Tuesday, July 29, 2003

No future for future market

Alas. I understand this was an opportunity for the Dems. to score points against the seemingly callous, hard-hearted, and political maladept administration. But, in my mind, DARPA's proposed future's market was a great idea, and one which we should not discard so likely.

Most of the opposition to the program arises from the "don't trade-off human life for money" moral heuristic. Cass Sunstein's protests notwithstanding, such moral heuristics make good sense when applied to, say, the judgments by jurors that a corporation's willingness to trade-off lives against safety ought to be punished. In that context, it is arguable that the jury's role is to distribute justice and positive social norms, not maximize economic efficiency. However, the ultimate aim of the proposed DARPA market would have been to maximize the amount of information we have about terrorists. This is a highly desirable goal, and we ought to carefully consider our moral heuristics, especially since we seem to be willing to relax all kinds of other prohibitions in the war against terror: (1) indefinitely imprison aliens and citizens who are working with the enemy; (2) assasinate enemy leaders, and accept mistaken attacks along the way; (3) torture (through, at the least, non-physical methods) enemy soldiers; and (4) holding hostage families of enemies. I don't know whether any of the above are moral choices, but they are more objectional, individually and in the aggregate, than allowing a few thousand people to bet against the house. People who bet on the terrorists will have their come-uppence sooner or later. Best yet, if truly catastrophic loss occurs, the debt will be uncollectable. Any objections should be practical ones. Tyler Cowen has an excellent post listing salient examples.

DARPA itself questioned whether it would be possible to use the market to stop terrorism. Their principal worry seems to be that it will be hard to design an efficient market that is explicitly subject to manipulation. That is, since the market knew that information gained would be used, wouldn't the smart bet be to short pro-terror bets as soon as they seemed mildly probable, on the theory that the government is watching? [And, since everyone knows that the smart long-bet is shorting terror, wouldn't decline in prices following a rise suggest that the market thinks that the government is acting, thus uncovering secret government projects].

There is an added risk to delegitimizing this program. Many legal scholars have advocated for increased use of cost-benefit like analysis by the government. If pseudo-CBA like the future's market are publically lashed, the CBA push will not go away, it will go underground. Where it will fester.

Monday, July 28, 2003

I take it back

Feddie should be blogging, in any role he wants: law clerk, citizen, lawyer, dad, or (we may hope) a replacement when soon-to-be Judge Pryor retires. I should have written him privately and given him the benefit of the doubt before slamming him in public.

Thursday, July 24, 2003

Toads, Toadies, and "General" Pryor

I couldn't resist that title, even though I think I've exhausted the topic of the toad's status as a potential article of commerce. Instead, I'll invite a flame or two by discussing the partisan vote, yesterday, by the Senate Judiciary committee to recomend Bill Pryor to the Senate floor. Unless the democrats fillibuster, it looks like Pryor is headed to a seat on the bench. Where, I must say, he will do much less harm than in his current position. After all, in a little noted fact that should be seen as centrally important in this debate, he is getting nominated to the 11th Circuit. He is in the mainstream there. He is supported by both of his homestate senators. What's the big deal?

Professor Adler, no fool he, sees the real downside of a successful fillubuster: the dems might have elevated Pryor, like Sessions before him, to be a conservative hero, and given him a political boost in Alabama. Of course, Adler also says that Pryor is "a well-respected and well-liked state AG". It would probably have been prudent to qualify that Pryor is "well-respected" by people who agree with his substantive political positions, full-stop.

I have attempted, on this blog, to take the consistent position that the judicial nomination process is not a useful subject for posting. Basically, I see the nominating process as a larger version of the ultimatum game. The president cuts the pot. If he chooses a nominee who offers too little to the democrats, they reject the choice, disgusted at Bush's greedy attitude. Bush (and the republicans) take the attitude that such rejections are illegitimate because, in essence, he who can't cut shouldn't be choosy. I agree and I disagree. I think both players in the game are acting consistent with behavioral theory. To put it another way, everyone is doing what we would predict that they would. It follows, I think, that the overwhelming majority of those who criticize republican arrogance would vote democrat in the next election, and visa versa. Which means, at least to me, that most discussion on this topic is nothing other than saying, essentially, "hey, I'm going to vote for Kerry in a year and a half. But let me vent for a while now." Thus, when Feddie calls for war [scroll down to July 16] against the democratic party because of the way that they've obstructed the elevation of Pryor, we should not be terribly surprised.* I just don't find this discussion any more interesting than watching politicians make speeches to the empty Senate on C-Span.

But there are bigger issues to worry about that A.G. Pryor. For example, did the House of Represenatives really just pass a bill that would de-fund the judiciary if it tries to enforce the Alabama ten commandments decision? The press release says so. Such a bill seems plainly unconstitutional on its face on seperation of powers grounds. This is nothing like the jurisdiction stripping proposals which cause Fed Courts students such exam-grief. It is just the House, acting the fool, again. But on further consideration, I wonder who would have standing to challenge such a law. The plaintiffs in Glassroth? The Chief Justice (now *that* would be interesting)? Director Reyna?

P., comments?

*To be honest, that over the top post of Feddie's has really troubled me. I'm sorry to say that it led me to conclude that it really is not appropriate for law clerks to maintain blogs in which they discuss the judiciary.

Wednesday, July 23, 2003

A Troubled Toad

The site you reference describes the troubled arroyo toad as previously thought of merely as "nocturnal [and] nondescript". But more recent researchers have appreciatively noted the arroyo's "musical trill", "which it uses to find mates" [what else]. And, as you no doubt were unaware, the arroyo is one of the "few true toads". The others are obviously frogs with identity issues brought about by global warming.

Isn't it weird that local populations of such unique creatures are said to be outside of the ambit of federal commerce clause protections, while widely spread, more populace, commonplaces like the white tailed deer can be regulated to the ends of the earth?

1. On your first question, I would recommend Mother Jones, but I think it might be too far left for you. It is too far left for me, at any rate.

2. I will look forward to your post of state courts and textualism. I think I'll take our countdown to destiny as an opportunity to relax our rule about judicial nominations, with a bit of a discussion about the Pryor nomination and the next member of the nine.

3. If you have time, I'd like you to read this and tell me what you think about it, from your more religious perspective.
Some Coming Attractions

PLAINSMAN: I don't want to stir up any more trouble with the arroyo toads, which this site describes as "nocturnal, nondescript" creatures. Instead here is a preview of some posts I'd like to put up in the next nine days, as Sub Judice's countdown to destiny continues:

1. Observations about the national periodicals I subscribe to or purchase, which include (inter alia) First Things, Chronicles, National Review, The Atlantic, The New Criterion, and Food & Wine. I also want to solicit readers' suggestions as to which left-leaning weekly or monthly publication I should subscribe to. (I already buy Commonweal on occasion.)

