The Supreme Court's haughty disregard of states as lawmaking governments was on full display this past fall when the Court green-lighted the judicial redefinition of marriage in several states without so much as the courtesy of letting the states argue their case to the Justices in person. Although surprising (and weak), the Justices' refusal to let themselves be bothered is consistent with the course steered by shifting majorities in the marriage redefinition litigation over the past few years.
One would be foolish to ignore the likelihood that various Justices, for their own reasons and mostly independently rather than pursuant to a conspiracy or some sort of grand plan, have been rationally pursuing an agenda for constitutional change in which these denials of certiorari were instrumentally useful. If that assessment is accurate, these denials of certiorari illustrate one aspect of judicial supremacy as examined by Jeremy Waldron in his Francisco Lucas Pires Distinguished Lecture at the Catholic University of Portugal (noted on MOJ by Rick on All Hallows' Eve and posted to SSRN as complete as of the same day (9/29) that the Supreme Court decided at Conference to deny certiorari).
Waldron argues in this Lecture that "judicial review tilts towards judicial supremacy when the courts begin to think of themselves and present themselves as pursuing a coherent program or policy, rather than just responding to particular abuses identified as such by a Bill of Rights as they crop up." That seems to be exactly what the Supreme Court (admittedly a "they" rather than an "it") has been doing with respect to the definition of marriage.
What can be done about this? It's worth asking. For while the problem of judicial supremacy is evident now in connection with marriage redefinition, the problem is much more widespread and it does not necessarily have a particular ideological valence.
The more I've thought about the problem of judicial supremacy recently, the more I've come to think that one typical way of responding to it is sometimes exactly the wrong response (even though probably constitutional). That way is jurisdiction-stripping legislation.
When the Supreme Court or some other federal court issues or threatens to issue a decision that legislators believe further separates or would further separate constitutional law (created by the courts) from the Constitution (under which the federal courts are created), legislators sometimes propose legislation that would remove certain categories of cases from federal court jurisdiction (and sometimes state court jurisdiction as well). This legislation virtually never succeeds (in part for reasonsexplained by Tara Grove), but practical futility doesn't prevent these proposals from being proposed (which may be just as well for proponents when the proposals represent mere posturing). And even when such legislation succeeds, it does not eliminate bad precedent and does not entirely prevent the creation of new bad precedent.
A potentially more promising response to judicial supremacy may be "jurisdiction stuffing." (I thought I made this phrase up, but it turns out that the phrase has already been coined and (probably planted deep in the part of my brain that lights up on federal jurisdiction matters) by Jim Pfander.) Instead of running from the Supreme Court, as in jurisdiction stripping, the idea of jurisdiction stuffing is to rush it. (The Super Bowl was just the other day; think of this defensive strategy as a blitz.) The mechanism would be mandatory appellate jurisdiction over a set of cases. This would deprive the Supreme Court of discretion to decline to decide that set of cases. It would thereby would curtail the Justices' exercise of one their most potent powers for pursuing a particular program of constitutional change, namely their agenda-setting authority.
Such legislation seems as constitutionally unproblematic as it is counter-intuitive. But the effects on substantive constitutional law could be significant. In particular, jurisdiction stuffing would likely moderate the Court's willingness to introduce major changes into constitutional doctrine in areas where they have mandatory appellate jurisdiction. This just makes more work for them. And knowing that will force them to confront directly the unsettling effects of their interventions. More broadly, jurisdiction stuffing could have a beneficial effect of making the Supreme Court more like a court. Most courts don't enjoy the freedom to set their own agenda the way that the Supreme Court does. In a world of judicial supremacy in which supremacy is not going away, the best strategy may be to try to make it more judicial in nature.
All of the Justices, to varying degrees and in varying ways, are too much "big-picture-only" people in too many ways to be good judges in their big-picture-only world. One way of counteracting this is to force more immediate confrontation with the nitty gritty of how their big-picture pronouncements are supposed to be implemented doctrinally. Want to hold mandatory state sentencing guidelines unconstitutional? Well, the federal guidelines cases will be coming fast and furious. Want to insist on federal judicial supervision of detention at Guantanamo? Every single appeal of the denial of habeas relief is coming your way soon. Want to revive the Second Amendment and recognize a right to gun possession in the home? The gun possession in public cases are right around the bend. Want to redefine marriage? The cases that ripple out from that intervention will be on your desk later this year. And so on.
