criminal case you are talking about. 

The point is nicely illustrated by comparing two sets of cases from last term: the statutory interpretation cases and the investigation (that is, search, seizure, and interrogation) cases.  As I have categorized the cases, there were six in each set.  (The cases are listed at the end of this post.)

The statutory interpretation cases do not look anything like the stereotype.  In these cases, the Court was required to interpret either a substantive criminal statute or a statute containing a mandatory minimum sentence.  In these cases, the Court was remarkably cohesive.  Three of the six decisions were unanimous, while the other three were 7-2.  That makes a grand total of six dissenting votes in six cases.  Those six votes were cast by four different Justices from across the ideological spectrum.  None of the conservative Justices voted for the government in all six cases, while none of the liberal Justices voted for the defendant all the time.  Indeed, conservative Justices Scalia and Roberts voted for the defendant more often than not (four of six cases).

The investigation cases conform much more closely to the stereotype.  Four of the six cases were 5-4 decisions.  In all, the six cases produced eighteen dissenting votes, or three times as many as the statutory interpretation cases.  Moreover, the divisions generally (although not always) followed the stereotypical ideological pattern.  In three of the four 5-4 decisions, the conservatives and liberals each voted as block, with Justice Kennedy casting the tie-breaking vote (siding sometimes with the conservatives and sometimes with the liberals).  In the six investigation cases, the four conservative Justices collectively cast exactly one pro-defendant vote.  Put differently, given twenty-four opportunites to vote for a defendant, the conservatives did so only once.  (This compares with fourteen pro-defendant votes by conservative Justices in the statutory interpretation cases.)

Although I haven’t attempted to quantify this, my impression is that the Justices’ rhetoric in the investigation cases was also considerably more heated.  In particular, there seemed to be charges flying from both sides that the other side was not honestly and consistently adhering to the doctrine of stare decisis.  I did not observe similar attacks in any of the statutory interpretation cases.

What accounts for the discrepancy between the two sets of cases?  One possibility is the triumph of Justice Scalia’s preferred methodology in one area: that is, textualism in the statutory interpretation area.  I’ll have more to say about the Court’s textualism in another post, but the key point for now is this: the statutory interpretation cases play out as exercises in determining the meaning of particular words in particular statutory contexts.  There is very little discussion of broader public policy considerations that would cut across specific statutes.  As a result, there does not seem to be a lot at stake in the statutory interpretation cases, and there are few obvious implications for the Justices’ commitments to their various competing visions of the criminal justice system.  When cases are framed this way, it should not be surprising that the Justices find it relatively easy to reach common ground.

By contrast, textualism provides little clear guidance in the investigation cases (what exactly makes a search “unreasonable”?) and plays little discernible role in the Justices’ reasoning.  Indeed, what the investigation cases are really about is the scope of extratextual exclusionary rules, which do implicate core ideological commitments on both sides of the political aisle.  To liberals, the exclusionary rules (closely associated with the Warren Court and the broader civil rights revolution of that era) represent an important symbolic commitment to individual libery and equal rights in the face of a criminal justice system that has all too often wielded its power in discriminatory ways.  To conservatives, the exclusionary rules represent everything that was bad about the 1960’s: collective security sacrificed in the name of individual liberty, elites overriding the will of the “silent majority,” and so forth.  The Justices write about the exclusionary rules in terms of costs and benefits, but in truth the costs and benefits are unknown and probably unknowable.  Given the lack of any objective measure, the cost-benefit balancing necessarily becomes ideological . . . and the Justices don’t play so nicely together.

Statutory Interpretation Cases — includes cases on substantive criminal and mandatory minimum statutes, but excludes cases on the habeas corpus statute and other procedural laws

• U.S. v. Hayes, 129 S. Ct. 1079
• Dean v. U.S., 129 S. Ct. 1849
• Chambers v. U.S., 129 S. Ct. 687
• Abuelhawa v. U.S., 129 S. Ct. 2102
• Boyle v. U.S., 129 S. Ct. 2237
• Flores-Figueroa v. U.S., 129 S. Ct. 1886

Investigation Cases — includes Fourth Amendment and interrogation cases

•  Herring v. U.S., 129 S. Ct. 695
• Arizona v. Gant, 129 S. Ct. 1710
• Montejo v. Louisiana, 129 S. Ct. 2079
• Corley v. U.S., 129 S. Ct. 1558
• Arizona v. Johnson, 129 S. Ct. 781
• Kansas v. Ventris, 129 S. Ct. 1841 

Hat tip to 1L Timothy Shortess.

Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least).  In Gant, the Court limited the scope of “search incident to arrest.”  The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).

After the discussion of the case, Professor Blinka suggested that one ramification of Gant is that law enforcement will likely put more emphasis on gaining consent to search vehicles, since arrest will no longer yield such access. Professor Blinka also left the lunch group with one question: why did the Court decide that it was appropriate to narrow the “search incident to arrest” rule in 2009, especially since the broader search rule had been in effect for nearly thirty years?

Professor McChrystal addressed the Court’s decision in Safford Unified School District v. Redding, 557 U.S. ___ (2009), another Fourth Amendment case. Unlike Gant, which was based on a police search, this case addressed the ability of public school administrators to strip search a minor student for contraband. In reaching their decision that the school administrator’s strip-search violated the student’s Fourth Amendment protection, the eight-member majority found that the intrusive nature of the search did not adequately correspond with a “substantial chance” of finding contraband in her underwear.

The 8-to-1 decision in Redding left Justice Thomas alone in dissent. In his dissenting opinion, Justice Thomas argued that the doctrine of in loco parentis (literally meaning “in place of the parent,” allows a third party to act with same authority that a parent would have) should be applied to allow school administrators to search a student’s person without any Fourth Amendment concerns whatsoever. Under this approach, not only would a strip search be constitutional, but so would a more drastic search of a student’s body cavities.

In Professor McChrystal’s closing remarks, he cautioned future practitioners about a broader issue of privacy— that in an age of Google searches, clients might want to limit their names from public record.  A Google search for the plaintiff in Redding results in nearly four million hits. And while Ms. Redding’s ordeal at school occurred six years ago this month, her name will always be attached to the school’s invasion of her privacy. However, had her lawyer petitioned the court for a pseudonym for the minor plaintiff, something that most courts would be likely to grant under the circumstances, she might have maintained more of the privacy that she fought so hard to protect.

The last case, Crawford v. Metropolitan Government of Nashville, discussed by Professor Secunda, reviewed the anti-retaliation provision of Title VII. This provision protects employees suffering from adverse employment actions (such as a demotion, change in pay, or termination) when the employee “participates” or “opposes” an unlawful employment practice. At the heart of the matter in Crawford was what type of employee conduct constitutes “opposition” to an unlawful employment practice. The Court, reversing the Sixth Circuit Court of Appeals, held that reporting sexual harassment was not needed for protection under the “opposition” prong of the anti-retaliation provision. Furthermore, applying an ordinary definition of “opposition” the Court held that the “opposition” prong of Title VII protected an employee’s cooperation with an internal investigation of sexual harassment when an employee gave a “disapproving account” of a supervisor’s conduct.

Professor Secunda noted that while the unanimous decision is good for employees that seek retaliation protection, the Court may have better helped such workers by addressing employee protection under the more frequently used “participation” clause.

MU-ACS sincerely appreciates the faculty members and students who gave their time for the event. All students are welcome to join MU-ACS events.

Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.

In the controversy surrounding the chartering of the Bank of the United States, shortly after the Constitution was ratified, two of the Framers grappled with this dilemma.  The fact that they came to different conclusions continues to influence the debate over federal power today.   James Madison and Alexander Hamilton agreed that the delegated powers of the federal government should be interpreted broadly, but they differed in their view of whether the Constitution left any negative space for the federal government to expand beyond those powers expressly delegated to it.

Madison felt that the outer limits of federal government power were set by the understanding of the people at the time that the Constitution was ratified.  Those boundaries could not be expanded short of a constitutional amendment.  In contrast, Hamilton seems to have believed that these limits could be loosened or lifted through precipitous action by the federal government, explained and defended to the public, so long as the public demonstrated their approval of the new boundaries.  Hamilton’s conception of sovereignty allowed for the possibility that later generations of Americans might approve of a stronger national government than was originally envisioned, if they were persuaded that the extra authority was merited.

 Hamilton’s proposal to charter a national bank, and his adoption of the principle that even a federal government limited in its ends could employ tremendous discretion to achieve those ends, flowed naturally from his view that the Constitution left the federal government room to grow when acting in response to a truly national need.  Madison believed that the proposed bank was inconsistent with the original assumptions concerning the proper ends for which the newly created federal power would be used.  Madison thought it had been settled at the time of ratification that the federal government lacked the power to charter a national bank.  As a result, Madison came to align himself with the Ant-Federalists in opposition to the bank, and he would eventually articulate the States Rights political philosophy that continues to resonate with many Americans. 

In our constitutional system, the Supreme Court serves as the ultimate arbiter of whether an attempt by the federal government to expand into negative space is permitted.  In his recent book, Packing the Court, historian James MacGregor Burns paints a picture of a Supreme Court that has exercised this role in a reactionary fashion.  That the Court is able to play this role at all is solely the result of the bedrock doctrine of judicial review laid down in Marbury v. Madison.  Burns’ thesis is that this seminal case was wrongly decided.

