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September 20, 2005

Supersizing The Constitution

I am exhausted by the debate over John Roberts.

Never have we seen so much hand-wringing oratory, at such mind-numbing length, to so little effect. Throughout it all Roberts had, to use his own metaphor, a perfect innings:

Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

But for all his brilliance, discipline, and restraint in the face of incompetent and insulting questioning, it seemed nothing Roberts did would satisfy his inquisitors.

One by one, outraged Senators demanded he rise above his narrow-minded political beliefs... then vowed to oppose him unless he promised to uphold their partisan beliefs on abortion, the environment, and civil rights.

Piously, they lectured him on the sacred trust between the People and their public servants ... then asked him to violate that trust by revealing his position on pending cases: a practice explicitly forbidden by the Code of Conduct for US Judges. How quickly we forget. Surely Senator Biden, a former Chair of a Senate Judiciary Committee himself, recalls his advice to Ruth Bader Ginsburg under similar circumstances?

CHAIRMAN JOE BIDEN: "[Y]ou Not Only Have A Right To Choose What You Will Answer And Not Answer, But In My View You Should Not Answer A Question Of What Your View Will Be On An Issue That Clearly Is Going To Come Before The Court In 50 Different Forms, Probably, Over The Next - Over Your Tenure On The Court." (Committee On The Judiciary, U.S. Senate, Hearing, 7/22/93)

Or his guidance to the Ginsburg committee on standards for questioning the nominee?

“the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference … between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee’s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog.”

To all appearances, John Roberts' answers faithfully adhered to "the Biden standard". Yet Senate Democrats, who can hardly be unaware of it, were not mollified. Dahlia Lithwick comments:

Abandoning their efforts to win votes back home or to score cheap points off a constitutional superstar, Senate Democrats this morning come clean with their real fears about John Roberts: Confesses a frustrated Dianne Feinstein, D-Calif., "I don't really know what I'm going to do with respect to voting for you or voting against you. ... The impression that I have today is of this very cautious, very precise man." Chuck Schumer, D-N.Y., frets: "I, for one, have woken up in the middle of the night thinking about it, being unsure how to vote."
Schumer gives a remarkably candid rundown of the pros and cons of John Roberts. (Pros: brilliant, non-ideological, humble; cons: won't admit he was fascist under Reagan, won't disclose documents revealing he was fascist under Reagan, won't answer questions about the law.)

...So, is Roberts an ideologue? Roberts says no, and most of us are inclined to believe him. If he really is Scalia-without-the-anger, he's the most accomplished liar in world history.

But still the Dems press him. It's not good enough to be fair and humble and non-ideological. They want to know if he "gets it"—if he understands what the stakes are for women and minorities and the disabled. But there is no term of art in the law for "getting it." So, Dick Durbin, D-Ill., tries a different tack: Quoting the late Sen. Paul Simon, he asks, "Would you restrict freedom in America or would you expand it?" Roberts' response is eloquent: "I had someone ask me in this process—I don't remember who it was, but somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."

And that, right there, is the Crux of the Matter. Roberts sees his obligation as being to the Constitution, and the Democrats see his obligation as being to to the People. The rule of law, versus the rule of men. This is the true bone of contention. It's not enough, for them, that Roberts be fair and impartial: that he disregard his personal and religious beliefs and rule according to the law. Justice, for them, is not supposed to be blind.

They want a People's Judge: an advocate for The Little Guy. Someone who will, as John Kerry so often promised during his campaign, "Fight for Them". They are trying to turn the judiciary into a super-legislature, but one that is not accountable to the electorate. One that will "balance" the dangerously unreliable whims of those horrid Red states who seem, currently, to have seized entirely too much power. Dahlia Lithwick has a name for it, Law-Plus:

One witness says, "we cannot escape history," and another says that under a Justice Roberts, the "civil rights revolution wouldn't have happened." Back and forth the witnesses go—Roberts is great/Roberts doesn't get it—never really acknowledging that they are not disagreeing; that it's possible to be kind and smart and to believe in the rule of law and also not to get it.

Because the "it" in question has nothing to do with the rule of law. It's about something I might call "law-plus"—the idea that the rule of law, in and of itself, has not always made this country fair. Law-plus rejects Roberts' notion that law, applied neutrally, invariably leads to just results. Law-plus acknowledges that the federal courts have leveled the playing field in this country by broadly interpreting civil rights statutes to allow individual causes of action. Law-plus means federal courts have read the civil rights amendments broadly, in order to level the playing field. Law-plus means accepting a counter-majoritarian role for the courts when the other branches of government cannot or will not protect the weak.