There is no guarantee that jurisdiction stuffing would have the effect of putting the brakes on doctrinal change in constitutional law. Depending on how it is drawn up, mandatory jurisdiction over certain cases could end up replicating in practice the virtually unfettered discretion that exists under current certiorari practice. Before the elimination of mandatory appellate jurisdiction in a certain set of cases in 1988, for instance, the Court summarily disposed of many many cases without engaging in plenary review. And even if the Court were to grant plenary review in all the stuffed cases (perhaps because Congress figures out a constitutional mechanism to make that happen), there is also the risk that the Justices will use these opportunities to make even worse constitutional law. At some point, though, one needs to count on the fact that reason-giving practices and public scrutiny and the loss of legitimacy that would come from more blatantly smudging the law-politics boundary would bring the Justices back to operating in more of a judicial mode.
Even if jurisdiction stuffing were to have the desired effect of putting the brakes on change in constitutional law, that effect is not always desirable. When and where constitutional doctrine is in truly bad shape, the Supreme Court should be willing to overrule it and should not be unduly deterred by transition costs. But this consideration can be addressed, among other possible ways, through the criteria for identifying cases where jurisdiction should be stuffed. Consider, for instance, the difference between mandatory appellate jurisdiction in the Supreme Court for all cases in which a government, government agency, or government official appeals to the Court from any adverse constitutional ruling or, instead, just from any adverse constitutional ruling about, say, the Establishment Clause.
Insofar as history provides a guide, the lesson seems pretty clear that agenda-setting authority at the Supreme Court has contributed to the expansion of the domain of federal constitutional law. As Edward Hartnetthas powerfully argued, the Supreme Court may not have constitutionalized state criminal procedure (among other areas) if the result of doing so would have been a massive increase in the Court's workload. While the transformation of the Supreme Court and its role in American government that took place last century had many causes, one undeniably important change was the expansion of the Court's discretion to decide or decline to decide that took place with the Judiciary Act of 1925. (Reading Hartnett's article on that legislation crystallized for me the worth of considering the potential effects of jurisdiction stuffing.)
There is no going all the way back, of course, nor should one want to. The Supreme Court unquestionably needs some measure of discretion in case selection. But they probably have too much discretion right now. And one way to stop the Justices from going where they ought not to go as a matter of substantive constitutional law is to force them to move faster if they are to move at all. In at least some doctrinal areas, the Court can run at the same pace their decisions set for other courts. And they should have to; they are supreme, but they are also still a court.
One of the surprises of my first year of law school was learning that my real but still tentative faith-based opposition to the death penalty might prevent me from serving on a jury in a capital case. The idea of a death-qualified jury clashed with my notion of a jury of one's peers.
I've come to learn that an adherent to current Catholic teaching on the death penalty would not necessarily be excluded from a death-qualified jury. But I remain troubled about the idea of death-qualifying a jury.
[S]ome commentators have argued that Justice Ginsburg’s concurring opinion does not ground the third-party harms doctrine in the Establishment Clause. But they protest too much. Justice Ginsberg cites to her dissenting opinion in Hobby Lobby, which in turn relies explicitly upon Establishment Clause precedents inEstate of Thornton v. Caldor and Cutter. In applying the RFRA and RLUIPA balancing tests, an important reason why the state has a compelling interest in avoiding exemptions that cause substantial harms to third parties is because the Establishment Clause requires it to do so. That is the lesson of Cutter, and in Holt, Justice Ginsburg reminds us of its continuing significance.
Some points in response:
(1) The "third-party harms doctrine" is a term coined by these scholars, not one that Justice Ginsburg or anyone on the Court has used. It’s not the term I would prefer to use to describe the kind of analysis used by the Court in Caldor and Cutter. A more precise label would be something like the “no unyielding weight doctrine.” See Cutter (explaining that "[w]e held the law invalid under the Establishment Clause because it 'unyielding[ly] weigh[ted]' the interests of Sabbatarians 'over all other interests.'") (quoting Caldor). But whatever.
(2) Justice Ginsburg would have made the same type of third-party burdens argument in the application of RFRA and RLUIPA if there were no Establishment Clause and if neither Caldor nor Cutter had ever been decided. The argument would take the form it took in United States v. Lee(decided three years before Caldor) or in Justice Jackson’s opinion in Prince v. Massachusetts (decided before the Establishment Clause was incorporated). We know this because Justice Ginsburg already relies on these cases, and these cases do not rely on Caldoror Cutter. See alsopart I.B.1 of the scholars' own amicus brief ("The Court’s mandatory accommodation decisions under the Free Exercise Clause reflect the same aversion to cost-shifting exemptions as its Establishment Clause decisions.") (emphasis added).