Burns’ view of American history is sympathetic towards presidents who engage in the type of “transforming leadership” necessary to adapt the nation to new challenges and changing environments.  He criticizes the Supreme Court over the course of our nation’s history for often frustrating presidential attempts at transformative leadership through the illegitimate (in his eyes) vehicle of judicial review.  His book is an indictment of a Supreme Court that serves to further reactionary elements in our society rather than to respond to popular movements for reform (with the exception of the Warren Court, which Burns praises – inconsistently – for exercising judicial review in order to expand the scope of individual rights).

Although Burns views history through the traditional dichotomy of liberalism versus conservatism, we should recognize that the search for negative space is not an ideological issue.  The doctrine of the unitary executive, espoused by many of the leading lawyers in the Bush Administration as the justification for broad executive branch power after September 11, and still embraced by many leading conservative thinkers, is nothing if not a declaration that the Constitution leaves a great deal of negative space for the President to operate in in matters of national security.  In its cases dealing with the Guantanamo Bay detainees thus far, the Supreme Court has not foreclosed the possible existence of an expansive executive power so much as insisted that any unprecedented movement of executive power into spaces left open by the Constitution must come with the assent of congress.

Burns is correct that the Supreme Court has often used judicial review to deny attempts by the federal government to expand beyond the bounds that Madison thought were settled in 1789.  Early in the nineteenth century, Chief Justice John Marshall interpreted the federal sphere quite broadly.  However, later in the Court’s history the justices would rely upon doctrines of federalism to promote a political philosophy where state governments received first claim on the ability to expand into any negative spaces.  As our national economy grew larger and more intertwined, and as the role of the United States as a global superpower required a stronger federal hand in dealing with foreign nations, it became more difficult to argue that state governments could successfully occupy all of these open spaces.  The Great Depression, and two Wolrd Wars, forced the Court to recognize this reality.

In more recent years, the Supreme Court has relied upon theories of interpretation, most notably textualism, as the vehicle for denying the federal government the ability to expand its role beyond delegated bounds.  These theories have the benefit of applying without regard to whether state governments are capable of meeting the same demands that the federal government is seeking to satisfy, and therefore these theories have been more successful than federalism as a means of policing the expansion of the federal sphere in the modern economy.  However, the subjective way in which interpretive theory is inevitably applied has become apparent to all observers of the Court, with the consequence that the Supreme Court’s use of textualism has only served to increase public awareness of the Court’s growing institutional power and also of the ideology of its members.  Persons across the ideological spectrum share a discomfort with these developments.

There are early hints that persons seeking to deny the federal government the negative space in which to grow will next turn to moral philosophy, such as the theory of subsidiarity in the Catholic faith, as a vehicle for policing the federal government.  Whether or not these early efforts will mature into a coherent mode of constitutional interpretation remains to be seen.  If this effort fails, there will doubtless be other arguments advanced by those who seek to deny the existence of negative space in our Constitution.

What is undeniable is that the Constitution of 1789 was not written for a United States that had a complex and integrated national economy and that was a global superpower.  As the President and the Congress seek to navigate in such a world (and indeed, as the general public demands that they do so), some people will see only chaos and a lack of legitimate authority.  Other people will see an attempt to create something out of open spaces.

To call this clause of the Constitution “overlooked” is an understatement.  The authors of the Federalist Papers spent little or no time discussing the meaning of this clause.  The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning.  This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government.  What does the word “republican” mean?   It certainly does not refer to a specific political party.  Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy.  This interpretation is incorrect.  While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California.  These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government.  But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose?  Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy.

Recall that, prior to 1789, national sovereignty had always– with few exceptions– been lodged in either a monarchy or an aristocracy.  It was a novel idea to declare in 1776 that sovereignty belonged in the hands of the people.  Never before in human history had a nation of the size of the United States declared its intention to recognize its entire people as the ultimate sovereigns.  However, after the Articles of Confederation were adopted following the Declaration of Independence, the national economy was reduced to a shambles and our young country’s national security was questionable.  By 1789 it was natural to fear that the population in some states might eventually backslide and seek a return to a monarchy as a way of restoring public confidence and preserving order.

What Article IV does, then, is to deny to the people of the states the sovereign power to choose monarchy as a form of government.  This clause forever circumscribes the freedom of the people of a state to choose the way in which they govern themselves.  The denial of state power in this regard is necessary, because leaving the residents of a particular state with the absolute freedom to choose any form of state government would be an infringement upon the sovereignty of the people of the nation as a whole.

In fact, by stating that the federal government will “guarantee” a republican form of government, the Constitution makes it clear that the federal government is granted the power to enforce the prohibition on monarchy by force of arms if necessary.  Article IV makes it clear, even more explicitly than the Supremacy Clause in Article VI does, that the sovereign power of the people as a whole, as expressed through the federal government, is supreme over the sovereignty of individual states.   

If one state were to institute a monarchy, it would destabilize the entire Union of states.  In 1789, monarchies were viewed as inherently militaristic.  Monarchies place the decision of whether to resort to force within the hands of one single individual, where it is not subject to any checks or balances.  For a king, an increase in personal power and an expanded border provide mutually reinforcing temptations for invading your neighbors.

If the residents of one state were to adopt a monarchy as their form of government, neighboring states would feel threatened.  Monarchies require standing armies to maintain the king’s authority, and in order to redress an imbalance in power neighboring states would be forced to follow suit.  An alliance between two state monarchies would inspire neighboring republican states to enter into mutual defense pacts.  Imagine a United States with fences and checkpoints at the borders between the states.

The best interests of the nation as a whole require the residents of each state to cede away a portion of their political sovereignty to the nation: the ability to choose any form of state government that they desire.

This has important implications.  It implies that Lincoln was correct when he declared that the southern states had no right to secede from the Union.  While the text of the Constitution is silent on the right of secession, Article IV is an example of an overall constitutional structure that denies state residents the power to exercise political sovereignty within their own borders in a way that threatens national unity as a whole.  The denial of an absolute state power to secede is no greater a restriction on state sovereignty than the denial of an absolute state power to adopt a monarchy.

Some scholars have argued that Lincoln had to reinterpret the Constitution in order to impose a federal government of all the people that was supreme over the states.  In actuality, Lincoln was merely being faithful to the Constitution’s original design.

This understanding of Article IV Section 4 also implies that the Supreme Court was correct, in U.S. Term Limits v. Thornton, when it ruled that it was unconstitutional for states to amend their constitutions in order to impose term limits on their residents elected to federal office.  The Supreme Court’s majority opinion in that case relies upon a tortured interpretation of the various qualifications clauses of the Constitution, and the majority opinion raises Article IV Section 4 just long enough to dismiss the clause as irrelevant.  However, in the end the Court gets the basic point right by holding that state constitutions cannot impose term limits for federal office.

In his dissent in that case, Justice Thomas asserts that the Constitution’s authority depends on “the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.”  Had the majority not overlooked Article IV Section 4, the majority opinion would have had a greater textual basis to rebuke Justice Thomas.  Contrary to Justice Thomas’ assertion, the Constitution does take away from state residents the absolute power to control their own form of state government in cases where the national political structure is implicated.  The sovereign power to make decisions affecting the political structure of the nation as a whole rests with the people of the nation as a whole, not with the people of one state.

The text of the U.S. Constitution contains several clear statements that prohibit the states from frustrating the economic unity of the nation.  Economic protectionism is clearly precluded by the commerce clause, the privileges and immunities clause, and the full faith and credit clause (note that the latter two are also located within Article IV).  The fact that the text of the Constitution is far less clear about the predominance of federal interests when it comes to political unity has been the source of great debate and conflict during our nation’s history.

The debate between centralized power (sovereignty with a federal locus) and decentralized power (sovereignty with a state locus) goes back to the Federalist debate with the Anti-Federalists.  Even Madison and Hamilton themselves possessed contrary views on the matter (Madison generally favored decentralization while Hamilton strongly favored centralized government).  Commenting on the internal inconsistencies within the Federalist Papers on this topic, and the text’s sudden lurches between advocating a strong federal government at one point and then arguing in favor of state power moments later, some scholars have accused the Federalist Papers of reading as if its author was a paranoid schizophrenic.

Is it any wonder, then, that our nation’s history reflects this unresolved attitude toward who holds ultimate sovereignty?  The primacy of the federal political power over state sovereignty has been advanced by the jurisprudence of Justice John Marshall, the Civil War policies of Abraham Lincoln, and the New Deal legislation of Franklin Roosevelt.  The absolute sovereign power of the states to make political choices within their borders has been advanced by Jefferson and Madison in the Kentucky and Virginia Resolutions, by the secessionists during the Civil War, and by the leaders of the States Rights movement in the Twentieth Century.

Article IV Section 4 should remind us that under our Constitution the sovereignty of the people is a national sovereignty.  No state government, and no individual state population, has the power to take actions that threaten the political unity of the United States.  The federal government is superior to the states because it is only through a federal government that a national people can exercise their sovereignty.

No one denies that the Constitution forces the states into an economic union, even when they might prefer state protectionism.  Nonetheless, to this very day, many people still argue in favor of an absolute state sovereignty to decide political matters within their own borders.  By consistently overlooking the “Republican form of government” clause, we obscure the fact that the constitutional text imposes a political union on the states in a way that necessarily places a limit on individual state sovereignty.  By rescuing Article IV Section 4 from obscurity, we can resolve the debate over federal supremacy once and for all.

