Tuesday, June 9, 2015
Randy Barnett continues his debate with Ed Whelan on judicial supremacy (about which I have previously commented here and here). Barnett poses some questions to clarify their joint inquiry and presents his answers to advance it.
Here are some of my own answers to Barnett's questions (which I think are similar to answers that Paulsen and Whelan would give as well):
Monday, June 8, 2015
Randy Barnett has a long post at Volokh Conspiracy arguing (with reference to his 2004 article on The Original Meaning of the Judicial Power) that "the 'judicial power' included the power to nullify unconstitutional laws." His basic claim is that "when the Supreme Court finds that a law is unconstitutional, under our system of government, that law is rendered null and void" (emphasis in original). He says that a judicially nullified law is like a dead parrot. Judicial review kills, and dead is dead.
But we shouldn't need Miracle Max to help us realize that there's a big difference between mostly dead and all dead. Mostly dead is slightly alive. And when it comes to law, a judicial ruling of unconstitutionality does not always kill; sometimes it's just a flesh wound.
Take Marbury v. Madison, for example. What is "that law" that this decision "rendered null and void"? The Judiciary Act of 1789? Just Section 13? Just part of Section 13? Or just certain applications of one part of Section 13?
There is no right answer, because the question is wrong. The Supreme Court in Marbury did not render any particular law null and void. As far as the Court was concerned, the law was already void to the extent of its conflict with the Constitution, and it was the duty of the Court to refuse to give it effect as law in resolving the case. So the Court did just that; it refused to give effect to Section 13 of the Judiciary Act of 1789 because doing so in that case would have caused the Court to exceed its jurisdiction under Article III.
The reasons the Court gave for this refusal would require a similar refusal for every other attempt to secure a writ of mandamus from the Supreme Court in an exercise of original jurisdiction outside the limited categories of cases specified in the Distributing Clause of Article III. And as a matter of law, these reasons are to be given effect going forward by virtue of precedent and preclusion doctrine in addition to the intrinsic force they possess for participants in the legal system. But the Judiciary Act of 1789 itself underwent no change by virtue of the Court's ruling in Marbury. The Court declared the law void, but did not render the law void. Put another way, the Court recognized the constitutional conflict and refused to give effect to the statute, but it did not take the law and make it void.
For a contrast with the judicial nullification power described by Barnett (and the concept of judicial review supported by many many others), see the judicial displacement understanding set forth in my first law review article, Partial Unconstitutionality. Here's what I said there about Marbury v. Madison:
The statutory grant of authority for the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction went beyond the Article III grant of original jurisdiction to the Supreme Court. As inferior law, the statutory grant was therefore unconstitutional to the extent that it went beyond Article III, but no further. The Judiciary Act of 1789 was still “law” to the extent that it was not “void.” The operative concept of judicial review here was one in which the Court, in disposing of the case before it, was obliged to apply the superior law of the Constitution in preference to conflicting, inferior statutory law: “If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” Marbury v. Madison, 5 U.S. at 178.
Thursday, June 4, 2015
There has been a lot of learned commentary lately on the idea of judicial supremacy. (See, e.g., Mike Paulsen, Michael Ramsey (and again), Seth Barrett Tillman, Ed Whelan (and again), Ilya Somin, Andrew Hyman (and again), Evan Bernick, Randy Barnett). (HT: The Originalism Blog)
It's difficult to pick precisely where to wade in. So rather than pick one spot, I'll just add a few observations.
1. Originalist methodology:
To the extent that we are trying to figure out what our law provided with respect to judicial supremacy at the Founding, we should just ask the question of "original-law originalism": "What did our law, including the Constitution, provide regarding the authoritativeness of Supreme Court legal determinations about the meaning of the Constitution in 1789?"
This seems more promising than starting with "how the relationship between the monarch and judges was understood in eighteenth-century England" or the way in which "at least some framers expressed views that indicated a privileged role for judges in interpreting the law." To the extent that such understandings were sources of law, they will be picked up by the original-law inquiry. But there are much more obvious sources of law to begin with, such as the law of jurisdiction, the law of judgments, and the law of remedies. These are the sources of law we typically look to in determining the authoritativeness of all sorts of other judicial rulings; why shouldn't the authoritativeness of determinations about the legal meaning of the Constitution by the Supreme Court also be shaped by these sources?
One feature of the judicial power in the Founders' law that persists in our law is that a court's authority to rule in a particular case depends on jurisdiction (both as to subject-matter and with respect to a person or thing within the court's authority to reach). As Will Baude has argued, the "judicial power" in Article III is best understood in intra-systemic legal context to incorporate consideration of jurisdiction into the determination whether and with respect to whom a judgment is binding: "the judicial power vested in Article III courts allows [federal courts] to render binding judgments that must be enforced by the Executive Branch so long as those courts have jurisdiction over the case."
2. Remedies and Marbury:
Under the Founders' law, the binding effect of a legal determination with respect to a particular matter was tied to the remedies it was authorized to provide. This is why Marbury v. Madison counts against modern notions of judicial supremacy.
