More Noted Things

by Cliopatria

Cliopatria Awards: Alun Salt at archaeoastronomy has gotten into the spirit of the Cliopatria Awards. He's doing a post on each of the six categories in which awards will be given. First up: Best History Group Blog. If Alun can do that much, you should offer some nominations. Go.

Honest Abe: Caleb Crain,"Rail Splitting: Two Opposite Approaches to Honest Abe," New Yorker, 7 November, reviews Doris Kearns Goodwin's Team of Genius: The Political Genius of Abraham Lincoln and Joshua Wolf Shenk, Lincoln's Melancholia: How Depression Challenged a President and Fueled His Greatness. Crain blogs at Steamboats Are Ruining Everything.

Judicial Deference: You may have seen Paul Gewirtz and Chad Golder,"So Who Are the Activists?" New York Times, 6 July. They tabulated the willingness of justices of the United States Supreme Court to overrule congressional legislation as unconstitutional. The results were fascinating:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

As Chicago's Cass Sunstein has pointed out, this Court has ruled 30 pieces of congressional legislation unconstitutional in the last decade. That is a very high number, comparable to the action of the"Nine Old Men" in the 1930s. So, the conservative critics of"judicial activism" are correct – except that these data show that it is the conservative justices who are most"activist." We are being told by the Volokh Conspirators that Justice-designate Samuel Alito is marked by his conservative judicial deference to"established institutions." Inquiring minds will want to know what that means for"established precedent" and for Congress as an"established institution." Thanks to Henry Farrell at Crooked Timber and Kevin Drum at Political Animal for the tip.

Social Update: Our colleague, Chris Bray, is on leave in California this week, enjoying some time with his new bride, Ann, and renewing friendships at UCLA, before he returns to Mississippi and his deployment to the middle east. Meanwhile, the MacDougalls have just announced that they are expecting a little Mac sometime in the Spring. Congratulations to all three of them! Our colleague, Alan Allport, is back from a research trip of several months in England and, at Horizon, recalls the local celebration of Bonfire at Lewes in Sussex. It has anti-Catholic origins, but Alan's description reminded me of Mardi Gras or Carnival in trans-Atlantic Catholic societies.

The sound of empty classrooms all over America later this week will be because some genius scheduled the Southern Historical Association to convene here in Atlanta on 2-5 November and the American Studies Association to convene in Washington, DC, on 3-6 November. I have no responsibility at either convention for the first time in years, but I'll be at the SHA, looking to renew old friendships, spot some good books, hear a few good papers, and enjoy Southern conviviality.

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E. Simon - 11/4/2005

Does any particular voter decide what is "self-restraint" or is there an actual law or professional association among legislators that effectively decides what is and what is not "pork barrel spending" or any other legally undefined form of "self-restraint" in legislative aims?

As long as it is up to voters as a whole to decide then there is nothing other than a law or separate branch that defines a legislature's non-procedural obligations in a meaningful - i.e. interpretable - way. Of course a law could be made to enact a prohibition against violating a specific legislative "value," but it could also be just as easily stricken down - and would be - if it can't be defined. Whether or not doing so would be wrong or right would then be a political, rather than a professional question.

If congress as a professional association alone got to decide legislative aims, or the rightness or wrongness thereof, separate parties wouldn't exist. Their procedural standards, on the other hand, are the only obligations they consistently, meaningfully and collectively self-regulate. And even then they can sometimes disagree about that.

If there is some other mechanism than professional standards, voters or a separate branch of government that legislators answer to, I haven't figured out what it is. Individual conscience, one might answer, but I'm not sure how it is up to anyone other than that individual to accurately determine what that is.

It's interesting that you've taken this argument because proposed constitutions for the European Union actually do enshrine the principle of proportionality in their legislative aims (along w/subsidiarity and conferral) but in this regard they stand in contrast to the workings of the U.S. congress.

Oscar Chamberlain - 11/3/2005

More fundamentally, the Supreme Court was clearly designed to check state action. That was one of the major purposes of the 1787 constitution. It was far more of a stretch to declare national laws and actions unconstitutional.

The proliferation of states and the growth of the federal judiciary as a result has also added a new responsibility to the court. That is to reconcile contradictory federal district rulings.

Barry DeCicco - 11/3/2005

Which would make more state unconstitutional legislation likely, due to 50x the number of parties passing different laws. In addition, there would be an increased probability that at least one state government was deliberately doing so, under the influence of some faction (or odd confluence of factions).