2. A finished version of my long-incomplete post about state courts and textualism.

3. Thoughts on Grutter v. Bollinger.

* * *

On politics and blogging

I recommend this quasi-eulogy about Blair on Slate. Kinsley misses, I think, the real reason why Blair is articulate and inspiring: part of his job is to convince his fellows extemporaneously during Prime Minster Question Time.

I haven't blogged for a while, mostly because there has been little I've been inspired to write about. Your Commerce Clause post, below, ties up some of the themes we raised earlier this year about facial challenges before and after the 1990s; but I found your discussion of toads to be less convincing, in part because I find it hard to imagine a world without the arroyo toad. P, are you suggesting that the poor Arroyo get off its butt, get on a plane, and start hawking its legs?

I still have not decided about the fate of this blog in your absence. Your excellent recent posts, however, remind me what I'll be missing. Howard too.

Tuesday, July 22, 2003

Remember the Appellate Name Game?

PLAINSMAN: Longtime readers (by Internet standards) will recall the tolerable fun we had a while back with "SELYA, BLACK, and COFFEY, Circuit Judges" (that one was Mr. Poon's); "BRIGHT, WINTER, and STARR, Circuit Judges"; and the like.

Today Howard notes that "SMITH, SMITH, and SMITH, Circuit Judges" is a theoretically possible panel. 3d, 5th, and 8th Circuits.

Insert Matrix joke here.

* * *
Judge Dave and the Arroyo Toads

PLAINSMAN: Hello, all; I'm back from a short, enjoyable out-of-state excursion.

There's some Commerce Clause news today from the D.C. Circuit. In concise opinions, Judge David Sentelle and Judge John Roberts (welcome!) each dissented from the denial of rehearing en banc in Rancho Viejo v. Norton. (Link via Howard Bashman.)

The panel opinion in Rancho Viejo upheld, against a Commerce Clause challenge, a federal regulation that prohibited a developer from "taking" or otherwise messing with the arroyo toad, a non-migratory, purely local species that has no commercial value. (I suspect it is highly valued by arroyo toads, however.) Apparently the panel's theory was that the regulation was effectively a regulation of commercial development activity, not of the "taking" of toads, and that this ostensibly commercial activity had a substantial effect on interstate commerce, and was therefore regulable under Lopez. The panel's decision conformed to a 1997 circuit precedent (NAHB v. Babbitt) to the same effect.

Judge Sentelle's dissent from denial of en banc argued that the circuit's law is inconsistent with Lopez and Morrison. It can't be the case that a noncommercial activity is subject to federal regulation when performed by a commercial actor, while the very same activity is nonregulable if performed by a noncommercial actor.

This is, indeed, a crucial fork in the exegesis of the Commerce Clause. The same issue popped up in the important Supreme Court case of Solid Waste Agency v. U.S. Army Corps of Engineers (2001). There the majority construed an enviromental provision that authorized federal regulation of the "navigable waters of the United States" as not authorizing the regulation of purely intrastate ponds and puddles frequented by migratory birds. Thus the victory went to a municipal corporation which sought to construct a disposal site on a federal "migratory bird" site.

This statutory interpretation was partly motivated by constitutional concerns: the Court thought it seriously questionable that the Commerce Clause would permit such regulation. The four dissenters, however, argued in part that the regulation was really a regulation of the disposal site's activity. As such, it regulated a commercial activity, which was subject to "aggregation" under Morrison, and was therefore OK under the Commerce Clause. This is very much like the D.C. Circuit's argument in NAHB and now Rancho Viejo, at least as Sentelle tells it. The Supreme Court's implicit rejection of this view in (I'll just say it one more time) Solid Waste Agency suggests that the D.C. Circuit's decisions in NAHB and Rancho Viejo may have rested on a false premise.

Judge Roberts took basically the same view in his dissent. But he added an interesting legal argument: that Lopez and Morrison must be read as having squarely rejected the panel's notion that the constitutionality of federal regulation may turn on whether a commercial or noncommercial actor performs an activity. This is so, Judge Roberts argues, because Lopez and Morrison were successful "facial" Commerce Clause challenges. Under current constitutional doctrine, he contends, a facial challenge can succeed only if the challenged law is invalid in all its possible applications (citing United States v. Salerno (1987)). But if the panel's emphasis on the commercial/noncommercial identity of the actor were actually relevant, then Lopez and Morrison would not have come out the way they did. Some applications of the challenged statutes in each case would have been constitutional (e.g., bringing a gun to school to further one's drug dealing business; or beating up women to further an extortion ring), so, under Salerno, the constitutional challenges would have failed.

This is quite thoughtful. I think it suggests what a boon it will prove to have Judge Roberts sitting on the nation's second-highest court. But in truth, Judge Roberts's argument is hard to assess, because we have no idea what the current law of facial challenges is. It's a mess. The constitutional law academy is rife right now with scholars trying to bring some sort of order to the proceedings. Salerno did indeed seem to announce a binding rule, but that rule has since been honored in the breach as much as in the observance. It's kind of like the Lemon Establishment Clause test: Salerno gets cited when the Court wants the facial challenge to fail; it goes uncited when the facial challenge wins.

In particular, the Supreme Court's abortion cases have notoriously undermined the Salerno rule, invalidating on their face statutes that were obviously constitutional in some of their applications. Stenberg v. Carhart (2000) is a recent example. And the Court's recent Commerce Clause cases are just plain opaque in this respect. The Court hasn't figured out how to think about enumerated-powers challenges in the traditional facial/as applied terms, so it doesn't. Instead it talks about the legislative "presumption of constitutionality," and encourages Congress to include jurisdictional hooks in federal statutes, which tend to convert as-applied constitutional challenges into less dramatic questions of statutory interpretation, if you get what I mean.

The lower courts are equally ill at ease. Readers will recall that one of the points of contention between Judge Reinhardt and Judge Trott in U.S. v. McCoy (9th Cir. 2003), was whether it was appropriate to uphold McCoy's challenge to the federal child-pornography possession laws as an "as applied" challenge.

I do not have an answer to this muddle yet. If forced to guess, I suspect that we are moving toward a new doctrine of facial challenges in which it is sufficient, at least in some areas of constitutional law, for the challenger to show that a "substantial majority" of the statute's applications are unconstitutional. I just made that standard up off the top of my head.