I knew very little about the organization before agreeing to do the run, and in my post-race googling I discovered that Justiceworks is a co-sponsor (along with the Portage County Bar Association and the University of Wisconsin-Stevens Point) of an upcoming symposium entitled Judicial Elections:  Navigating the Collision Course (note to lawyers: 7 CLE credits approved).  The conference will take place on September 17, 2009, and the lineup of presenters is impressive, including Bert Brandenburg, Executive Director of the national Justice at Stake Campaign; Thomas J. Basting, Sr., who served as President of the Wisconsin State Bar Association in 2007-08; and Wisconsin Supreme Court Justice Shirley Abrahamson.

The conference brochure promises that the program will “raise awareness about the significant issues confronting the State of Wisconsin in its judicial elections,” noting that

Over the past several years, the Wisconsin Supreme Court elections and other state judicial elections have depicted the concerns this conference intends to address, the battle between the First Amendment of the Constitution and free speech versus concerns of judicial independence and an individual’s right to due process.

The presentations look really interesting; for instance, Brady Williamson will give discuss recent US Supreme Court decisions including the June decision in Caperton v. A.T. Massey Coal Co., Inc., in which a split court held that a state supreme court justice’s failure to recuse himself from a case in which the defendant was a corporation, the board chairman and principal officer of which was a primary contributor to the justice’s campaign.  Other presentations will include a discussion of  ”The Role and Responsibility of the Media” with respect to judicial elections, and a panel discussion entitled “Approaches to Change–Caperton and Beyond.”

The time is ripe for discussion of Wisconsin’s judicial elections, particularly in light of Caperton, the full implications of which are not yet clear. As you probably know, perceived failings in Wisconsin’s system of judicial elections led the Wisconsin Supreme Court to appoint a Commission on Judicial Elections and Ethics in 1997.  Unfortunately, that Commission’s final report remains useful background reading for the upcoming symposium, because the problems discussed there persist, such as the tensions between maintaining  a sense of judicial impartiality and independence while also respecting the First Amendment.

First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court.  As a proportion of the Court’s membership, Catholics on the Court currently exceed their proportionate representation in the general public by a significant amount.  This is an astonishing historical fact, although its significance is not self-evident.

Second, Frank Colucci’s book, Justice Kennedy’s Jurisprudence, was recently reviewed  in the Wall Street Journal by Northwestern University Law School Professor John McGinnis.  Apparently, Mr. Colucci does not adhere to the conventional wisdom that Justice Kennedy is an unpredictable jurist whose primary concerns are the aggrandizement of the Supreme Court and the divination of narrow, fact-based holdings.  Instead, and somewhat unexpectedly, Corlucci argues that Justice Kennedy’s approach to the interpretation of the Constitution is best understood as seeking to advance a moral imperative.

Justice Kennedy’s objective, according to Corlucci, is to vindicate and preserve an ever increasing share of individual liberty within our broader society.  Here is the key portion of Professor McGinnis’ review:

Looking for the sources of Justice Kennedy’s moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae.  In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit ‘irreparable corruption’ – a phrase that a secular judge might not have used.  (Justice Kennedy is an observant Catholic).  It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be – because of his emphasis on individual rights – the decisive vote for preserving the abortion status quo.

It is intriguing to consider whether there is, in fact, a demonstrable connection between Catholic social thought and Justice Kennedy’s interpretation of an evolving liberty interest guaranteed by the Constitution.

Should this matter?  Few people would argue that all religiously observant  judges are necessarily intent on imposing a theocratic rule of law (turning the gavel into a cross, as it were).  Moreover, it is neither possible nor advisable to seek to eliminate all religiously-derived conceptions of morality from the judicial decision making process.  However, the intersection of the Catholic faith and the judicial function remains troublesome for some, perhaps because it takes place out of the sight of the public and within the mind of the judge. 

A third recent event raises this same issue.  There has been a great deal of consternation in the blogosphere over Professor Alan Dershowitz’s intemperate attack on Justice Antonin Scalia’s dissent from the Supreme Court’s August 17 order in the case of In re Troy Anthony Davis. 

In that case, Justice Scalia (along with Justice Thomas) dissented from the Court’s order directing the district court to consider whether or not evidence unavailable at the time of trial now indicated that a convicted felon, presently on death row, was in fact innocent.  Justice Scalia disagreed with the Court’s order, stating in his dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” 

Professor Dershowitz charged Justice Scalia with hypocrisy, claiming that Justice Scalia was willing to impose a constitutional rule of habeas corpus that was in conflict with Catholic teaching.  For Dershowitz, it is self-evident that it is immoral to execute a man who you know is innocent.  Apparently it is similarly self-evident that Catholic moral teaching reaches the same conclusion.

If Professor Dershowitz wanted to start a heated debate on the topic of Catholicism and the Supreme Court, he succeeded.  Some of the more interesting responses to Professor Dershowitz include this post by Professor Richard Garnett and this post by Professor Robert Vischer.

 In Professor Dershowitz’s defense, Justice Scalia raised the issue of his Catholic faith first.  In a 2002 article in First Things entitled “God’s Justice and Ours,”  Justice Scalia admitted that he finds it necessary to reassure himself that his interpretation of the Constitution does not contravene his Catholic faith.  In fact, he goes so far as to assert that, if he ever felt that the Constitution mandated a rule that contravened his faith, he would feel morally bound to resign from the Supreme Court rather than to vote to uphold that rule.

Fortunately for Justice Scalia, he has concluded that there is no conflict between Catholic teaching on the death penalty and the manner in which the United States Constitution permits the death penalty to be imposed.  This is because, as Justice Scalia explains, his interpretation of Catholic teaching on this point differs somewhat from the position of Church authorities:

I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. . . . So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign.  

Professor Dershowitz charges that in dissenting from the case of Troy Anthony Davis, on the grounds that the Constitution does not prohibit the execution of a factually innocent man, Justice Scalia is adopting a misguided reading of Catholic theology.  Some will be tempted to charge Justice Kennedy with a similar offense.

Justice Kennedy and Justice Scalia present the positive and the negative aspects of the same photographic image.  It is the picture of a judge trying to reconcile the role of his faith with his responsibilities on the Supreme Court.  We have long recognized that Justice Kennedy and Justice Scalia have very different conceptions about the proper role of a judge under our Constitution.  It is possible that their differing conception about what it means to be Catholic has had an equally profound influence on the divergence of their judicial philosophies.   

Catholics live their faith in a variety of ways, so it is not surprising that this variety of beliefs can be observed on a Supreme Court with six Catholic members.  Religious beliefs influence all of us in diverse ways, as do ideological beliefs, affinities for cultural traditions, and prejudices or stereotypes.  Each person’s understanding of how the world works (or should work) is comprised of a unique stew of multiple predispositions.

However, what happens when these predispositions come into conflict?  In particular, how do we react when our interpretation of the Constitution, as the embodiment of a fervently held political philosophy, comes into conflict with our understanding of the moral teachings of our faith?   Our sacred and secular belief systems must either align or come into conflict, and Supreme Court Justices are no different than the rest of us in this regard.       

Human nature being what it is, we would prefer to avoid the dissonance that occurs within our psyche when the secular and the sacred conflict.  Therefore, our natural temptation will be to engage in self-delusion.  This occurs when we force the interpretation of either our faith or our secular Constitution in a particular direction in order to bring the two of them into alignment.  Justice Kennedy wants to see his faith’s promotion of human dignity reflected in the Constitution.  Justice Scalia wants to reassure himself that his reading of the Constitution does not countenance the exercise of immoral authority.  Not surprisingly, both men see what they want to see.

 All of us begin the act of interpretation knowing what it is that we hope to find.  Is it any wonder that we often shade our reading of the text and precedent in order to arrive at our hoped for destination?  When our mind shades the text in this fashion, we risk doing violence to the meaning of the words we interpret.  The alternative, however, would be to do violence to our strongly held self-image.  Our subconscious mind will not allow this to occur. 

The only solution for a judge placed in this position is to exercise her capacity for self-awareness.  This means pausing before she rules.  During that pause she should self-consciously reflect on her premises, her life experiences, and even her religious beliefs, in order to assure herself that her interpretation of the text is driven by logic and precedent and not by an unconscious desire to rationalize competing belief systems.

Sound familiar?  This is the wisdom imparted by our newest Catholic Justice in her “Wise Latina” speech.

Depending on where you look, you can find members of the legal community making different predictions of where the courts will land on Iqbal.  Some are dismissing the significance of the case, and others are declaring it a major obstacle for plaintiffs and a coup for corporate defense.

The federal courts have begun the task of interpreting Iqbal.  For instance, a 12(b)(6) motion to dismiss based on the Iqbal standard was successful in a lawsuit claiming that a school’s music program violated free exercise and establishment clause by choosing songs that were religious in nature for students to perform.  And, Judge Posner recently wrote an opinion that distinguished the case at hand from Iqbal and suggested that didn’t govern, even though it has been believed to apply to all federal civil cases.

It appears Congress is ready to jump into the fray as well.  Senator Arlen Specter introduced the Notice Pleading Restoration Act of 2009 in late July, which, in its current state, would reinstate the Conley standard.  While at first glance, the proposed legislation does not seem to present a separation of powers problem, it remains to be seen whether or not this bill has legs enough to make it out of committee.