(3) This reliance on non-Establishment Clause cases in Justice Ginsburg’s opinions was part of the argument I offered in my interpretation. These scholars did not address it. Instead, they supported their “protest too much” claim by pointing to a feature of Justice Ginsburg’s opinions that I already addressed--its citation of some Establishment Clause cases. But as Marc and Rickand others have argued, one need not and should not understand Caldorand Cutter as providing a basis for freestanding Establishment Clause objections to accommodations required by RFRA. Cutter held that RLUIPA does not, on its face, violate the Establishment Clause because it does not provide for the unyielding weighting of religious interests over non-religious interests (as the Supreme Court understood the uncostitutional statute in Caldor to have done). In this respect, RFRA is just like RLUIPA. Both statutes, on their face and therefore as properly applied, require courts to take account of other interests in the application of strict scrutiny. One such interest may be in avoiding harm to third parties.
(4) When courts, properly applying RFRA, account for potential harm to third parties, they do so in applying a feature of the statutory strict scrutiny test. This feature that they apply insulates RFRA from a Caldor claim, as Cutter holds. But to say that courts consider third-party harm as part of the compelling interest test because of the Establishment Clause is to confuse a statutory feature that defeats an Establishment Clause claim with a reason for applying a statutory requirement that needs no reason to be applied other than that it is in the law. (As Schragger, Schwartzman, and Tebbe know, moreover, the compelling interest test is in RFRA because it was in prior Free Exercise jurisprudence, not because of anything stemming from the Establishment Clause.) And when courts consider third-party harms in applying RFRA's compelling interest prong, the relevant compelling interest is not avoiding an Establishment Clause violation. (RFRA already does that by authorizing substantial burdens on the exercise of religion when strict scrutiny is satisfied.) The relevant compelling interests, instead, are whatever interests the the government claims to be advancing in the regulatory scheme from which the religious believer seeks an exemption.
(5) If ever a debate were “academic” (as some use the term pejoratively), this would be it. I posted about a narrow disagreement with Rick and Marc to stir the pot a little bit here at MOJ. Because it’s not healthy (and not interesting) for us always to agree on everything, it’s helpful to occasionally flag disagreements, especially on points that may be of interest to law nerds like me and are disputed by others. To be clear, though, a two-sentence concurrence on behalf of two Justices who dissented in Hobby Lobby is not a “significant statement.” (If Justice Ginsburg's concurrence is a "significant statement," is it significant that Justice Breyer and Justice Kagan did not join it (just like they did not join Justice Ginsburg's analysis of RFRA's alleged non-coverage of Hobby Lobby in Hobby Lobby)?) Nor does such an opinion necessarily imply that a particular "doctrine" is alive and well. (For example, Justice Thomas's understanding of Establishment Clause non-incorporation is not "alive and well" in Supreme Court doctrine even though it has appeared in the U.S. Reports.)
(6) For actual significance, consider instead the unanimous Court’s confirmation of the correct approach to substantial burden analysis and its application of “exceptionally demanding” strict scrutiny.
Now, I suppose, I actually do “protest too much.” I offer no defense, but instead plead guilty because charged.
On the smaller side of things, I learned a new word, "blatherskite." (The word's meaning reminds me of Marc's immediately preceding post, in which Dickens has a character observe about another that "the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them.")
More to the point of my purpose for perusing, I came to appreciate how repitition of today's conventional academic wisdom about Lochner may unknowingly reflect the triumph of a claim advanced by Theodore Roosevelt in an underappreciated instance of popular constitutionalism. According to Nourse, "the great irony of Lochner is that an essentially political critique, [Theodore] Roosevelt’s strong-rights view, has become the 'doctrinal' understanding of the case."
Today's March for Life seems as good an occasion as any to share this portion of Justice Scalia's dissent in Planned Parenthood of S.E. Pa. v. Casey blasting the plurality's assertion that the Court needed to be even more unwilling than normal to reconsider precedent when that precedent has been the object of intense national controversy:
[T]he notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at 6; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition--then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change--to show how little they intimidate us.