Chief Justice Marshall's extensive disquisition in that case on the Jefferson Administration's illegal refusal to deliver Marbury's commission established no law binding on the Administration (or anyone else for that matter). A writ of mandamus issued by that Court would have supplied the means by which that binding effect would have arisen. But the Court issued no such writ.
Chief Justice Marshall's opinion had three parts: (1) Did Marbury have a right to delivery of his commission? (2) Is there a judicial remedy for the violation of Marbury's right? (3) Is the right remedy a writ of mandamus from the Supreme Court? An affirmative conclusion in each of the three parts of Chief Justice Marshall's three-part opinion would have been legally essential to give rise to a judgment that altered the legal position of the Jefferson Administration.
The Court disposed of the case at (3), determining that the Supreme Court Court lacked authority to issue mandamus in the exercise of its original jurisdiction because the statutory grant of jurisdiction exceeded the constitutional grant. But part (2) was another way the Court's part (1) determination could have been legally inefficacious. Even if issuance of the writ of mandamus would have been within the Court's jurisdiction, the Court's determination that Marbury had a vested legal right to his commission would not have been binding on the Administration unless this determination was enforceable via a judicial remedy such as a writ of mandamus.
It very well may be that the Jefferson Administration did break the law in refusing to deliver Marbury's commission (and maybe even for the very reasons supplied by Chief Justice Marshall in the first part of his opinion), but the Supreme Court's first-part say-so on that point would itself have provided no content-independent legal reason to think so as a matter of the Founders' law.
3. The judicially situated nature of judicial reasoning about the Constitution.
Constitutional doctrine applied by courts does not directly map onto constitutional meaning such that a judicial declaration with respect to the constitutionality or unconstitutionality of a law is equivalent to a judicial statement that a law is constitutional or unconstitutional.
A recent high-profile example comes from Chief Justice Roberts's outcome-determinative opinion in NFIB v. Sebelius. Roughly, the Chief Justice's reasoning took the form:
(1) The "individual mandate" exceeds Congress's authority if the relevant provisions are a mandate plus penalty rather than a tax.
(2) Even though the relevant provisions do not most naturally look like they impose a tax, they resemble a tax enough that the judiciary should treat them as amounting to a tax for purposes of refusing to hold them unconstitutional.
(3) The Court therefore should refuse to hold the "individual mandate" unconstitutional but instead treat the relevant provisions as amounting to a tax.
There is nothing about this reasoning that prevents someone who is not a federal judge from deciding that the "individual mandate" really is a mandate enforced by a penalty and therefore unconstitutional. Indeed, one who accepts the constitutional reasoning of Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito under the Commerce Clause and Necessary & Proper Clause probably should reason this way as long as he is under no role-based legal obligation (as Chief Justice Roberts believed he was) that requires a thumb on the statutory-interpretive scale to avoid a determination of unconstitutionality.
Wednesday, May 27, 2015
The ABA Journal reports.
As with much social-issues reporting, it is difficult to get a sense of the magnitude of the reported shift in attitudes. The article quotes Kent Scheidegger, an excellent prosecution-oriented lawyer, as saying the shift in conservative attitudes is overblown:
“It’s a strategy of the other side to find people who fit that mold and promote them,” he says. “Every great once in a while you get a murder victim’s family member who says they are opposed and they get lots of support and exposure. Now they’re trying the same thing with people they identify as conservatives.”
That may be the case; hard to say. But perhaps the strategy is more effective these days because conservatives who oppose the death penalty are more numerous these days. That seems to be the case in Virginia, anyhow. A good example of a shift is former Virginia Attorney General Mark Earley,Sr., who described his changed perspective at a symposium last year at the University of Richmond School of Law.
Friday, May 22, 2015
"The premise is that there is a spark of humanity in everyone that is ultimately more defining than whatever delusions, depression, and negative emotions culminated in the act of murder."
But there is also this: "Clarke saved his life at the expense of his dignity. Kaczynski was furious, and remains so."
And this:
In death-penalty cases, the jury is asked to make a "reasoned moral response" to evidence about the offense and the offender. In federal law, the process involves "weighing" aggravating and mitigating factors. Each juror is permitted to give any mitigating factor whatever weight that juror thinks it deserves. Jurors don't need to come to agreement about what is mitigating and what the mitigators are "worth." A single juror can prevent the unanimous verdict that is necessary to authorize the death penalty.
Now the odd thing: This "reasoned moral response" is given by jurors who already said they were willing to vote for death. Anyone against the death penalty is excluded.
Clarke's task is to create "reasoned moral response." It's not just a recitation of trauma but something more comparable to the work of a novelist. In Paradise Lost, the Devil is the most interesting character, famously. It's thought that Dostoyevsky's best work rose from a polemic waged against the hollow characters of Gogol, whose shells he stole and reinhabited from within, allowing the reader to get close enough so that when murder happens, we sympathize, not with the crime, but with the anguish of the character who committed it.