Nevertheless, Judge Roberts' legal argument from Salerno is reasonable. It's up to the Supreme Court to overrule or limit its own cases.

* * *

Wednesday, July 16, 2003

"What's Wrong With a Novel Having a Virtuous Heroine?"

PLAINSMAN: Why isn't Whit Stillman's Metropolitan (1990) available on DVD yet?

Such a great film. The Amazon.com reviewer makes the usual mistake: he thinks Stillman is engaged in a "stinging" and "cynical" sendup of these silly preppies and debs. No, he does think they're funny, but he thinks "sophisticated" film critics are even funnier. Stillman respects his characters and their WASP milieu, and his surface irony (which is very deft) is, paradoxically, a way to ease the viewer into something more substantial.

Austin Bramwell, of Ex Parte fame, published a nice essay about Metropolitan and Stillman's other films in First Things last year.

I tend to prefer Bramwell on literary and artistic stuff to Bramwell on law or politics. For example, he has mercilessly and effectively ridiculed Herbert Muschamp, the NY Times' architecture critic, on more than one occasion.

Perhaps we'll see his byline one day in the New Criterion.

* * *

Tuesday, July 15, 2003

A Response to P's News

P's news today is no surprise to me. It is sad, as I have very much enjoyed being able to air our differences, and celebrate our agreements, in this forum.

I am undecided about continuing to blog in the absence of P. The blog would no doubt suffer in quality and quantity if I went it alone. However, we have invested some time in this project, and it would be a shame were the blog simply fade away. On the other hand, I might be able to focus on improving my productive time at work.

I would appreciate our readers' thoughts.

Some Personal News

PLAINSMAN: After that rather long-winded post, I have some bittersweet news to tell you all. I will be leaving my current job in a few weeks to accept a job with the government, and I will no longer be able to keep blogging about legal matters. I've chosen August 1, 2003 as my last day of blogging here. The future of Sub Judice after my departure is currently up in the air. In fact, it lies in the hands of D.

Howard Bashman and other bloggers have engaged in a lively discussion recently about whether, and when, various ethical rules and policies restrict government employees from blogging about the law. I know that Steph at the Blue Blanket Blog, who is an appellate litigator for the EPA, has had to do a good deal of wrestling with these issues.

Without going into details about my future employment, I will say that my decision is based not so much on a specific rule or policy as on my own sense of what's appropriate and comfortable. Already in my present position, I've often refrained from commenting on certain topics for job-related reasons. In my future job, this will be considerably more true, to the point where it's probably best to abstain.

Man. Just typing "abstain" makes me realize how much I'll miss the intellectual stimulation of our readership, of other bloggers, and of my man D. (thankfully, he'll remain a phone call away). I will probably get even more choked up when my final blog day arrives. But for now we've still got a couple of weeks left.

I haven't even blogged about Grutter yet!

PS: While I am seriously excited for my future job, I will disclose that, alas, it is not the same job for which Prof. Kerr recently departed the Volokh Conspiracy.

* * *

The Nevada Case and the Guarantee Clause


Most of you have probably been following the story of the Nevada Supreme Court's strikingly incorrect decision in Guinn v. Legislature. Eugene Volokh has been all over it, and rightly so.

To recap, the court granted permission to the legislature to ignore a duly enacted provision of the Nevada Constitution (art. 4, sect. 18(2)) that requires a 2/3 supermajority to pass new taxes. The Nevada legislature is currently at a budget impasse, and in the court's mind, the supermajority provision unduly interfered with the operation of an earlier-enacted constitutional provision that requires the state to maintain public schools. The court told the legislature that it could enact valid tax increases using a simple majority vote, contrary to the plain requirement of art. 4, sect. 18(2). Only one justice dissented.

Now, it is basic that (a) absent Supremacy Clause problems, state constitutions are the supreme positive law of each State, which the State's courts are obligated to enforce unless constitutional provisions conflict; and (b) later-enacted provisions trump earlier-enacted ones in case of a conflict. To make things worse, in this case, as far as I can tell, the Nevada constitution's supermajority provision and its public schools provision do not even conflict -- it may be practically disruptive to fund the schools under the 2/3 requirement, but it is entirely possible. For all of these reasons, the Nevada Supreme Court's decision is certainly wrong.

The rationale the court attempted to offer for its decision was: "[w]hen a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield."

But that's not so. Especially not if the "procedural" supermajority requirement (which, as Eugene points out, actually provides Nevadans with a substantive protection against unwarranted tax increases) was enacted by the Nevada voters after the "substantive" requirement was already on the books!

Anyway, the question is what to do about this shocking decision. Amending the state constitution is one avenue -- perhaps quixotic in light of Guinn. Eugene and others have pointed out that Nevada law includes fairly powerful procedures allowing for the popular recall of judges.

In any case, I agree with Eugene that a state-level, popular response to Guinn would be the best outcome. Nevadans, please don't put up with this! American judges are part of legitimate governance because they know and apply the law. They are not archons with arbitrary powers to make wise dispensations. You have the legal means to remedy this situation. Use it or lose it.

While I would prefer a local solution, some of the aggrieved parties have taken the case to federal district court. They seek to enjoin the legislature from carrying out the decision in Guinn. I am not thrilled with this tactic, both on federalism grounds and because it seems part of the general "let the courts fix it!" response to most problems in American life these days. Nevertheless, the plaintiffs have already succeeded in winning a temporary restraining order from the federal district court.

It's interesting to contemplate the federal constitutional merits of their case. In particular, I want to see how far one could get in arguing that the plaintiffs have stated a claim under the Guarantee Clause of the U.S. Constitution, Article IV, sect. 4, which states that the United States shall "guarantee to every State in this Union a Republican Form of Government." (If you want to see how the plaintiffs approached this issue in their TRO memorandum, it's here, at pp. 7-8.)

The plaintiffs in the principal federal litigation have sued the legislature, not the Nevada Supreme Court (there is a separate lawsuit pending against the judges). They assert three claims:

First, that by enacting taxes according to simple majority vote (the unconstitutional procedure that Guinn authorizes), the legislature as a whole will dilute the votes of the legislators who would oppose the new taxes, their constituents, and the voters who supported the now-nullified constitutional supermajority requirement, all in violation of the 14th Amendment's equal protection clause. (The plaintiffs' memorandum cites the per curiam majority opinion in Bush v. Gore as an authority for this claim.)