To assess this disagreement, one needs to follow Justice Ginsburg's Holt citations to her Hobby Lobby dissent: "See [Hobby Lobby], at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting)." {BTW, gotta love these Supreme Court citation conventions! See ___ (gratuitous personal op. at _:);)_).}
Justice Ginsburg's position in the cited portions of her Hobby Lobby dissent is that consideration of third-party burdens is part of the appropriate application of RFRA and RLUIPA. She does not adopt the view that these burdens could give rise to a freestanding Establishment Clause limitation on what would otherwise be required by those statutes. True, the Holt-cited portions of Justice Ginsburg's Hobby Lobby dissent do rely on Cutter v. Wilkinsonand Estate of Thornton v. Caldor, which are Establishment Clause cases. But they also rely on Wisconsin v. Yoder and Prince v. Massachusetts, which are not.
Footnote 25 of Justice Ginsburg's Hobby Lobby dissent (not cited in her Holt v. Hobbs concurrence) most directly addresses the influence of the Establishment Clause on RFRA/RLUIPA analysis. It opens with the statement: "As the Court made clear in Cutter, the government's license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause." But the closing sentence relies on United States v. Lee, which was neither a third-party burden case nor an Establishment Clause case: "[O]ne person's right to free exercise must be kept in harmony with the rights of her fellow citizens, and 'some religious practices [must] yield to the common good.' United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)." This is consistent with the position set forth in the Chapman brief, which is that Cutterinterprets RLUIPA (and RFRA, by extension) to incorporate consideration of third-party burdens into the application of the statutorily required strict scrutiny.
If this reading of Justice Ginsburg's opinion is correct, then Justice Ginsburg actually agrees both with Rick that "the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry," and also with Marc, that "the strict scrutiny standard of RLUIPA and RFRA, if 'properly appl[ied],' itself incorporates the Establishment Clause limits raised by cases like Thornton."
The J. Reuben Clark Society and Career Development Office here at the University of Richmond School of Law hosted an excellent lecture yesterday by Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit. The flavor of the lecture can be seen in its title: A Constitution We Are Confounding: Some Observations on the Constitution as Written and the Constitution as Taught.
At the risk of oversimplification, the basic claim of the lecture was that the case method of teaching initiated in the last few decades of the nineteenth century, together with a judge-centered understanding of constitutional law traceable to Marbury v. Madison, have underwritten a "common law" way of teaching constitutional law that slights the writtenness and legal fixity of the Constitution.
In reflecting on Judge Bybee's historical narrative, the case method seems more to blame than Marbury. In my view, formed largely by Christopher Wolfe's insightful arguments in The Rise of Modern Judicial Review, the practice that we now call "judicial review" is different in important respects from the practice engaged in by Chief Justice Marshall.
One piece of evidence for this claim of partial discontinuity is terminological. As Mary Sarah Bilder has explained, it was not until the early twentieth century, through the writings of Edward Corwin, that "judicial review" became the standard term for the practice of refusing to apply unconstitutional statutes as law in the course of deciding a case.
The achievement of Corwin of perhaps the greatest interest for Catholic legal theory is his influential mangling of the relationship between natural law and American constitutional law. Corwin developed and evangelized an account of natural law "under the skin" of the Constitution that collapses the natural law into a misunderstood version of the common law and ends up in ignoring the written Constitution as positive law. My Richmond colleague Gary McDowell, criticizing "Corwin's corrosive constitutionalism" has described the result of this thinking:
[A]ppeals intended to square the Constitution with the demands of natural law will be made through the courts. The result will be for judges to create judicial doctrines derived from what they perceive to be the dictates of natural law by Corwin's "rugged massage" of the Constitution's text. To believe, Corwin said, that "judicial review is confined to the four corners of the written Constitution" does no justice to the influence of "natural law ideas" on judicial review.
This past summer, Marc DeGirolami linked to Allan Beever'sThe Declaratory Theory of Law. I recently had occasion to read another piece by Professor Beever: Formalism in Music and Law. The concluding section touched a chord, so to speak, such that I thought I would pass it along to MOJ readers. Here's a bit:
Of course, music has its functions. Its most significant function is to give pleasure to listeners. But its ability to do this would be almost entirely eliminated were listeners to attend to its function rather than its form. The final movement of Mozart’s Symphony no 41 in C Major, K 551 contains the most breath-taking combination of sonata form and fugue. This astonishing achievement can afford us enormous pleasure. But a ‘listener’ who focused on her own pleasure would fail to hear it and would in all likelihood be bored. Music is cognitive. It does not work like drugs and its effect on us is not the same as its effect on cows (apparently, cows produce more milk when they are played classical music).