Even if we do not end up with a pleading standard radically different from that established in Conley, we should get used to hearing the name “Iqbal” as part of our common legal vocabulary for a while.  In the first two months after the Iqbal decision was handed down, the case was cited 500 times in federal courts.  It seems a FRCP 12(b)(6) motion to dismiss for “failure to state a claim upon which relief will be granted” citing Iqbal will be on the checklist for the defense counsel of every federal civil case from here on out.

While this appears to be the first post on Marquette Law School’s Faculty Blog discussing the implications of Iqbal and the pleading standard, it is the topic of a healthy discussion in the legal community right now.  My interest in Ashcroft v. Iqbal grew out of my final paper assignment for my Law and Rhetoric course in the first summer session and it has been fun to watch the analysis and law begin to develop over the past few weeks.  I’ve simplified the case and issues for the sake of presenting in the blog format, but welcome any comments or discussion in the forum below or offline by email  if folks are interested.

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.  An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties.  The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal. 

Even on its own terms, the Umpire metaphor does not seem to accord with human behavior.  Baseball umpires are notorious for having different strike zones, and for applying strike zones inconsistently, in ways that affect the outcome of games.  There have been persistent calls for Major League Baseball to use machines that would call balls and strikes without error, much like the League adopted instant replay to correct mistaken calls by the officials.  If umpires are not perfect, is it fair to demand perfection from judges.   

 In fact, it is a good thing that judges do not all act alike, as if they were machines, and that our system of justice provides room for individualized discretion.  It is in our discretion that we express our humanity.  Judge Jose Cabranes (the “good Hispanic” on the Second Circuit, according to the conservative critique of the Ricci firefighters case) defended the individuality of the judging process in his 1998 book Fear of Judging.  He was writing in the context of the federal Sentencing Guidelines, and their attempt to limit the sentencing discretion of judges:

  “[W]e should start with the simple recognition that the Sentencing Guidelines are based on a fundamental misconception about the administration of justice: the belief that just outcomes can be defined by a comprehensive code applicable in all circumstances, a code that yields a quantitative measure of justice more easily generated by a computer than a human being.  We must recognize, in other words, that no system of formal rules can fully capture our intuitions about what justice requires.  The federal Sentencing Guidelines of today are based on a fear of judging: they attempt to repress the exercise of informed discretion by judges.  Instead, in the typical case, the judge is supposed to perform an automaton’s function by mechanistically applying stark formulae set by a distant administrator.  The unhappy consequences of such a system are borne by all participants in the sentencing process, including the judges themselves.  As one federal judge has put it, the Guidelines ‘tend to deaden the sense that a judge must treat each defendant as a unique human being . . . . [I]t is quite possible that we judges will cease to aspire to the highest traditions of humanity and personal responsibility that characterize our office.”  [p. 169]

 The Umpire metaphor should be rejected for the same reason: it is an attempt to appeal to the fear of judging.  The metaphor is designed to undermine any exercise of discretion by judges in the mind of the general public.  Most significantly, when a federal judge exercises their constitutional power to “say what the law is,” the general public will be primed to respond with resentment towards a judge who failed to act in accord with their expectations — despite the fact that these expectations were unrealistic in the first place.

 The Sotomayor hearings contained a second metaphor that was used to describe a Supreme Court Justice who is not objective.  The Wise Latina is a judge who incorporates her life experiences into her rulings from the bench, and who views the law through the lens of her own prejudices and beliefs.  The metaphor of the Wise Latina was created by Republican Senators in order to represent someone who possesses racial or gender grievances, who holds an ethno-centric world view, and who will choose winners and losers in the courtroom in order to redress past grievances and advance that view.  It was put forth in order to provide a negative contrast to the Umpire metaphor.

 The Wise Latina metaphor is actually a more honest description of what judges do than the Umpire metaphor.  Life experiences do influence how judges view facts and precedent.  However, the Wise Latina metaphor tells us nothing about how a judge should use their life experiences to inform their judgment whilst avoiding the danger of individualized bias.  Judge Sotomayor’s only sin was in admitting that as a federal judge she possesses a range of discretion that many people fear, and that in the case of life tenure judges this discretion is subject only to self-policing.  During the confirmation hearings, Senators Sessions and Kyl tried to argue that the Wise Latina metaphor provided a basis for predicting that Judge Sotomayor would favor ethnic minorities and women in her rulings on the Supreme Court, but they never made the causal connection between their descriptive metaphor and her future propensities.

 Not surprisingly, in her testimony Judge Sotomayor chose to embrace a third metaphor — one that is distinct from either the Umpire or the Wise Latina.  In describing her approach to the law, she put forth a vision of a Supreme Court Justice that I will call the Cabinetmaker.  As Judge Sotomayor described the job, a Supreme Court Justice is like a craftsman (or craftswoman) who takes the raw materials on the workbench (the particular facts of the case and the relevant precedent) and carefully joins them together into an opinion that is solidly constructed as to both form and function.  In so doing, the Cabinetmaker stays focused on the individual task at hand, and on serving the immediate needs of his customer, rather than on advancing some personal agenda to revolutionize home furniture design.  The result is a piece of furniture that reflects the cabinetmaker’s influences, but that does not substitute the cabinetmaker’s own taste for the client’s desires.

There is much to admire in the Cabinetmaker metaphor.  It demands that Supreme Court opinions adhere to an internal formal logic, and that they conform to the facts as found by the lower court and to prior precedent.  This metaphor therefore provides a prescriptive guide to judging.  It holds judges to an objective set of rules and it evaluates the judge’s performance on the basis of how closely they follow those rules.  Personal bias cannot be eliminated, but personal bias is not likely to overcome the formal rules of logic or to force a syllogism to arrive at a particular result.  Judges are more like craftsmen, akin to a cabinetmaker who is highly regarded for the fine construction of his furniture.  Poor craftsmanship will be obvious to most objective observers (my students will no doubt recall my in-class description of Roe v. Wade as a “wobbly three-legged stool”).

 However, despite these advantages, the Cabinetmaker metaphor is likely to prove unappealing to judicial conservatives.  The Cabinetmaker metaphor accepts the status quo, and assumes that change in legal doctrine will be slow and incremental.  It treats all precedent equally.  It incorporates the doctrine of stare decisis and calls for judges to follow precedent in all but the rarest cases.  A cabinetmaker begins each day with the expectation that they will follow the same blueprint that they applied to the last cabinet.  They do not decide one day to stop making cabinets, and become violin makers.

 Originalism has a powerful hold on the minds of judicial conservatives because it is a theory that denies the legitimacy of non-originalist precedent.  Therefore, an originalist judge considers himself justified in refusing to adhere to precedent that he views as “wrongly decided.”  Before any prescriptive model of judging is acceptable to judicial conservatives, it must provide for a means of un-doing liberal precedent.  The judge as Cabinetmaker metaphor does not do this.  Therefore, judicial conservatives will embrace the Umpire metaphor and overlook its obvious defects.

 It would be folly to read too much into these three competing metaphors.  They do not arise from any sort of critical analysis.  The Umpire metaphor had its origin in a comment by Justice Roberts during his confirmation hearings.  The raw materials from which Senate Republicans constructed the Wise Latina metaphor came from the “stump speech” that Judge Sotomayor regularly delivered to various law schools.  The Cabinetmaker metaphor was chosen and emphasized by Judge Sotomayor in order to make her less threatening to moderate Republicans and therefore more likely to sail smoothly towards confirmation.

 None of these metaphors were put forward as a closely argued, carefully considered explication of a particular judicial philosophy.  Instead, they were used as simplistic tools to convey a particular message about what judges do to the general public.  During the course of the Sotomayor hearings, the media inflated the Umpire and the Wise Latina metaphors to the point where they seemed to represent the yin and the yang of theories of judicial process.  As a result, Judge Sotomayor’s Cabinetmaker metaphor came across as evasive.  By presenting a third alternative view of judging, the Cabinetmaker metaphor was perceived as an attempt to change the subject (which it was).   

 However, before we put these metaphors back onto the shelf, to be dusted off at the next confirmation hearing, we should pause to further examine the messages that these metaphors are sending to the general public.  Scientists who study the human brain tell us that metaphors have a powerful impact on the human mind.  This is because metaphors create the internal narrative that our mind uses to understand the exterior world.  Once our mind chooses to adopt a particular narrative, that narrative becomes one of the many “stories” that our brain applies to predict outcomes.

 The recent controversy over the arrest of Harvard professor Henry Louis Gates, Jr. is illustrative.  When we human beings hear the word “policeman,” our mind immediately applies an internal narrative that creates certain expectations of how a policeman should behave (catching criminals, helping victims, acting heroically).  When our brain receives information that a particular policeman has behaved contrary to our internal narrative (i.e., by behaving rudely towards a law abiding citizen), this creates a disconnect between the fact and the narrative that our mind tries to resolve.

 If the policeman narrative has a strong hold on our brain, then the contrary information will provoke an immediate negative emotion in our mind.   This is because this particular policeman did not behave in the way that our internal narrative tells us that a policeman is supposed to behave.  In order to avoid experiencing this negative emotion, our mind may reject the contrary information (the rude behavior didn’t happen) or, in instances where the original policeman narrative has only a weak hold on our brain, replace it with a different narrative (policemen are racists).  Scientists who study the brain tell us that this process occurs immediately, and without any conscious deliberation on our part.