Second, that by levying new taxes through a procedure that is plainly contrary to the Nevada Constitution, the legislature is depriving Nevadans of property without due process of law, also in violation of the 14th Amendment.

Third, and most interestingly, that by flouting a clearly valid, popularly enacted provision of the Nevada Constitution, on the authority of the Nevada Supreme Court's opinion in Guinn, the legislature is violating the Guarantee Clause.

Eugene has repeatedly expressed the view that the plaintiffs' federal constitutional claims are not going anywhere. "The federal courts have pretty consistently held that, outside some very narrow areas, the state courts are the ultimate expositors of state constitutions and state laws; the argument that 'The state courts improperly interpreted their own constitution' just doesn't work in federal court. Such misinterpretations are generally ... not Due Process Clause violations," he writes.

In general you can do a lot worse than to defer to Prof. Volokh's judgment in these matters. I'm not sure enough of my grasp of 14th Amendment voting doctrine to opine on the plaintiffs' due process or equal protection claims.

However, there is some precedent for the view that in rare circumstances the state courts are not "the ultimate expositors of ... state laws," especially when there is a specific structural provision in the federal constitution that seems to require federal supervision in these matters. To me the interesting parallel between Guinn and Bush v. Gore is not a parallel with the Bush per curiam opinion, which invoked the equal protection clause. Rather, it's with the separate concurrence of Chief Justice Rehnquist, joined by Scalia and Thomas.

I have always found the concurrence stronger than the majority opinion, even though seven Justices embraced the majority's EP analysis. Indeed, in my mind, the concurrence is what Bush v. Gore really stands for, for good or ill. The Chief Justice interpreted Article II, sect. 2 of the Constitution to require the Supreme Court to intervene when a state court issues a manifestly incorrect interpretation of the state's laws governing Presidential elections. And the opinion's critical passage also makes reference to the Guarantee Clause. It reads:

"In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. ... [I]n ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, §4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them."

Interesting, eh? Now that's hardly a square-on endorsement. The Chief doesn't say that the Guarantee Clause, like Article II, could produce "exceptional cases" that require the federal courts to strike down usurpatious state court decisions. But the conspicuous citation of the Clause (by both article and section) in this, the critical passage of the concurrence, could easily be read to imply so.

Indeed, you might draw from the Bush concurrence the following meta-rule: it is proper for federal courts to engage in limited review of state law decisions by state courts when necessary to enforce a specific structural clause of the Constitution. The Guarantee Clause is arguably such a clause.

Of course, the big problem with this reasoning is that a number of old Supreme Court cases suggest that the Guarantee Clause is nonjusticiable. That is, whether a State's government was "republican" in form was seen as fundamentally a "political question," not a problem for the courts. See, e.g., Luther v. Borden (1849).

I must say I tend to be dissatisfied with arguments that certain plain textual provisions of the Constitution are judicially unenforceable. Rubs me the wrong way. Once you accept Marbury v. Madison and judicial review, then it seems to me the courts should apply the whole document, not just selected parts of it. If the Guarantee Clause is unenforceable on "political question" grounds, why not the Commerce Clause, too? Or if that prospect doesn't disturb you, why not the 14th Amendment's equal protection clause, as applied in the Warren Court's "one man, one vote" cases? Eminently political!

But I digress. Quite apart from my views, more recent Supreme Court cases have placed the view that the Guarantee Clause is nonjusticiable into some question. The plaintiffs in the Nevada federal case are relying chiefly on some language in New York v. United States (1992), a landmark federalism case. In New York, the Court struck down, on Tenth Amendment grounds, the "take title" provisions of a federal statute that aimed to coerce state legislatures into passing certain regulations for the disposal of nuclear waste.

However, the plaintiffs had also asserted a violation of the Guarantee Clause. Interestingly, Justice O'Connor's opinion for the Court did not reject those claims on nonjusticiability grounds. It considered the merits. O'Connor noted that many scholarly commentators had suggested that the Clause should be judicially enforced. In the end, she held:

"We need not resolve this difficult question today. Even if we assume that petitioners' claim is justiciable, ... the Act ... can[not] reasonably be said to deny any State a republican form of government. ... Under [the Act], Congress offers the States a legitimate choice rather than issuing an unavoidable command. The States thereby retain the ability to set their legislative agendas; state government officials remain accountable to the local electorate. The twin threats imposed by the first two challenged provisions of the Act ... do not pose any realistic risk of altering the form or the method of functioning of New York's government."

So suppose that the Guarantee Clause is justiciable, and suppose that the language in New York and the concurrence in Bush v. Gore accurately describes its limits. That is, the Clause prohibits governmental actions, including state court decisions, that make state government officials "[un]accountable to the local electorate," or that "risk ... altering the form or the method of functioning of [the state's] government."

Isn't that what's going on here? The case has an unusal feature: the Nevada Supreme Court admitted that if given legal effect, the Nevada Constitution (adopted by the "local electorate") would prohibit the levying of taxes without a 2/3 supermajority. Well, the levying of taxes is a pretty darn central "function" of government. Yet the court ordered the legislature to ignore this constitutional provision, without providing a remotely convincing justification for doing so. If this practice is accepted, doesn't it risk substituting the courts for the legislature as the ultimate source of positive law in Nevada? True, judges in Nevada are themselves elected, not appointed. But at the very least, redistribution of the authority to amend the constitution from one elected body to another would count as an "alter[ation] of the ... method of functioning of [Nevada's] government," which New York suggests would violate the Guarantee Clause.

That's as far as I can take it.

Now, if there is a Guarantee Clause claim in Guinn, it must rest on a unique feature of the case. The idea that there's a federal claim every time a state court simply does a really bad job of interpreting a state law is a nonstarter; it would obliterate (rather than merely qualify, like the Bush v. Gore concurrence) the notion of state sovereignty in adjudicating state-law questions. But the Guinn court did come rather close to admitting that it was just refusing to apply a valid law. It presented its judgment as an outcome of constitutional interpretation, but its analysis was conclusory and its interpretive techniques were utterly nonstandard.

I might pose a question to Eugene, and our readers who think the plaintiffs have not stated a Guarantee Clause claim. Suppose the Guinn court had said, in so many words, "despite its valid enactment, we are constrained to deny effect to art. 4, sect. 18(2) of the Nevada Constitution because the practical consequences of its supermajority requirement will be so negative." Would that give rise to a Guarantee Clause violation?

PS: Nevada's opposition briefs are also up now at the Claremont Institute website. I haven't had time to read them.