John Roberts isn't a fan of law-plus. In fact, the unbounded nature of judicial power under law-plus is probably what drove him into the boiler room of the Reagan administration in the first place. Time and again he scolds the senators: If you want your statute to provide money damages, write it that way; if you want your legislation to implicate interstate commerce, write it that way. For Roberts, it is not the courts' responsibility to make statutes effective. It is not even the courts' responsibility to make the world fair.

Again, this is the heart of the liberal/conservative divide. So often we do not, really, disagree about what ought to be. We simply disagree about how best to get to the finish line.

Liberal ideology tends to be a results-oriented process in which the end is often adjudged to justify the means. But this entails doing violence to our legal system. It means substituting the rule of men for the rule of law. The danger with this approach is that once you start bending the rules, nothing means anything anymore and justice becomes an infinitely flexible concept that can be manipulated to reward whoever holds the whip hand (or whoever can deliver the most votes). SCOTUS' Kelo decision is proof positive of the danger of this approach to disregarding the clear meaning of the Constitution. In Kelo, an activist Court used their power to literally erase a plainly-stated enumerated right from the United States Constitution. Can anything be more clear on this point than Justice Thomas' dissent?

Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational,". This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion.

Power used, without accountability, becomes power abused - that is why the Founders set the job of making law to the legislature, who are elected by the People and are, therefore, accountable to them.

Over and over we are told that, had the Supreme Court had not stepped in, the civil rights era would never have happened. By this logic, had Marbury vs. Madison been decided differently the Civil War would never have been fought, women would never gained the vote, and australopithecus africanus would still be happily trailing his knuckles along the dusty transvaals of the Dark Continent.

Chains of causality can only be stretched so far without breaking. Is it so far-fetched to believe that when it issues landmark civil rights decisions, the Supreme Court may not be so much swimming against the tide of popular opinion as riding the crest of a sea change? It has oft been observed that, had Griswold been decided differently, the outmoded birth control laws it referenced would not long have survived the burgeoning Sexual Revolution which swept America in the 1960's.

Supreme Court decisions, unsurprisingly, reflect the times in which they are handed down. The arguments in Dredd Scott (1857) grate harshly on our modern ears, yet the abolition movement predated that decision. It did not take a Supreme Court Justice to launch the moral outrage which sent a nation spiralling into a bloody civil war. Hard as it may be to believe, there are other forces at work in the world that mediate for good. Fortunately, the ACLU was not present then to protect society from their pernicious influence.

This then, ironically, is the fundamental issue before the Democratic Party: they have trust issues with democracy. The rule of law is not enough for them. Our system of government as laid out by the Constitution: laws to be made by the people's representatives (the Legislature), interpreted only where insufficient or unclear by a Judiciary appointed by the people's elected President, and enforced by an elected Executive branch, is not good enough because the Democrats cannot be sure the people can be trusted to make wise decisions about who is elected to the Legislature and the Executive branch, and who the President is allowed to appoint to the Judiciary. We must allow unelected Judges to overrule the Legislature and remove contentious social issues forever from public debate. And we must preserve the filibuster to prevent any chance that the people's elected representatives might get to vote on judges appointed by the people's elected President. The Democrats do this, you understand, to protect the People from their own folly.

This is the argument we have heard posited ever since November. The Republicans now control all three branches of government: what are we going to do about it? Well, unless you're planning a bloodless coup or a complete overhaul of the Constitution by judicial fiat, I'm not sure there is anything you can do about it, my friends. Be patient: two of the three branches of government are elected and turn over every few years. That's the brilliance of the Founders' design. You'll have a chance to put your case before the American people again soon enough.

In the meantime, all you need do is play by the rules. But for Senators Biden, Reid, and Kennedy the rule of law isn't good enough. Roberts is willing to give them Law: fairly, without bias, interpreted (as pretty much everyone who has come in contact with him admits) brilliantly and in a way that is likely to move the court oh-so-slightly to the left of its current position, which ought to please them. But they don't want the law: they want law-plus, with all the trimmings.

They typify America's gluttinous fascination with conspicuous consumption - give me the Constitution, but Super-size it. And if they can't get the large fries with that, they don't want anything at all.

Posted by Cassandra at September 20, 2005 10:38 AM

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And if he supports the Living Breathing Document, what are they worried about? Haven't the Dems and Libs proven they will set aside the Constitution to
enact their personal beliefs into law?

Just asking here.

Posted by: Cricket at September 21, 2005 08:05 AM

I think that's just the issue: they're not at all sure he does support a Living Constitution.