Therefore, the metaphors put forth during the Sotomayor hearings will greatly influence the way in which the public understands how federal judges should behave.  If the public embraces the narrative of a federal judge as an Umpire, then it will expect judges to behave in a way consistent with that narrative.  Most significantly, the public will react negatively to a judge who does not behave in a way consistent with the expectations created by their internal narrative.  I assume that we would all agree that it is dangerous to generate public discontent with the federal judiciary for performing the very role envisioned for them by the Constitution.

 As academics, we try to explain what judges do in the courtroom on the basis of reasoned inquiry.  But our academic theories stand little chance of influencing public opinion if they run counter to the public’s chosen narrative of how judge’s should behave.  Law professors ignore the influence of metaphors at our own peril.

Here’s an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the Fourteenth Amendment: 

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well . . .

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court’s analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform — as I said, I’ve hesitant of prejudging and saying they will or won’t because that will be what the parties are going to be arguing in the litigation. But it is . . .

FEINGOLD: Well . . .

SOTOMAYOR: I’m sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court’s more recent jurisprudence in incorporation with respect to other amendments has taken — has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court’s decision how it looks at a new challenge to a state regulation.

“What is the test” is a question that she could and should answer. Her response is “well, there’ll be one” and the recent jurisprudence is “more recent.”

Here is another response to a Feingold question.

FEINGOLD:

…

So, I’d like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court’s decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It’s looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

Her understanding of the cases is that they were cases.

When Sarah Palin responded to questions by playing a game of Scrabble, folks wondered whether she knew what she was talking about. Here we assume – correctly, I suspect - that Judge Sotomayor is just taking the traditional evasion of Supreme Court nominees to a new level. When you have a 60 vote majority, it is how you play not to lose.

But does this vitiate the Senate’s “advise and consent” function? It may if we believe the hearings should be a vehicle through which it exercises that function. There is no way that anyone, based on these hearings, could know whether Judge Sotomayor is of Supreme Court or, for that matter, district court caliber. It’s an exaggeration, but only a bit of one, to say that, based only on the hearing, I don’t even know if I’d hire her as an associate.

Of course, her answers at the hearings are not all we know. She has a career to point to. She graduated from a top law school and worked as a prosecutor and at an excellent law firm She has functioned as a competent federal judge for many years.

Nor is it evident that hearings will lead to better consideration of a nominee. While all of the Senators’ questions are not incomprehensible or ill conceived, many are both. After all, hearings including interrogation of the nominee have not always been thought to be part of the confirmation process. Justice William O. Douglas, during his hearing in 1939, waited outside the hearing room and sent in a message asking if there were any questions. There weren’t. (There should have been.)

But this was during a time when people really did seem to believe that judging was a mechanical function and that the measure of a judge was pretty much limited to his objective qualifications. Justice Douglas, ironically, did more than most to step on that belief.

Given the fondness of the Congress (and the Senate in particular) for its prerogatives, I can imagine a desire for pushback. Professor Wasserman worries that it may take the form of impeachment when someone like Judge Sotomayor rules in a way that is inconsistent with what was said at the hearings. He says that such an effort is unlikely to get out of the House but that it would be an awful development. I agree.

The only real way for the Senate to pushback is to refuse to confirm someone who is insufficiently forthcoming at his or her hearing. But, in our current circumstance of relatively high political and legal division, its hard to imagine that either the Democrats or Republicans would place, depending on your view, institutional privilege or constitutional function, above a vote on the Court.

And that’s the real story behind this hearing. Quite apart from the affirmations to just “apply the law” or to embrace the lessons of one’s experience and in spite of the characterizations of Judge Sotomayor as a technician or an activist, everyone knows — or thinks they know — how she will vote on a variety of issues. Like Chief Justice Roberts and Justice Alito before her, that is why she was nominated. It is why she will be confirmed. Whether everyone was right will remain to be seen.

Cross posted at Shark and Shepherd.

But there is one up there as we speak from the Lehighton (Pa.) Time-News reporting my comment on the Supreme Court’s decision in Ricci v. DeStafano. I did issue some comments on Ricci through the Heartland Institute where I am a Policy Advisor.

But I didn’t say what was quoted in the article.

The quoted statement actually came from Chris Hage who is the President of the Chicago Lawyers’ Chapter of the Federalist Society of Law and Public Policy. I said this:

“Today’s decision in Ricci v. DeStefano makes clear that employers may not use fear of litigation to justify hiring decisions based on race. If fear of a disparate impact claim under Title VII would permit employers to abandon nondiscriminatory hiring methods whenever those methods failed to produce an ‘acceptable’ number of minority hires, then the distinction between disparate treatment claims and mandatory quotas would be blurry at best. To allow the fear of litigation to justify racially based hiring in order to ‘get the numbers right’ would undermine the principle of racial evenhandedness that both Title VII and the Fourteenth Amendment are intended to guarantee.”

I don’t know if they wanted Mr. Hage’s statement and attributed it to me or wanted my statement and took Mr. Hage. I am sure, in any event, that Professor Secunda probably disagrees with my real remarks as much as what I didn’t say. But accuracy — both here and in Lehighton — is important.

The case addressed whether the government may introduce a crime laboratory report (hearsay) against a defendant without calling as a witness the analyst who performed the test.  The Court held that such reports are manufactured expressly for use at trial against the defendant; hence, they constitute “testimonial hearsay” that cannot be introduced without the declarant (the lab analyst) on the witness stand, available for cross-examination. 

The dissent bewailed the expense and inconvenience wrought by this requirement, a critique seemingly blunted by the majority’s endorsement of “notice-and-demand” rules.  Such rules allow prosecutors to give pretrial notice of their intent to offer reports in lieu of expert testimony and require the defense to object absent the live, in-court testimony of the analyst.  Some states already have such rules and others, like Wisconsin, will probably soon expand their use.  (I spoke with state officials last week about some alternatives.)   Regardless, competent prosecutors will present such live testimony anyway, and even in the teeth of a defense offer to stipulate, where it is helps the jury decide facts, fills gaps in the story, or provides a “dog-and-pony show” that underscores the strength of the State’s case.  In sum, the Court’s holding hardly handcuffs the government.

And Melendez-Diaz itself may have a short-shelf life.  Only four days after publishing Melendez-Diaz, the Supreme Court granted certiorari in a Virginia case that revisits this very evidentiary scenario.  Since the recently departed David Souter provided the fifth vote for the majority, we will soon learn how justice-soon-to-be Sotomayor, a former prosecutor with a liberal bent, affects the balance.  (After reading last week’s lively exchanges about Sotomayor by my colleagues Ed Fallone and Rick Esenberg in the Milwaukee Journal Sentinel (June 28), I’ll hedge my bet, as wise Slovak men invariably do.)

Aside from the narrow hearsay issues, Melendez-Diaz speaks to several more fundamentally important concerns.  First, it evinces the Court’s continuing skepticism about expert testimony generally.  In explaining the defendant’s need to cross-examine the government’s analysts, the Court noted the “serious deficiencies” that plague forensic sciences, as tellingly set forth in a winter 2009 report by the National Academy of Sciences.  The problem is neither new nor confined to criminal cases.  Concerns in civil litigation about “junk science,” to use the sobriquet, led to the Daubert rule in the mid-1990s, which anointed federal judges as “gatekeepers” charged with ensuring that only “reliable” science and expertise be admitted at trial.  (We all know that history majors are ideally suited for this role.)   If Melendez-Diaz reveals the Court’s unease about how science is often bent, twisted, and distorted in the courtroom, it also signals intolerance for making this even easier through hearsay evidence.

And this leads directly to the second point.  By demanding that the government produce the analysts for trial, Melendez-Diaz faithfully embraces an older ideal of the trial as a literal face-to-face confrontation between the accused and accuser in a public courtroom.  It prefers the spoken word, extemporaneous exchanges through a lively Q&A, and assumes that demeanor yields valuable clues about what is believable and, as important, who is worthy of belief.  Here “character” looms large as divined in one’s appearance and deportment.  Reliability is a function of credibility.  The older-style trial judged people more than it “found” facts. 

In sum, Melendez-Diaz fits into a line of cases that recreates the world of the late eighteenth-century trial, a product of a different society and culture.  The hubris of the modern trial as a procedurally rigid, quasi-scientific search for “the” truth is a later development.  The gulf that separates the majority and dissenting opinion is one that spans the considerable changes that have occurred in American law, culture, and institutions since the early 1790s, and the limits to which that older-style trial can, and perhaps should, be adapted to present circumstances and values.

 What follows is a deconstruction of my own op ed piece.  The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric.  Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.     

 Believe in Your Argument: It is not necessary to have an angel for a client, but it helps.  The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker.  My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well.  If I do not believe my own argument, I will not succeed in convincing the reader.  

 Know Your Audience:  My language is directed towards the non-specialist, so I consciously avoided legal technicalities.  Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments.  Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.

 I also presume that a large segment of the public is already persuaded to either support or oppose the Sotomayor nomination.  This segment of the public is not likely to be swayed by my arguments.  Therefore, the tone and the specific arguments that I adopt are specifically designed to appeal to persuadable Republicans and/or wavering Democrats.  This leads to a focus on mainstream issues such as crime and away from “hot button” issues such as Affirmative Action.