* * *

Monday, July 14, 2003

Watch This Space

PLAINSMAN: Tomorrow morning I'll have some news to report that will be of interest to readers of this blog -- at least those who haven't just put me on their blogger s*** list for dissing a niece's or cousin's name.

* * *
Wittgenstein on Names

PLAINSMAN: This is not a law-related post. I thought about putting it up at Drink Me, but posting's been slow around here, and the subject matter is a bit more serious than the usual fare at DM.

"Esperanto. The feeling of disgust we get if we utter an invented word with invented derivative syllables. The word is cold, lacking in associations."

-- L. Wittgenstein, Culture and Value

There's been a lot of stuff on the blogosphere in the past few weeks about baby names, this year's popular names, etc. There was an interesting recent Times article about naming trends.

Naming is a sensitive topic, and I offer my opinions with the serene confidence that I am going to offend someone. I apologize in advance.

My philosophy of naming is the one that I think is implicit in the Wittgenstein fragment above. Play it conservative. Your child's name, whatever else it is, is like his best suit, her nicest formal dress. It will be his or her calling card in all situations, formal and informal, at age 6 and age 60. You should pick it with weddings, graduations, and future press conferences in mind.

Thus, I think parents should have to overcome a really, really strong presumption in favor of tradition before they try to do anything cute or "unique" with kids' names. Stick with the Bible -- New Testament if culturally / religiously appropriate; Old Testament in any case -- or with time-tested, vernacular names appropriate to your actual genealogy: William, Edward, Sean (IF Irish), Antonin, Omar, Hidehiko, etc. (And see below.)

Paradoxically, I think I take this view because I really like names. I like to think about them, to see the old etymological roots in their syllables.

Thus, names with "funny" spellings drive me up the wall. Modern-day names like Britney (Brytney, Brittnee), Madison (Madyson), etc., etc., leave me totally cold. (Madeleine, on the other hand, while a bit played out, is still a "real" name -- see Magdalene, Magdalena, etc. -- as long as it's spelled with some sort of proper orthography.)

Underlying most of the contemporary bad names is a natural and decent feeling of parental affection. One senses the irreplaceable uniqueness of one's child, and wants to give him or her a name that will reflect that fact. However, the names reflect a typically mistaken modern conception of individuality. The truth is that rich and meaningful individuality takes place within something larger: a religion, a culture, a language, a history, an art, a science, a tradition. Unmoored from these things, we're just interchangeable bundles of consumer preferences, buffeted this way and that by fads.

So, I think, it is with names. If you name your daughter Sarah, people will not think she is just like every other Sarah. Rather, each individual who knows her will compare her to the other Sarahs he knows, past and present, marking the differences. Your daughter's personality will become part of what he thinks of when he hears the word "Sarah." Anybody who's been in love knows this about names.

When our hypothetical interlocutor reads about Sarah in the Bible, he might reflect for a moment on your daughter. If he finds some princesslike quality in your daughter, he may tie it, in a poetic caprice, to the magic of her ancient name.

You won't get that with "Kaylee."

ADDENDUM: More complex issues are presented by the improvised names (many of which seem to place the stress on the second syllable) that many African-Americans today like to give their children, especially their daughters. I recall Eve Tushnet saying that she is a big fan of these names. To be honest, I cannot agree; they almost always sound tinny and unpleasant to my ears. And I don't think my reaction reflects an improper ethnocentrism. The problem with "Shawanda" is the same as the problem with "Madyson": it's like Esperanto, improvised words without history. If black parents want to look beyond Biblical and Anglo-Saxon names for cultural reasons, I understand, but there are plenty of impressive real names in Swahili and Arabic to draw upon. "Cassius Clay" wasn't bad; but "Muhammad Ali" is very powerful, a good press-conference name. By contrast, the improvised names tend to sound flat and ersatz.

The complexity here, which I have to acknowledge, is that unlike the rest of us, African-Americans were separated from ancestral history and tradition in a uniquely cruel fashion. Thus, the spate of improvised names might be viewed as an attempt to develop a tradition, sowing a crop of names, some of which may flower a couple of centuries down the road and become "real" in the sense I'm using here. That's entirely fair. I will just observe that, in the pragmatic here and now, names do make a difference, and many people respond more positively to an ancient name (of whatever culture) than to a name-of-the-day. The mind's ear can hear the centuries of use, at some subconscious level. Wittgenstein's point.

* * *
A Bit More on Lawrence and International Law

PLAINSMAN: D. has said more or less what I wanted to say about the international law dimensions of Lawrence v. Texas.

Like him (but more so), I was put off by Prof. Balkin's weirdly nasty and unconvincing outburst, to the effect that people like me are in need of psychoanalysis (his words: "visceral fear," "xenophobia," "bitterly," "No-Nothingism," "poisonous," "strike out ... by blaming" -- it wasn't a very long post, either), simply because we value some of the unique features of American society more than Balkin does, and we are deeply skeptical of American constitutional courts that make opportunistic invocations of legal norms crafted by unaccountable foreign jurists. Do you remember that point I made a couple of months ago, D., about certain liberals being appallingly quick to pathologize those who disagree with them? Prof. Balkin has provided an illustration of what I meant.

It's worth pointing out that in practice the "customary international law" gambit always pulls things in a more secular, atomized, social libertarian/economic welfare-state direction. Explicitly worded international treaties signed by the United States are one thing -- the Constitution makes them the law of the land. But "customary international law," especially in academic hands, often just looks like another liberal ratchet, to be invoked as necessary when a court can't get to a certain result using traditional legal materials. And actually, the use of international law in Lawrence wasn't even that intellectually respectable -- Kennedy, purporting to interpret the U.S. Constitution, stooped to citing a European court interpreting a European statute. Not convincing.

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Tuesday, July 08, 2003


International Precedent

I see there is a tide of discussion among law blogs about Kennedy's citation to the European Human Rights Court. See, e.g., NRO; Solum; Balkin. The NRO essay, which pretty much everyone I read criticized, essentially says that Lawrence is the beginning of the end for American jurisprudence. Not so, says Solum, citation like this is extremely common. And Balkin adds that not only is it common, it is righteous reciprocity - after all, the Canadian supreme court cites us.

Both Solum and Balkin appear to assume the following (which Balkin makes explicit): "What I think is going on is a certain visceral fear of something un-American creeping into the discourse of American constitutionalism. This is hardly the first time such xenophobia and No-nothingism have arisen in American history, or that the purity of the American Constitution and American sovereignty have been defended against the poisonous ideas and tendencies of foreigners. It arises everytime people feel confronted with change. They strike out at that change by blaming it on something un-American."