Thursday, May 21, 2015
A commentary by George Will in the Washington Post and a piece by Ben Crair at The New Republic (not sure what to call it, as it's not billed as an editorial or opinion piece but reads like one)provide reasons to think that the death penalty is ripe for repeal or drastic limitation. (HT: How Appealing)
I hope that legislators in Virginia (where I live) can follow the lead of legislators in Nebraska and vote to eliminate the state death penalty.
At a minimum, those legislators who support the death penalty should have the courage of their convictions and replace lethal injection with the firing squad as a method of execution. In comparison with lethal injection using experimental protocols, the firing squad is quicker, more reliable, and less vulnerable to constitutional challenge.
Wednesday, May 20, 2015
Judge Posner is back with another opinion rejecting Notre Dame's attempt to secure exemption from the contraceptives mandate, as required by the Religious Freedom Restoration Act. I couldn't make it past page five before desiring to post some readings to accompany his recitation of the case.
Three points:
1. For a fuller explanation of the materials discussed in the paragraph on pages 2-3 that concludes with a recommendation to read the D.C. Circuit's Priests for Life opinion for "a compact and convincing summary of the benefits to society in general and women in particular of inexpensive access to contraception," take a look at Helen Alvaré, No Compelling Interest: The "Birth Control" Mandate and Religious Freedom, 58 Vill. L. Rev. 379 (2013). Note also the failure of Judge Posner's formulation here at the outset to map onto the level of specificity required by Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal.
2. For the claim on page 4 that the Administration formulated its religious employer exemption "mindful of the dictate of the Religious Freedom Restoration Act," look at the portion of the Federal Register cited by Judge Posner for support, which makes no mention of RFRA. As explained and documented in an amicus curiae brief I co-authored on behalf of Senator Hatch and other lawmakers who enacted RFRA, "the government ignored RFRA in formulating the narrow religious exemption at the outset and only attended to its requirements because of litigation and the reaction to public scrutiny."
3. For the claim that Notre Dame came within the scope of "the exemption" as a result of new regulations in 2013, take a look at the portion of the Federal Register cited by Judge Posner for support. Rather than expand the exemption to include religious employers like Notre Dame, these regulations provide an "accommodation" for these non-exempt religious employers. In response to commenters who argued that "the proposed definition of religious employer was too narrow and should be broadened to include all employers, both nonprofit and for-profit, that have a religious objection to providing contraceptive coverage in their group health plan," the promulgating Departments said that they were "finalizing without change the definition of religious employer in the proposed regulations." This definition was limited to houses of worship and integrated auxiliaries; it did not include Notre Dame.
Thursday, May 14, 2015
Some basic, but unfortunately on-point advice from Mark Rienzi for the Obama Administration: Do better than China on religious liberty.
The Administration (and others interested) should read Professor Rienzi's USA Today op-ed on a topic I briefly blogged about previously: "American nuns, Chinese booze and religious persecution."
(Interesting sidenote: The op-ed is not about same-sex marriage, but USA Today apparently saw fit to include "gay-marriage" in the web address: http://www.usatoday.com/story/opinion/2015/05/13/china-religion-america-government-gay-marriage-column/27130999/. It would have been really interesting if they had also sought to include "pizza," "memories," "Indiana," or some combination like "Hoosier-pizza-gay-marriage-China-religion-memories-america-take-out-government.")
Wednesday, May 6, 2015
Bishop Francis X. DiLorenzo (Richmond) and Bishop Paul S. Loverde (Alexandria) have issued a statement seeking to shift away from discussing methods of execution in Virginia to discussing the end of executions in Virginia.
" [I]n Virginia and elsewhere," they write, "we are having the wrong debate. We should no longer debate which inmates we execute or how we execute them. Instead, we should debate this: If all human lives are sacred and if a civilized society such as ours can seek redress and protect itself by means other than taking a human life, why are we continuing to execute people?"
I agree that there is something missing from a debate that focuses on means to the exclusion of ends. But rather than abandon the debate on means, I incline more towards a both/and approach that debates both ends and means. Because lethal injection cannot be carried out properly, we should not be using lethal injection on anyone ... which leads to the question why we should be trying so hard to execute anyone at all.
Because the best way to enter the debate the bishops seek to have on capital punishment itself may be first to _win_ the debate on lethal injection as a means, the method-of-execution debate remains one worth having.
Tuesday, May 5, 2015
It is being reported that "Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in 'eye-catching displays,' in an attempt to undermine Islam’s hold on local residents."
Taking as given the reported governmental purpose, this government action in the United States would not only violate RFRA (if engaged in by the federal government) but also the First Amendment (if engaged in by any governmental actor). Yet Hobby Lobby skeptics seem committed to the idea that for-profit entities cannot engage in a (statutorily or constitutionally) protected exercise of religion.
Surely a story like this one would cause them to rethink their legal analysis, right?
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