 Establish Connection Between Reader and Subject Matter: Hispanics can be perceived as the “other” in our society, which immediately renders Hispanics as objects of suspicion or distrust in the media.  By opening with a Spanish phrase, I attempt to confront this perception by bringing it to the foreground.  However, I reveal that the Spanish phrase I invoke actually reflects a shared, non-threatening value (people should treat each other with common decency).  This invites the reader to focus on the commonalities between Hispanics and non-Hispanics, rather than on the differences.

 Maximize the Gender Gap:  Among my target audience, women are more likely to be open to persuasion given Judge Sotomayor’s position as the third woman nominated to the Supreme Court.  In my conversations with women about the nomination, I have noticed that the first subject that comes up is invariably the excellent qualifications of Judge Sotomayor.  Many women in the workplace feel that male co-workers ignore or minimize their qualifications, focusing on their gender rather than their talent.  These women will respond to arguments that Judge Sotomayor is being treated the same way.

 On the other hand, the “empathy” argument invoked against Judge Sotomayor plays on gender stereotypes.  Women are often portrayed in the media as nurturing and caring, and therefore not strong enough to protect society from threats such as violent crime.  At the same time, a fear of violent crime is often used as a rhetorical device to prevent wavering women voters from abandoning a political party’s preferred candidate (i.e., the Willie Horton example).

 By focusing on Judge Sotomayor’s “tough-on-crime” reputation, I anticipate and counter both the negative aspect of the “empathy” charge as well as a particular wedge issue of concern to many women.

 Appeal to the Reader’s Emotion: The piece makes a very clear and specific appeal to the emotions of the reader.  The words “shame” or shameless” are employed three times-twice in the opening paragraphs and again in the final paragraph.  The reader is asked to conclude that Judge Sotomayor is being subjected to unfair criticism, and to feel sympathy towards her.  

 Appeal to Authority: I do not expect the reader to believe my arguments based solely upon my own authority.  Therefore, I appeal to other sources of authority in order to support the point that Judge Sotomayor is a moderate judge.  I refer to objective reviewers of her record, and in fact there are many such objective reviews available on the internet (on SCOTUS Blog or from the Congressional Research Service).  I also consciously include a sentence that summarizes the results of a review of 100 opinions in which Judge Sotomayor participated involving race-based claims.  Used judiciously, numbers and statistics can impart an aura of objectivity to a piece of persuasive writing.  I also appeal to endorsements of Judge Sotomayor by national law enforcement organizations and by other appellate judges.        

 Do Not Dodge Your Opponent’s Best Argument: I do not find the “wise Latina” debate to be particularly interesting or significant.  However, given that those opposed to Judge Sotomayor’s nomination have made this the centerpiece of their campaign, it is necessary to raise and respond to this argument.  The most effective way to do this is to simply place her words back into the context from which they were severed.   I also try to turn the “empathy” criticism into a positive by invoking Judge Sotomayor’s empathy towards the victims of crime.  This signals to the reader that a judge’s empathy can benefit groups that are not defined along racial or gender lines, and that empathy can be a desirable attribute in a judge.

 Turn Your Opponents Rhetoric on Its Head:  The task of Judge Sotomayor’s opponents is to argue that she is an extremist and that the evidence supports this characterization of her record.  I argue that by opposing a true moderate, it is her opponents who are extreme.  I invite the reader to question the very ideological framework that conservative critics are using when they evaluate Judge Sotomayor.  If she is not acceptable to them, who is?

 Persuasive writing is a skill that is learned, and not a talent that comes naturally.  Go back and re-read the piece in light of this deconstruction.  By revealing the anatomy beneath my opinion piece, I hope that our students will understand why this is a skill worth developing.

Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading.  The counts were factually linked: Yeager’s alleged fraud was that he knowingly participated in making false statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well.  At trial, the jury acquitted Yeager of fraud, but hung on insider trading.  A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson.  In Yeager’s view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors.  If he did not know about the gap between what investors were told and the actual state of affairs, then the government’s insider trading theory would collapse.  In the government’s view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe.  The district court agreed with the government’s view, but the Fifth Circuit reversed.  The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury’s treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note. 

First, the Court limited its analysis to the purely legal question of whether a logical inconsistency between acquitting on some counts and hanging on others necessarily denies the acquittal of preclusive effect.  The Court thus declined the government’s invitation to reexamine the Fifth Circuit’s holding on what exactly the jury decided in its acquittal; the Court simply accepted as its starting premise that the jury acquitted Yeager because the government did not prove he knew the statements at issue were false.  “We decline,” as the majority opinion put it, “to engage in a fact-intensive analysis of the voluminous record, an undertaking unnecessary to resolution of the narrow legal question we granted certiorari to resolve.” 

The majority’s cavalier treatment of the factual question provoked a concurrence from Justice Kennedy.  It also brought to my mind some of the discussion at the Criminal Appeals Conference here earlier this week about the disengagement of appellate judges from basic error-correction functions.  Paul Carrington, in particular, criticized the apparent preoccupation of appellate courts with law-making, to the detriment of other endeavors that may seem less exalted to judges, but are still vitally important to litigants.  As I understand it, Carrington was really speaking of the intermediate federal appellate courts, but I wonder if similar arguments might fairly be extended to the Supreme Court.  Althought the Supremes do occupy a different position in the federal court system, the lower-court judges may still take their cues from the Justices in deciding how to value different judicial activites. 

Second, the factual issue the Court declined to grapple with would have been easy to decide if the jury had been given a special verdict form and required to state what it found with respect to the different elements of the charged offenses.  I’ve never understood why special verdict forms are not used more frequently.  Yes, they would make the jury’s job more complicated.  But, in addition to helping sort out Double Jeopardy issues after the fact, they would also force the jury to pay closer attention to each element, thus reducing the likelihood of logical inconsistencies in the outcome.  When I served on a civil jury a few years ago — yes, a law professor was inexplicably permitted to serve on a jury! — we used a special verdict form that required an express decision on each element.  During the deliberations, it became clear that several jurors were prepared at the outset to render a quick plaintiff’s verdict, but working through the elements one at a time caused these jurors to focus on weaknesses in the plaintiff’s case they had not appreciated at first.  Without the discipline imposed by a special verdict form, I doubt these jurors would have been brought around to see these problems.

Third, I was struck by Yeager’s complete discounting of the significance of hung counts: “Hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. . . . [T]he fact that a jury hangs is evidence of nothing — other than, of course, that it has failed to decide anything” (14).  As Justice Scalia observes in his dissent, this seems a considerable overstatement.  A hung jury is surely “evidence” of something: it means that at least one juror concluded the government satisfied its burden of proof and that at least one juror concluded the contrary, and it supports an inference that the case is sufficiently close that reasonable minds may differ on whether the defendant ought to be convicted. 

Moreover, Yeager’s reasoning on this score may prove too much.  The majority put it this way:

A host of reasons – sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few — could work alone or in tandem to cause a jury to hang.  To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room.  But that is not reasoned analysis; it is guesswork.

Yet, much the same could be said about acquittals.  We don’t really know, for instance, whether Yeager’s acquittal was a result of confusion, compromise, exhaustion, or nullification.  Ashe v. Swenson assumes a careful rationality behind jury decisions — an assumption that is not well supported, as I understand it, by the research on jury decisionmaking. I would think the assumptions especially dubious in a complicated financial fraud case like Yeager, in which the trial lasted 13 weeks, and the jury had to wade through no fewer than 165 counts.

The majority was trying to show that acquitting intrinsically carries more meaning than hanging in order to reconcile the collateral estoppel doctrine with the hung-jury rule.  The dissenters downplayed the distinction in order to limit the reach of the collateral estoppel doctrine; indeed, they made clear they thought Ashe to have been wrongly decided.  But seeing the meaning of an acquittal as no less mysterious than that of a hung jury might instead lead to the opposite conclusion: instead of Ashe, we could toss the hung-jury rule overboard, precluding retrial of hung counts across the board.  After all, it is only a matter of convention that we see an acquittal as a loss for the government and the hung jury as something else; in either scenario, the government has failed to carry its burden of convincing twelve jurors (or a somewhat smaller number in a few jurisdictions) of the defendant’s guilt beyond a reasonable doubt.  Perhaps the government’s failure in both scenarios should carry the same Double Jeopardy consequences.

Cross posted at PrawfsBlawg.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her.  Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party.  If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.

Certainly there are grounds to criticize the textualist reading of the Second Amendment endorsed by the Heller majority.  In the course of finding that the Constitution prohibits the federal government from banning handguns, Justice Scalia applies the modern, colloquial usage of the phrases “bear arms” and “keep arms” in order to conclude that the text of the Second Amendment guarantees a right to own handguns for personal use.  He also chooses to interpret the operative clause of the Second Amendment independently of the prefatory clause in the first instance, and only later reintroduces the prefatory clause into the analysis in order to determine whether it forecloses his chosen interpretation of the rest of the Amendment.