I disagree. I often agree with Professor Balkin; I admire his intellect and his politics; but all of this psychoanalysis strikes me as patronizing and shallow.

Let's look at Lawrence. The point that Kennedy for which the European decision was used was to refute a rhetorical claim in Bowers that "decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization". But, aha, contends Kennedy, the European court, five years before SCOTUS decided Bowers, held that private homosexual sodomy was protected under the European declaration of human rights. Thus, or so it goes, "the [European] is at odds with the premise in Bowers that the claim put forward [that homosexuals have the right to engage in intimate relations in the privacy of their homes] was insubstantial in our Western civilization." Good grief (or so P would say were P not busy working), how does that follow logically?

Let me put my biases on the table. I find Bowers offensive, and in particular the snotty dismissal of the right asserted (the right of homosexuals to have an intimate life free from state interference). White's decision got it wrong as a matter of substantive law (although that is a different discussion). He was also wrong on tone.

But really, just because there was a decision out of an ad hoc European human rights tribunal interpreting a European convention does nothing - neither persuasive, nor binding - to the factual contention in Bowers - that throughout the history of Western civilization, states have retained rights to criminalize certain intimate practices. Whether it means that White was wrong to be so cavalier about the claim, well, on that score he was just wrong. But we don't need a European tribunal to prove it.

But put that aside, and think a bit about how troubling it is that the Supreme Court is citing foreign precedent as undermining its own precedent (or worse, suggesting that its own precedent was insufficient when written). * Don't forget, it is our constitution that we're interpreting here, folks. Profs. Balkin and Solum, normally not ideological fellow travellers, are sanguine, because, they say, this happens between American states all the time and other countries do it too. But this doesn't carry water as an argument. The distinctions are obvious: states share (except for LA) a common-law system, many uniform laws (UCC; model penal code states; etc.); problems of federalism; problems of borders. That is why it is normal for them to cite each other's decisions - even though from my experience not common. Balkin says that inter-state citation is nonetheless functionally the same as citation by the Supreme Court of foreign precedent. I don't see it. I don't want my Supreme Court to go out looking at what other nations say about their Constitutions in order to determine the meaning of the social compact I'm a part of. Do you? States do it, rarely, but at least within the states there are overarching federal guarantees. I know that the Rhode Island's interpretation of the UCC will follow the same generally accepted principles as Pennsylvania. So it is ok to cite it as persuasive authority - it (at the least) isn't alien.

I know that people all over the academia are scoffing at the concept of constitutional sovereignty, but isn't there something important about requiring the Supreme Court to deal with American precedent and history - not just first and foremost, but only? Balkin points out that foreigners cite the Nine and other federal courts often. Good for them. I can think of a few reasons why: (1) their constitutions are modeled on ours; (2) they don't have written constitutions; (3) we're a cultural and legal hegemon; (4) we have Richard Posner; (5) all important questions in our society wind their way to our courts. But the points aren't reciprocal (especially #4). If foreign courts cite to the nine, well, I'd bet we're often cited like this: "The death penalty is abhorrent, of course, and can not be countenanced in civilized society. But cf. Texas v. LeBouf___ U.S. ___ (Any Year) (holding that President Bush could personally torture to death a condemned, innocent, Frenchwoman whose only "crime" was to protest the importation of genetically modified cornmeal)." We don't have to go out and borrow foreign citation practices just because they are useful to an argument. If there is a good point to make, then *make it*, don't say that the people of Ecuador think it.

This raises a deeper point about the common law. The common law - and constitutional adjudication is the common law in action -can only exist when judges agree to be bound by a shared, limited, set of precedent. Enlarging the universe of persuasive authority diminishes the authoritative scope of any given decision, its longevity, and its usefulness to lawyers. The point has been made elsewhere, and I won't belabor it here. (A good relevant book is Katsch's Electronic Media and the Transformation of American Law) The basic point is that common law judging, at some level, requires a limited sample set of tools to manipulate. It evolves, slowly, by the steady accumulation of like precedent, not the importation of entirely new cultural concepts. Balkin says that foreign law is just like law reviews, treatises, books, etc. Well, maybe. And maybe it isn't the best idea to be citing such material in the first place. Even so, there is a difference between citing a court and citing a law review. Everyone knows that law reviews aren't to be trusted are are cited just to make a judge look smart. [Kidding!]. But if you cite a court, it looks like you are following a court.

This leads into my final argument. People seem to treat this as harmless becaues it is merely "persuasive" authority". True. But nothing is binding on the Nine. Not what they say. Not what other people say. Not even what really really smart other people say about, for example, commercial speech. When everything is merely persuasive, what you cite as persuading you begins to seem like something that lower courts should be bound by. The emperor's wish is our command.

* For some other examples of such use of internationl law by the Nine, see, e.g, Atkins; Knight v. Florida.

Monday, July 07, 2003

New law blog

PLAINSMAN: Since I mentioned the Craigmiles case in my last post, this is a good time to welcome Sixth Circuit Law to the blog fold. The author, a student at the University of Louisville's Brandeis School of Law, describes himself to reporters as a conservative. If so, he probably participates in Louisville's student chapter of The Usual Suspects; if not, I hope he will not think it forward of me to encourage him to sign up.

In any event, his blog has provided helpful and non-ideological summaries of recent Sixth Circuit decisions, as well as noting important amicus brief filings and related news articles. It looks like it will prove quite a useful resource.

With The LitiGator (from Michigan) and now Sixth Circuit Law, lawyers in the Michigan-Ohio-Kentucky-Tennessee area benefit from a good deal of specialized blog coverage. I hope this trend continues in other parts of the country.

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Sunday, July 06, 2003


I had a lovely 4th. As I was watching a fireworks display with a large group, someone started spontaneously singing the National Anthem. And you thought you red-state folks had a monopoly on patriotic displays! Hah!

In Judicial news, as has been widely reported, S.D.O'Connor will not be retiring this year. Of possibly greater interest in that article is Justice Breyer's comments about the relevance of foreign law in interpreting the constitution. I think we should set aside some time to talk about this phenomena, which I have mixed feelings about. As your comments about Lawrence indicate, it sure seems like it can be misused in an entirely opportunistic way. And the fact that it is Breyer, rather than the far more intellectually rigorous Souter, who is pushing this gives me pause.