He said he does not favor any particular approach - that he does not support originalism or textualism and it sounds as though he leans more toward making sure rulings are as narrowly focused as possible and do not conflict with precedent or (as when he was on the District Court) do not conflict with other District Court rulings, which would merely have the effect of kicking the issue up the to SCOTUS eventually.

The interesting question then is this: now that he's on the Supreme Court that is no longer an issue. He does not need to worry about conflicting with lower courts b/c SCOTUS has precedence, though given his judicial outlook he might well seek to rule in a way consistent with their main holdings where possible. You have to consider that the issue wouldn't have come before them, had there not been a conflict in the first place - that is why they are there.

But given his preference for minimalism, I could well see him tending to remand rather than override or issue sweeping pronouncements from on high. How often has SCOTUS even done that in the past? I really don't know.

It will be interesting...

Posted by: Cassandra at September 21, 2005 09:37 AM

Great post.

I'm glad Schumer wasn't melodramatic or anything.

I wouldn't be surprised if he related a story about a midnight visit from the ghosts of Biden past (circa 1993), present, and future.

"Biden of the Future," Schumer exclaimed, "I fear you more than any spectre I have seen. But as I know your purpose is to do the country good, and as I hope to live to see another court from what it is, I am prepared to bear you company, and do it with a thankful heart. Will you not speak to me?"

Posted by: Hubris at September 21, 2005 09:46 AM

I like this idea of a narrow focus. If I understand you correctly (keeping in mind that KJ and spd are laughing their heads off as they read this), by narrowing the focus and keeping the issues as close to the law as possible, he keeps it where it belongs and by so doing, strengthens the rule of law on the local level? That way the SCOTUS doesn't have to
reinvent the wheel?

I am such a neophyte...

Posted by: Cricket at September 21, 2005 10:07 AM

You? You're not standing up here with one foot in your mouth and the other in your left ear bloviating on a topic you know next-to-nothing about. KJ and spd have been laughing at me for a year and a half.

I don't know Cricket. I just read stuff and try to puzzle it out in my head. Then I throw my half-baked theories out there hoping that if I don't know what the hell I'm talking about, someone will tell me to STFU and maybe I'll learn something, but at this point I'm pretty much resigned to the sound of crickets chirping.

I'll go out on a limb.

If I were ruling, my philosophy would go something like this. In law, as in life, there is always some dumb-ass with a Bright Idea, and then there is something called the Law of Unintended Consequences, which KJ will immediately mock me for bringing up because lawyers also like to call that the slippery slope (or what I call the otter slide to hell).

What that means is that overly-broad rulings, like overly-broad or overly-vague statutes, are rife for abuse. Some asshat is always going to come down the pike and "invent" a creative use you never foresaw for your clever ruling.

So it is in society's best interest to rule minimally and make your ruling as narrowly-focused as possible (keeping in mind, of course, that there is a balance between this principle and being such an idiot that 6 almost-identical cases come up before you next week because you failed to enunciate the general principle clearly enough so that it applies to them, too).

Since his job is to interpret the C, that means if a statute is at fault, he says to Congress, "fix the law" rather than discovering a penumbral right in the text to address some perceived inequity.

If a district court has erred, maybe he remands the case (sends it back) rather than ruling for them (affirming or overturning). The difference, as you so aptly noted, is returning the power to the lowest applicable level and not using a sledgehammer to kill a gnat.

A truly "conservative" use of judicial power.

Posted by: Cassandra at September 21, 2005 10:19 AM

Cass, if they were laughing at you for a year and a half, they wouldn't be coming back. So, I did get a basic understanding of what you were trying to say.

Well, then I like where you went with it, because
aside from Bounce dryer sheets, to read dippy stuff
such as "It is a violation of Federal law to use this product in a manner that is inconsistent with
it's labeling, contents," drives me batty. It goes with the larger picture of personal liberty and responsiblity...a broad scope, but essentially to preserve liberty for all it would almost have to get to the basics.

Good call.

And thanks.

Posted by: Cricket at September 21, 2005 10:33 AM

That's what you think.

This is a humor site. That the humor is largely unintentional is something I have to live with.

Posted by: Cassandra at September 21, 2005 10:51 AM

Ha I say. While you yourself may have called your blog the snarkpit of fascism, I also want to remind you that you are read because you make sense. And if the humor is there, so be it. A spoonful of sugar does help the medicine go down, you know.

As to humor, here is an interview of what is really going down:
Interview from Iraq

Posted by: Cricket at September 21, 2005 11:00 AM

An outstanding piece of crital writing, Cass.
I'd be a fool to laugh at you.

Posted by: spd rdr at September 21, 2005 11:26 AM

I am sorry. I did not intend to create an awkward situation.