Although Justice Scalia denies it, the meaning of the phrase “bear arms” did possess a distinctive meaning in the 18^th century that differs from the way in which the phrase is commonly used today.  The phrase was applied to the military use of weaponry and was derived from its Latin roots (arma ferre) describing the “equipment of war.”  Justice Scalia’s method of interpreting the text also ignores the Style Periodique used by the drafters of many formal 18^th century documents (i.e., Thomas Jefferson in the Declaration of Independence), whereby a series of linked propositions gradually reveals the full meaning of a sentence at its conclusion.  In other words, it is likely that the meaning that Justice Scalia ascribes to the words of the text was not in fact the original intent of the drafters of the Second Amendment.  The Heller opinion is strong evidence that textualism is not a reliable technique for divining original intent.

Indeed, more than twenty years ago Judge Bork asserted that the originalist interpretation of the Second Amendment was limited to the protection of formal state militias as a counterweight against a standing federal army.  Many forget that the National Rifle Association was critical of Judge Bork during his confirmation hearings for this very reason.  I do not know whether Judge Bork has subsequently modified his views on the matter.  My assumption is that Judge Sotomayor is wise enough to avoid any direct criticism of the Heller opinion during her confirmation hearings.

However, Judge Sotomayor will undoubtedly be questioned closely about her ruling in the Second Circuit case of Maloney v. Cuomo.  The issue there was whether the Heller opinion guaranteeing an individual right of gun possession applies to state and local governments as well as to the federal government.  In other words, does the 14^th Amendment “incorporate” the Second Amendment and apply it to the states despite the fact that the original Bill of Rights only applied to the federal government?  In Maloney, Judge Sotomayor sat on a three judge panel that refused to read the Heller decision to in any way limit state gun control laws.

Opponents of Judge Sotomayor would like to use this ruling as evidence that she is hostile towards gun rights.  Unfortunately, the underlying premise of such an attack is that the Heller opinion gives circuit court judges carte blanche to overturn hundreds of years of Supreme Court precedent.  A long line of Supreme Court cases rejects the wholesale incorporation of the Bill of Rights against the states via the 14^th Amendment (The Slaughter House cases) and also upholds state laws restricting gun ownership (Cruikshank, Presser and Miller).  As Judge Easterbrook of the Seventh Circuit noted — in the course of oral arguments in a case where he ultimately adopted the same reasoning as the Maloney panel– the decision to depart from such established precedent is “above [a circuit judge’s] pay level.”  The issue of the incorporation of the Second Amendment against the states may come before the Supreme Court as early as next year.

Interestingly, the Robert Bork of twenty years ago might well agree with the reasoning of the Maloney decision.  As a law professor, Judge Bork wrote in opposition to the application of the Bill of Rights to the states, and he was very critical of the manner in which the Supreme Court “incorporated” the Bill of Rights through the Fourteenth Amendment’s right of due process.  In fact, his originalist theory of constitutional interpretation appears incompatible with both the Heller majority’s modern reading of a time-specific phrase and with the push to read the Second Amendment as a limit on state power.

As a Supreme Court Justice, Judge Sotomayor will not be shackled by precedent to the same extent as a circuit judge.  Therefore, she will face pointed questioning on her views of the Second Amendment and the incorporation debate.  My prediction is that if she is confirmed she will confound her critics and vote to apply the rights recognized in the Heller decision against state and local governments.

After all, the Heller opinion interprets the Constitution in a way that every liberal should love.  The case can be read to support the proposition that the individual rights expressed in the Constitution should be interpreted expansively in order to reflect current realities.  Nowhere did the Heller majority pause to consider whether the individual Second Amendment right that it found in the text applied specifically to automatic weapons, armor piercing ammunition, or any of the other modern aspects of “firearms” that were unknown in 1789.  Instead, Justice Scalia’s opinion attaches the right to bear arms generally to the kinds of weapons “typically possessed by law-abiding citizens for lawful purposes.”  Of course, the weapons that met this criteria in 1789 differ from the weapons that met this criteria in 1939, when the Court upheld the federal regulation of shotguns, which might very well differ form the types of weapons that meet this criteria today.  This fact suggests that once a right is located in the original text it continues to attach and respond to evolving societal circumstances.  Therefore, Justice Scalia’s treatment of individual rights under the Second Amendment contrasts with other instances where he has expressed doubt that the scope of conduct protected by the Constitution can evolve.

If we take an acceptance of evolving individual rights and add the additional confirmation that state and local governments are necessarily precluded from restricting these evolving rights to the same extent as the federal government, the result is some of the strongest rights-based jurisprudence of recent years.  I doubt that any of this would trouble a Justice Sotomayor.  On the other hand, a Justice Bork might have difficulty accepting such a result.

The Heller opinion provides a test case of what happens when conservative theories of constitutional interpretation come into conflict with culturally conservative values.  During his career as a scholar and a judge, Robert Bork made it clear that if forced to choose between the two he would choose the former.  His consistency of thought over his long career fed into the popular conception of Judge Bork as a jurist that placed fidelity to theory ahead of the real world consequences of his judicial rulings.  After all, the public wants to see a little pragmatism in its judges, just not too much pragmatism.  But Judge Bork’s place in the conservative canon has become somewhat ambiguous some two decades after his nomination battle.  Despite his continued iconic status as a symbol of conservative thought, the power brokers in today’s conservative political movement place a primacy on cultural values over theoretical consistency.

This focus on cultural conservatism has had unintended consequences for the political right.  I would contend that the litigation strategy of the National Rifle Association has done more to expand the protection of individual rights under the Constitution over the past few years than the strategy of the American Civil Liberties Union.  Paradoxically, the success of cultural conservatives in achieving their objectives on the issue of the right to bear arms has come at the expense of undermining the intellectual foundation of Judge Bork’s judicial philosophy.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.

It was another Chief Justice, John Marshall, who famously asserted the traditional common law rule that governed the role of the Supreme Court in the administration of justice. In Marbury v. Madison, Justice Marshall wrote:

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

By demanding that the judicial remedy be clear and manageable before the Court should undertake to recognize the existence of a constitutional right, Chief Justice Roberts would transform judicial restraint into judicial timidity. For example, one could easily take the holding of the Supreme Court in Brown v. Board of Education – that the maintenance of segregated schools for blacks and whites violates the Equal Protection Clause – and generate 40 unanswered questions:

1. Is the proper remedy for segregation the forced busing of students to different schools?

2. Should busing plans be designed to achieve the integration of each individual school or is it sufficient that the school district as a whole be integrated?

3. Should busing plans incorporate districts without a history of discrimination if doing so will aid in the creation of a larger integrated educational system?

4. How long should forced busing plans be maintained before integrated school districts are allowed to naturally slide back towards segregation?

5. Can school districts without a history of intentional segregation choose to voluntarily impose busing plans that create integrated schools?

I could go on and on, as there is a two decade history of busing litigation in federal courts that worked through these and countless other questions in the wake of the Brown decision.

These cases constitute the far end of the spectrum in terms of federal judges leaping into the great unknown in order to craft a remedy for a newly created constitutional right. Yet Justice Roberts seems to suggest that the lesson to take away from this experience is that the Supreme Court should not have overturned Plessey v. Ferguson and ordered the desegregation of public schools. He suggests that if the Justices cannot anticipate all of the issues raised by an attempt to remedy the violation of a constitutional right, perhaps the right shouldn’t exist at all. I prefer Justice Marshall’s classic definition of the judiciary. If there is a violation of a legal right, it is the obligation of the federal courts to find a remedy.

You know (or I’ll tell you) the basic facts. Massey has an important case before the West Virginia Supreme Court -  an appeal of a $ 50 million verdict against it and in favor of Caperton and others. Massey’s CEO makes independent expenditures in the amount of $3 million in support of candidate Brent Benjamin. Benjamin wins and so does Massey – by a 3-2 vote with now Justice Benjamin in the majority.

The Supreme Court held, in a 5-4 decision, that Benjamin’s failure to recuse himself violated Caperton’s due process rights. So what’s the problem?

As Chief Justice Roberts argued in dissent, this could be a hard case that makes bad law. Heretofore, the circumstances in which the due process clause might compel a recusal have been fairly limited. The Caperton majority announces a broader right, suggesting that recusal may be compelled when, viewed objectively, a judge is unlikely to be neutral or there is an unconstitutional “potential for bias.”

The question becomes how aggressively this standard will be applied. In the context of this case, the Court identified the controlling principle as requiring recusal when a contributor with a personal stake in a case “had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judges the judge’s election campaign when the case was pending or imminent.”

But is that it? What if the contributor is an interest group, say a business association or the teacher’s union? What if the group is not a party to the case, but has a general interest in or has taken a position on the outcome? What if the alleged problem is not a contributor at all, but a judicial candidate’s announcement, not of how she would decide a particular case, but of her general judicial philosophy or world view?

In Wisconsin, there have been calls for Justices to recuse themselves in just those circumstances. Justice Annette Ziegler has been criticized for failing to recuse herself in a case where an independent group who supported her election was not a party, but had filed an amicus brief. Justice Michael Gableman has been asked to step aside in a criminal matter because he – and groups supporting him – said he was tough on crime. (If that works, there will literally be no one who has ever had a contested race who can sit on a criminal case.)

Both results seem inconsistent with the Court’s precedent in other areas. Independent groups have a right to speak as do judicial candidates. It would seem inconsistent with those cases – and perhaps the very idea of judicial elections – to make recusal the price of speech.