I agree with you, on further reflection, about Lawrence. At least in that the opinion is "lacking in power to persuade a lawyer who doesn't buy into it a priori". Of course, I'm not sure that persuading lawyers was the point. Rather, the opinion's sweeping rhetoric could be seen as intending to persuade a wider audience of non-lawyers, using the Court's unique position as a moral bully pulpit. It is in this role that it takes the most contemporaenous flak (think Dredd; Brown; Griswold; Roe; Casey; Romer). And such decisions are had to evaluate without the benefit of a great deal of time.

I did indeed "like" O'Connor's concurrence, and I was surprised that it didn't get more votes. Of course, that opinion also contained a principle that proves too much: "Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." But, as Justice Scalia points out, what she really does is apply rational basis scrutiny with teeth. I had a few questions.

First, why is that a prohibition on sodomy would satisfy heightened rational basis scrutiny if it was applied to both heterosexual and homosexual conduct? We know that the intended effect, and likely enforcement would disproportionately burden the latter group? Is this merely a Washington v. Davis issue?

Second, O'Connor approvingly cites Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (Jackson's famous articulation of why equal protection works). I wonder, have you seen any scholarship looking at Railway Express empirically? That is, where a state has been prohibited from singling out one group, and is forced to apply a law more generally, are their studies establishing that Jackson's intuition about the functioning of the democratic process are right? Or is this another of the law's untested propositions about the way the world should be (like, for example, holding the legislature's feet to the fire by refusing to strike down a poorly drafted law; or law and economist's idea that Congress fixes the distributive effects of legal rules by tinkering with the tax-and-transfer system).

Friday, July 04, 2003

Happy 227th


"The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

. . .

"We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Does this radical document shed light on the legal issue we're discussing in Lawrence? Perhaps it does, from more than one angle.

A happy Independence Day, to all Americans.

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Thursday, July 03, 2003

Interesting Lawrence amicus brief; and, What about Lochner?

PLAINSMAN: A few more thoughts prompted by Lawrence.

The most thoughtful case I've seen made for the Court's result is the one presented in Prof. Barnett's amicus brief for the Institute for Justice. He contends that no "fundamental rights" analysis is necessary to strike down sodomy laws because they violate a principle that is much broader than the "sexual relationship" liberty that seems to underpin Justice Kennedy's result. Under Anglo-American law, Barnett argues, the police power simply does not extend to private, consensual, noncommercial, nonharmful conduct. His is a sort of originalist "enumerated powers" argument -- but a pretty radical one, since it applies to state governments, not just federal government.

Barnett writes:

"[T]here are countless private activities that are protected by no tradition or express constitutional provision. It would be unimaginable that they could be prohibited in a free society, even if some objection could be raised to them – cooking unhealthy meals, staying up too late, spending a slothful day drinking coffee and doing puzzles instead of accomplishing something productive. Indeed, almost anything that an ordinary person might spend his or her weekend doing, from gardening to cleaning to touching up house paint, would probably not qualify as a “fundamental” right. Yet such private activities, in the aggregate, are the essence of ordered liberty."

This is well put, and very persuasive as a matter of policy. Barnett proposes the Ninth Amendment as the site for these claimed limitations on the police power.

The problem is that if this sort of nonexplicit limitation is to be treated as law, there needs to be a firm originalist grounding for it. Barnett tries manfully to establish one, and heaven knows I'm not a legal historian, but my sense is that he does not carry the day. He cites a few general remarks of Madison a propos the Ninth Amendment, and some nineteenth century legal theorists about the limits of the police power. But as against the sheer historical weight of the sodomy laws and other pure "morals laws" that did exist both when the Bill of Rights was adopted and when the Fourteenth Amendment was ratified, I don't think this is enough.

But Barnett's attempt to justify a broader constitutional principle of generalized "liberty" is thought-provoking in its own right. The late-20th century privacy cases all seem to hinge on the subject of sexual activity. Roe is something of an outlier, since it's arguably about the states' power to regulate private violence, not sex; but still, there's an obvious connection between sex and pregnancy. So, why the limitation to sex? The sweeping language that Justice Kennedy has unbosomed himself of in Casey and Lawrence is hard to confine so narrowly. "There are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. ... Freedom extends beyond spatial bounds." (Lawrence). The supertextual liberty identified in the Court's cases protects "choices central to personal dignity and autonomy" (Casey, mystery passage).

Well, then what about the freedom to engage, "outside the home," in a lawful profession without submitting to onerous economic regulations? What about the choice to enter into certain contracts -- as, say, a baker who agrees to work overtime? Are these "choices" not also potentially "central to personal dignity and autonomy"? Who are the Justices to say not? Sex is a vitally important "sphere," but so is work. The Fourteenth Amendment does not enact Mr. Freud's Civilization and Its Discontents.

You can see where I'm going with this: What about Lochner? Is there any principled basis left on which to oppose a resurgence of substantive Fourteenth Amendment review of economic regulation? Sure, it'd be controversial, but so is Lawrence (pace the Court).

To put things concretely, we might ask what light Lawrence sheds on Craigmiles v. Giles (2002), a striking recent decision of the Sixth Circuit. The court unanimously struck down, on Fourteenth Amendment grounds, a Tennessee statute that erected onerous licensing requirements on the sale of caskets. Basically, the court held that there was no reason you should have to go through two years of classes and interships in order to be permitted to sell a box to someone. Deeming the Tennessee regulation a pure monopoly scheme, the court struck it down under rational basis review. That decision is now the law of the land in four states.

Contemporary lawyers are taught to freak out at this stuff; we all get cautionary tales about Lochner from our con law profs. But I wonder whether Americans at large would share that view today. Perspectives are different from the 1930s; socialism is dead. I had occasion to explain the holding in Craigmiles recently to an intelligent nonlawyer, a Democratic voter who is quite far from being a free-market junkie, and she found it perfectly sensible and unremarkable. It took a good deal of explaining to indicate why many lawyers think it is remarkable.

I'd add in closing that the critique of such decisions on textualist grounds might not be as strong as is generally believed. The folks at Cato and IJ and the like have done a lot of historical work on the Privileges and Immunities Clause. They contend that, until it was essentially nullified by the Supreme Court in the Slaughter-House Cases (1873), the P&I Clause was meant to convey a set of "natural law" rights that did indeed include a liberty to engage in a lawful trade without undue government interference.

I'm not saying I accept this interpretation of the 14th Amendment. I simply haven't done the research. My point is just that there are legal and intellectual materials out there for a Lochner renaissance someday. It is not unthinkable. Justices Thomas and Rehnquist have expressed support for a rethinking of the Privileges and Immunities Clause (see Saenz v. Roe), and Justice Kennedy himself wrote an interesting separate opinion in Eastern Enterprises v. Apfel (1998) voting to invalidate an economic pension regulation on substantive DP grounds.