As usual, I expressed myself poorly. I was trying to assure Cricket that she is no more ignorant than I am, and so she should not feel hesitant to work out her thoughts in front of everyone, since that is essentially what I do every day.

Except that I tend to go on and on about it.

Posted by: Cassandra at September 21, 2005 12:08 PM

You see, as I have been reading this for the past few months, we have been sent a broad ruling that pretty much stomps all over property rights. So, lets say someone else gets a property rights case up to the SCOTUS, could that ruling be overturned now that Roberts is on it?

Cause Kelo vs. New London is one I would dearly love to see overturned if Congress isn't gonna rein 'em in.

Posted by: Cricket at September 21, 2005 12:11 PM

I have lost my fear of working out my thoughts here, because like you say, if no one comments either it was so bad it didn't need commenting on or it was pretty much what everyone else was thinking.

That is why I come here more than I go to other blogs. There are good posts with great discussions, and no one is turned away as long as they are well behaved.

And I meant 'reversed.'

I just got through balancing the checkbook. I need a truffle. Just one. And a fine Dr. Pepper.
I will settle for a Snickers bar and a glass of water.

Posted by: Cricket at September 21, 2005 12:16 PM

Well stated, well written. No laughter here.


This time.

Posted by: KJ at September 21, 2005 01:55 PM

KJ is a toad that Judge Roberts missed.

Posted by: Cricket at September 21, 2005 02:02 PM

If KJ is a toad, then he is an adorable one.

But then I have always been uncommonly fond of toads, so what do I know?

Posted by: Cassandra at September 21, 2005 02:35 PM

Yes, he is an adorable toad at that. Might even be a prince...yeah. I bet he is. Mrs. KJ thinks so.

Posted by: Cricket at September 21, 2005 02:47 PM

Did u hear Harry Reid's speech about how he couldn't vote for a man who wouldn't apologize for using the word 'amigo' 20 years ago? I almost wrecked my car I was laughing so hard. Bitter, bitter Dems!

PS Can you take in Rightwingsparkle while Hurricane Rita destroys Houston? We don't want her defecating in the cheap seats in the Astrodome

Posted by: beautifulatrocities [TypeKey Profile Page] at September 21, 2005 03:07 PM

Interesting statement from Leahy, indicating that he's voting for Roberts.

Posted by: Hubris at September 21, 2005 04:37 PM

You know what really confuses me about the Kelo decision? Here we have essentially the liberal half of the SCOTUS coming down in favor of what could reasonably be described as "corporate interests." ?!? And so we have the spectacle of the conservative justices, who are supposed to be the oppressors of "the little guy" through their hidebound constructionist philosophy and emphasis on "original intent," sticking up for those who could reasonably described as...THE LITTLE GUY.

Am I missing something?

When we start interpreting the law too broadly, eventually it's going to lead to abuses of power...more than there would be if the law were interpreted too narrowly. Roberts's point, as I understand it, is that legislatures simply need to write better laws, and not leave the courts with the job of sorting out vaguaries.

Posted by: Sloan at September 21, 2005 04:52 PM

Activisim? He jests.

Posted by: Cricket at September 21, 2005 04:53 PM

BTW, Cricket, that video link is brilliant. What show was that taken from?

Posted by: Sloan at September 21, 2005 04:54 PM

Sloan, you got it better than I did, and expressed it extremely well. I think that was what Cass was referring to and what I dimly got.

Well done.

Posted by: Cricket at September 21, 2005 04:55 PM

I dunno. I found it on a homeschool site I go to.
A few of the ladies there (we've known each other on line for almost ten years) have husbands in Iraq and are still homeschooling while they are gone...and one put that up there for some levity. It sounds Monty Pythonesque, doesn't it?

Posted by: Cricket at September 21, 2005 04:57 PM

Wow... that was incredible, Hubris. I didn't have time to read it until now. I will have to think that one over a bit.

I have never much liked Leahy, but I am somewhat forced to revise my opinion of the man. I think I need to read it again.

Jeff, nothing Reid does surprises me anymore. The man is a foaming maniac.

And yeah Sloan, that's exactly how I feel about it. Leahy's point was somewhat well taken: that no legislature gets it right the first time and Roberts was perhaps expecting too much, but on the other hand, that's what the courts do: send the law back to them for action. They need to fix it. And in Hedgepeth (the french fry case) that's what happened. If the courts are too heavy-handed, the power of the legislatures is usurped and no one learns their lesson. Sometimes a little 'pain' is the price of progress.

Everyone wants a quick fix, but quick fixes lead to weak systems.

Posted by: Cassandra at September 21, 2005 07:09 PM

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