The other interesting feature of the case was the dispute between the majority and the dissent over the need for a clear standard. As is often his wont, Justice Kennedy’s formulation of the basic due process mandate is broad and susceptible of application in a large number of cases. It maximizes judicial discretion. Chief Justice Roberts was sharply critical, listing 40 substantial questions left unanswered by the majority opinion.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

Crawford v. Washington held instead that the framers had distinguished between “testimonial” and “nontestimonial” hearsay which are subject to vastly different conditions for admissibility. Without belaboring the history here, Crawford triggered seismic –no, tectonic – shifts in the use of hearsay evidence, a feature of every trial. The only glitch was that the Court did not share with us the meaning of “testimonial hearsay” or the reach of hinted-at exceptions for business records, coconspirator statements, or dying declarations.  Hence, we are on tenterhooks to see what comes of Melendez-Diaz.   

Sullivan’s article illuminates Crawford while addressing its impact on the thousands of prisoners convicted before 2004.  He approaches Crawford and the issue of retroactivity with insights based on practical experience and a scholar’s command of law. Sullivan, a law professor, represented a man (Earnest) who spent 24 years in prison before his conviction was overturned based on a retroactive application of Crawford.  The article places Earnest’s story in the context of the doctrinal turmoil that has marked the confrontation clause for decades.   

The article deftly weaves together three different threads.  First, there is the confrontation thread and the several false starts that preceded Crawford. Second, Justice Scalia’s majority opinion in Crawford clearly broke with prior, flawed precedent and unabashedly announced a new rule (though one ostensibly based on the confrontation clause’s history).  Crawford’s novel approach and fresh reading of history raised the issue of retroactivity, namely, who besides Crawford himself benefits from the clause’s rethinking?  In 2007 the Supreme Court unanimously held that Crawford is not retroactive, in accordance with its longstanding “Teague rule.”  In Seinfeldian terms, this meant “no soup for you” for the vast majority of those prisoners convicted prior to Crawford.

The third issue runs to the very core of federalism: What latitude do state courts have in retroactively applying “federal constitutional precedent more broadly than required by federal due process protections” (p. 236)?   In Danforth v. Minnesota (2008) the Supreme Court, according to Sullivan, afforded “states the option of formulating or applying retroactivity doctrines” that deviate from the federal approach in Teague (p. 300).  Sullivan underscores that thus far only New Mexico has fully availed itself of the discretion to apply Crawford retroactively more generously than does federal precedent, and it did so on behalf of his client Earnest. 

In sum, Sullivan’s article is at once an instructive case study, a helpful guide through difficult doctrine, and a template for postconviction litigation possibilities.  Should Melendez-Diaz break still more new doctrinal ground, as seems likely, Sullivan’s article will become all the more salient, particularly in litigating state criminal appeals.          

The nomination of Judge Sonia Sotomayor provided me with a convenient excuse to reread Bronner’s treatment of the Bork confirmation debate and to consider whether the lessons learned during that experience have any application to the Obama Administration’s first Supreme Court nominee.  The first, and most obvious, conclusion is that extreme rhetoric about the nominee has become an accepted tactic by the opponents of the party in power.  Senator Edward Kennedy’s denunciation of “Robert Bork’s America” as a land where women are forced to seek back-alley abortions and lunch counters are re-segregated will rightly be remembered as the low point in a long political career.  Similarly, the former Speaker of the House, Newt Gingrich, has had his reputation irrevocably damaged by his casual labeling of Judge Sotomayor as a “racist.”  However, in both cases, the extreme rhetoric served the larger purpose of energizing the base against a nomination and simultaneously engaging the attention of the public at large by raising the stakes of the confirmation. 

Both speakers chose their words carefully for effect and not for accuracy.  Despite the feeling of many that Senator Kennedy crossed the line of reasoned discourse, it is apparent that even today some establishment political figures (and not just those at the fringes of their parties) are comfortable using harsh rhetoric as a tactic to oppose a qualified judicial nominee.

My second observation has to do with the way that the situations of Bork and Sotomayor differ, rather than their similarities.  Bronner’s thesis is that the Reagan Administration’s policy goal of rolling back the civil rights gains of prior decades was not shared by the majority of Americans.  Even white Americans in the South were content with the contemporary status quo and unwilling to relive a contentious period in their history.  Bronner contends that Judge Bork’s ideology ran counter to a broad public acceptance of the Supreme Court’s jurisprudence on individual and civil rights under the Constitution.  In a long and distinguished career, Judge Bork had been outspoken about the need to overturn mistaken precedent.  Judge Bork identified himself with the “second wave” of legal thinkers who would correct the doctrinal mistakes made by their predecessors’ first attempts to apply the Constitution in uncharted areas.  Regardless of his credentials as a legal thinker, Bronner cites polling data showing that Judge Bork’s interpretations of the Bill of Rights and the Fourteenth Amendment were unpopular with the public.  Opponents of Judge Bork’s nomination made sure that senators in swing districts saw this data.

What Judge Bork failed to do during his confirmation hearings was to make obeisance to the doctrine of stare decisis, and to assure the Senate (and the country) that he would limit his strict construction of individual rights to open questions of interpretation.  He was given countless opportunities during his testimony to do so, and the best example he could give of a non-originalist constitutional interpretation that he would nonetheless uphold as settled precedent was the expansive breadth given to the Commerce Clause.  He could not even rouse himself to acquiesce in the right of married couples to use contraception.  Unless one views a presidential election as giving the president a free hand to remake the Supreme Court however he sees fit (a principle unsupported by either the text of the Constitution or the history of Supreme Court nominations), it appears legitimate to oppose a Supreme Court nominee on the grounds that they are unwilling to give any weight to the prior decisions of the Court.

In the Manichean world view of strict constructionists, all of those who do not share their views are “judicial  activists.”  Therefore, that label has been affixed to Judge Sotomayor by her critics despite the fact that her record demonstrates a conscientious effort to decide cases in accord with established precedent.  This characteristic, once considered a hallmark of judicial restraint, is apparently a defect when the precedent is not of one’s liking.  The key difference between Judge Bork and Judge Sotomayor is that the former challenged the status quo while the latter seeks to perpetuate it.  The traditional meaning of the phrase “activist” applies to the former type of judge, not to the latter.  Having succeeded in giving the phrase “judicial activist” a negative connotation with the public, there is now a concerted effort by some to redefine the type of judge who qualifies for the epithet.  However, as long as stare decisis is the bedrock of Supreme Court jurisprudence, attempts to brand moderates like Judge Sotomayor as “judicial activists” will fail.

I will have more to say on a comparison of the Bork and Sotomayor nominations in an upcoming post.

A couple of reactions.  First, as a unanimous decision in such a politically charged area as the death penalty, Bies is a nice reminder — amidst the high emotions and free-flowing hyperbole surrounding the Sotomayor nomination — that justices from across the ideological spectrum can and (at least at times) do set aside policy preferences to reach consensus right answers.

Second, although I’m pretty well convinced the Court got the right answer with respect to Bies, the opinion swept more broadly than it had to, perhaps unnecessarily limiting the Double Jeopardy issue preclusion doctrine. Is this one of those instances of “easy cases make bad law”?

The Ohio Supreme Court’s statement about Bies’ mental limitations was a short comment made in passing, and obviously not directed to the legal standard in Atkins (which was still six years away from being decided).  Bies was playing a “gotcha” game with the Ohio courts.  His claim could have, and should have, been rejected based on the simple fact that the Ohio Supreme Court did not purport to speak to any specific question of fact at issue in the Atkins hearing.  Instead, the Court rejected Bies’ claim based, at least in part, on the fact that “the courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence” (slip op. at 8-9).  The statement on mental capacity did not trigger issue preclusion because it was merely a “subsidiary finding that, standing alone, is not outcome determinative.  Issue preclusion cannot transform Bies’ loss at the sentencing phase into a partial victory” (9).

The import of Bies seems to be that defendants cannot invoke Double Jeopardy issue preclusion unless they won on some ultimate question in an earlier proceeding.  This rule, of course, has the formalist virtue of easy administration.  But the seminal case on Double Jeopardy issue preclusion, Ashe v. Swenson, famously disavowed formalism in favor of “realism and rationality.”

So, here is a hypothetical variation on Bies in which “realism and rationality” would at least arguably favor the defendant.  Imagine that the Ohio courts had not merely made a vague, conclusory reference to Bies’ mental limitations, but instead made the specific finding that “an IQ test administered after the offense establishes that Bies’ IQ is 65.”  In a later, post-Atkins hearing in state court, the state introduces a different IQ test showing an IQ of 71 and tries to take advantage of the rebuttable presumption recognized in Ohio law “that a defendant is not mentally retarded if his or her IQ is above 70″ (5).  Now it doesn’t feel quite so much like a game of “gotcha” when the defendant invokes issue preclusion.  Or, make the scenario even more favorable to the defendant and imagine that the state actively litigated the IQ question pre-Atkins and lost. Or, better still, the Ohio courts specifically found the test showing the IQ of 71 to be unreliable for some reason.  Do we really want to give the state a second opportunity to litigate IQ after it lost so decisively once?

Now, perhaps even in the hypo, the right answer is just to decide the IQ issue again anyway.  I can readily admit the disadvantages of case-by-case litigation of the reliability of “subsidiary findings” in earlier proceedings, and a balancing of the various competing values might well point in the direction of the bright-line rule endorsed in Bies. But a little more “judicial modesty” by the Court could have easily saved the question for another day.

Cross posted at PrawfsBlawg.