Might Lawrence pave the way? What do you think?

PS: Some of my musings in this line have been spurred by Prof. David Wagner's thoughtful bloggings in the past several days over at Ninomania. He's been on fire since Lawrence came down.

(Now if only he would fix his new, difficult-to-read blog format! The old Ninomania, with a light yellow background and larger, dark print, was a lot more user-friendly, in my view.)

* * *
You've got to be kidding me

PLAINSMAN: I just lost a nearly complete post of about 1,200 words on Justice Kennedy's opinion for the Court in Lawrence v. Texas! And yes, I had been saving as I went along. But it's still all gone. Darn this new Blogger! It tells me to "report" the loss. Great.

Some of the things I wanted to say about Lawrence

My post was an attempt to walk through the intellectual failings of Kennedy's opinion, which I think is quite bad -- lacking in power to persuade a lawyer who doesn't buy into it a priori. It announces a result and then gropes around for analytic support, unsuccessfully. (E.g.: the European Human Rights Court reached a different holding from Bowers in 1981 under the European Convention on Human Rights. You don't say! Well, then Bowers must have been a wrong reading of the U.S. Constitution. Or this oxymoron: "we think that our ... traditions in the past half century are of most relevance here.")

I was disturbed by Kennedy's failure to discuss, or even cite, the Court's opinion in Washington v. Glucksberg (1997), the assisted-suicide case. Glucksberg held that only those unenumerated interests that are "deeply rooted" in the nation's history and tradition are protected by the Due Process Clause. Moreover, courts must not allow broad, abstract liberty claims to go forward, but must insist on "a careful description" of the interest asserted. Kennedy joined this opinion in full. Yet Glucksberg is far more consistent with the analysis and result in Bowers than with the analysis and results in Lawrence or Roe. So if you're going to argue that Casey "eroded" Bowers, as Kennedy does, then you need to acknowledge that Glucksberg "eroded" Roe and Casey. That was certainly how it was perceived by both liberal and conservative scholars. Kennedy does not do this.

One of the most important things about the American judiciary is that it has to operate within a structure of reasons. While this is its great strength and a chief source of legitimacy, it also gives judging a tragic aspect at times. Because judgments are connected, there are results that would be wise, moderate and sensible if achieved by a legislature that are disturbing and potentially destructive when imposed by a federal court. Overall, Lawrence strikes me as such a case. The Court's opinion makes me sad as a lawyer, even though it makes me happy as a policy result. The opinion is vague, evasive, and grandiose. The Court says its holding is limited (no constitutionalized incest, prostitution, gay marriage, etc. -- yet), but as Justice Scalia points out, the limitations are ad hoc and make the decision appear nakedly political and legislative. (As if to say: "we think the populace will accept this logical consequence of our privacy jurisprudence, but not the others, so we'll hold off on the others, though maybe we'll impose them, too, at a later time if we think they're a good idea and we can get away with it."). That is not a good way for a court of law to appear.

I don't think Justice Kennedy's a bad guy. I think he tries to get the cases right, and he often does. But that just points up the problem more acutely: what gets into the Justices in cases like this? I cannot imagine offering an opinion like Kennedy's to the world as my legal handiwork in such an important case. It is so full of conclusory statements, arguments that sputter out (see, e.g., Kennedy's attempt to contest the historical underpinnings of Bowers, which ends in a whimper) and awkward, pompous pontification.

Let me just say it: the problem may be that Kennedy, despite his good qualities, is not in the same intellectual league as Scalia, Thomas, Souter, and some of his other colleagues. I'm sorry to be blunt; I'm not saying he's a dummy, just that others have better legal minds. That can make a difference to the quality of judging: Professor Balkin had a nice post to this effect a few weeks back.

I wish that Justice Souter had written for the Court in Lawrence. Souter has thought long and hard about Justice Harlan's Poe dissent, as his Glucksberg concurrence makes clear. I think he would have produced a majority opinion (with endless footnotes) that would be worth arguing with.

Thus the first step in discussing Lawrence should be to try to come up with a better, more serious majority opinion. What do you think it would say, D.? Did you like Justice O'Connor's concurrence in the judgment?

PS: While Justice Thomas wrote an apt, succinct dissent in Lawrence, I found myself wishing anew that we could get Judge Kozinski on the Court. He would have gone to town in this case, calling forth hidden premises, boiling down arguments, shedding an unblinking, detailed light on the proceedings. And I would have felt better about it all, as a lawyer.

PPS: I'm really P.O.'d that I lost my prior post. There was a lot more analysis of Kennedy's opinion in there.

PPPS: I agree with D. that Scalia's Lawrence dissent was not great. Too much time at the outset sniping at the other Justices about Roe and stare decisis -- his points were fairly well taken, but they shouldn't have been the first thing in the opinion, and they shouldn't have gone on for seven full pages either. Scalia's been in the trenches too long. First it made him grouchy; now I fear it's starting to affect his perspective on the relative importance of issues.

* * *

Tuesday, July 01, 2003

I'm Back

From a lovely week vacation a beach on one of our country's coasts and/or large inland lakes. It was refreshing. I did not finish, as I had hoped, an academic project that I would like to mail out soon. Neither did I succeed in avoiding a sunburn. However, I was able to relax, and sleep in, and play some basketball, all of which was just wonderful.

Oh, you wonder what I thought about the "biggest law week in recent memory?" I'll tell you, I'm conflicted. I loved the sweeping language in Kennedy's Lawrence opinion. I also love the Marshmallow Peeps I've got on my desk. Both are pure pleasure when first encountered, but grow rank with repetition. But the result was right, and Scalia's concurrence was I thought among his least analytically compelling. Scalia's main task should have been to articulate why it is necessary to analyze liberty interests at their most specific incarnations (e.g. the right to homosexual sodomy so disdainfully dismissed in Bowers) as opposed to the general levels of Roe and Lawrence.

On Grutter, I know that P is disappointed by O'Connor's expected pragmatism. I haven't read the decisions yet except in excerpted form, so I'll serve as P's foil when he comes out with the comments he's been stewing over. I confess I'm mystified by the 25 year dicta's relationship to the diversity rationale, so educate me!

In other news, I'm happy to report that my phillies are finally starting to win some games. On the other hand, as a philadelphia fan, I think this is a good moment to point out that whatever success we enjoy today, we will pay for it in August and September.