Of course, no such argument can be constructed for law. The law is not justified as an object of contemplation. But there remains an illuminating analogy here. Part, only a small part, of the value of law flows from its being an object of contemplation. In a very similar way to music, it enriches the lives of many lawyers. Do we not sometimes revel in the law’s intricacies and delight in its complexities? Is it not true that much of the pleasure of studying the law comes from such? Can we not describe law as, in some way, beautiful? If that sounds just too outlandish, it is worth remembering that many mathematicians swear that mathematics is beautiful and frequently compare it to Bach’s music. If mathematics can be beautiful, surely anything can be. These questions are not rhetorical. Those who hold that legal categories are a mere smokescreen for policy must answer them in the negative. For them, the canvas of the law is really a window to be seen though. They appreciate law as the owners of cows appreciate music (‘Yay, more milk. Isn’t Mozart great?’).
***
*** What does contemplation of the law reveal? The law, of course. But that is not all. When we treat it as an object of contemplation in its own right and not as a window to be seen though, it also reveals justice. And we are in desperate need of this. *** [W]e are so powerfully affected by functionalism that many of us cannot see the world beyond it. It is no surprise, then, that many want to look through the law to its alleged functions. But just as contemplation of art can change the way that we see the world, so can contemplation of the law. It is often rightly said that wheat fields never look the same after one has seen van Gogh’s paintings of wheat fields; and, to one captured by functionalism, the world will never look the same again after attending to the law. That contemplation is possibly the most powerful experience of justice as a pervasive phenomenon that it is possible to have.
A three-judge panel of the United States Court of Appeals has unanimously affirmed a district court decision holding unconstitutional one portion of North Carolina's informed consent for abortion requirements. The provision held unconstitutional by the panel required a doctor to perform a pre-abortion ultrasound, to display the images to the pregnant woman (unless she chose not to view), to explain what the display shows (including "the presence of external members and internal organs, if present and viewable"), to offer an opportunity to hear the fetal heart tone, and to obtain and keep a certification that these requirements were followed. The Fourth Circuit panel analyzed the provision as a compelled speech requirement and held that the provision failed intermediate scrutiny. Judge Wilkinson wrote the opinion for the court in Stuart v. Camnitz, in which Judge Traxler and Judge Duncan joined.
Like many, I have read reports about the recently released Senate report on torture, but have not read the report. And if I were to read the report, I'm sure that I would have many questions that remain unanswered. But in thinking about the issues raised by the reports, it helps to be as clear-eyed as possible about the immorality of torture as an intrinsic evil. An act that is intrinsically evil is one that is never permissible, regardless of its circumstances.
The relationship between intrinsic evil and the criminal law is complicated. So, too, the relationship between moral judgment and the judgment of history. For a stringent take on both, though, one can turn to Lord Acton. I have included below some selections from his letters, which can be viewed in context at the Online Library of Liberty's page, Acton on Moral Judgment in History:
No doubt the responsibility in such a case is shared by those who ask for a thing. But if the thing is criminal, if, for instance, it is a licence to commit adultery, the person who authorises the act shares the guilt of the person who commits it.
Here again what I have said is not in any way mysterious or esoteric. It appeals to no hidden code. It aims at no secret moral. It supposes nothing, and implies nothing but what is universally current and familiar. It is the common, even the vulgar, code I appeal to.
I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.
Here are the greatest names coupled with the greatest crimes; you would spare those criminals, for some mysterious reason. I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.
Quite frankly, I think there is no greater error. The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History.
If we may debase the currency for the sake of genius, or success, or rank, or reputation, we may debase it for the sake of a man’s influence, of his religion, of his party, of the good cause which prospers by his credit and suffers by his disgrace. Then History ceases to be a science, an arbiter of controversy, a guide of the Wanderer, the upholder of that moral standard which the powers of earth and religion itself tend constantly to depress. It serves where it ought to reign; and it serves the worst cause better than the purest. . . . My dogma is not the special wickedness of my own spiritual superiors, but the general wickedness of men in authority—of Luther and Zwingli, and Calvin, and Cranmer, and Knox, of Mary Stuart and Henry VIII., of Philip II. and Elizabeth, of Cromwell and Louis XIV., James and Charles and William, Bossuet and Ken.
The greatest crime is Homicide. The accomplice is no better than the assassin; the theorist is worse.
Of killing from private motives or from public, from political or from religious, eadem est ratio; morally the worst is the last. The source of crime is pars melior nostri, what ought to save, destroys; the sinner is hardened and proof against Repentance.
Crimes by constituted authorities worse than crimes by Madame Tussaud’s private malefactors.
Murder may be done by legal means, by plausible and profitable war, by calumny, as well as by dose or dagger.