Ralph E. Luker - 11/3/2005

Mr. Simon, Your pitiful effort at contempt for what I said betrays a very flawed understanding of restraint, which is one of many values in legislative, executive, and judicial action. The existence of checks and balances among branches of the federal government does not free any of its branches from the obligation of self-restraint. That remains true whether the branch exercises it or not. So, for example, runaway pork barrel spending violates that legislative obligation to self-restraint, whether the executive branch vetoes it or not. Got it?

Oscar Chamberlain - 11/3/2005

"Shades of penumbras are right out. "

William O. Douglas's phrase may not have been felicitous, but he was dealing with a real and interesting problem. The ninth amendment makes the bill of rights open ended by making clear that it is an incomplete list. To use your phrasing again, a discussion of rights under the US Constitution cannot be limited to "the words of the Constitution" because the ninth amendment makes clear that not all rights are stated within the Constitution.

Douglass was looking for a way to link stated rights to what he and a number of other jurists had become to consider a real, but unstated right. Regardless of whether he was right or wrong in that given situation, he did not create the quandery that he was grappling with, which was how to discern what unstated rights may exist. James Madison and the other crafters of the Bill of Rights created that problem.

The legislature can declare new "rights", and I believe that Robert Bork once argued that this was the proper route to identifying them. However, as the whittling of the American with Disabilities Act has made clear, legislation does not in itself create new rights. Because of the power of the Courts in balancing rights against other rights and against the power of state and federal governments, a "new" or "newly discovered" right is only fully recognized when the Supreme Court accords it a level of respect equal to the older rights.

E. Simon - 11/3/2005

Please tell me your attempt here to define something by what most closely approximates its own opposite is a joke. Restraint has nothing to do with passivity to one's obligations. Your post effectively charges the legislature and executive with interpreting laws - which is not a coherent view of the American political system. The separate branches are not their _own_ checks.

I don't see how the difference between discharging one's obligations and overstepping one's obligations could be that difficult to conceptualize.

John H. Lederer - 11/3/2005

I have generally thought that "activism" meant substituting a judges own view of what is "good" or "proper" for the law.

The definition applied here, however, seems to say that activism is declaring a statute unconsitutional.

Declaring a statute unconstitutional is picking between two "laws" -- the constitution and the statute. One might as easily say that not declaring a statute unconstitutional is an "activist" position. Justices have to choose one or the other. It is their job.

"Activism" under my definition is often presented as a question of constitutional interpretation A simple test is whether a reasonable person can discern the claimed constitutional interpretation from the words of the constitution or the statute. Shades of penumbras are right out. So is deciding that a law prohibitng racial discimination doesn't.

Ralph E. Luker - 11/2/2005

That may be correct, but another complicating factor is 50 state legislatures and 50 governors acting v. 1 Congress and 1 president acting. The mathematics of it makes my head swim.

Christopher Newman - 11/2/2005

Fair enough. I don't know, though, how one would go about demonstrating that Congressional legislation was less likely to be unconstitutional than state legislation in any way that wasn't tainted by one's own political and judicial ideology.

Ralph E. Luker - 11/2/2005

Thanks for the reference to Henry's update and Oren Kerr's comment and article. I'm still not altogether persuaded because state legislatures and governors do not operate under the same degree of stricture not to pass or sign legislation that violates the United States Constitution.

Christopher Newman - 11/2/2005

"I should think that it would be because the authors of the op-ed didn't have the data on SCOTUS rulings on state legislation. Neither do I. Unless you have this data, I should think that your claim that "the 'activism' is quite the other way around" remains to be demonstrated."

-- Excuse me. I was assuming -- apparently incorrectly -- that you had read the update to Henry's post and the comment by Orin Kerr. Orin Kerr links to a study he himself did of SCOTUS rulings on state legislation. His study finds that "liberal" judges ruled against state legislation twice as often as "conservative" justices. You might want to check it out.

Ralph E. Luker - 11/2/2005

How else would you define "activism"? Judicial restraint would be refraining from aggressive use of the Court's ultimate authority to find the actions of other "established institutions" as unconstitutional. The Congress, after all, has its own obligation _not_ to pass and the President has his own obligation _not_ to sign legislation that it and he deem to be unconstitutional.

Brian Ulrich - 11/2/2005

Whether this is the best data they had to work with is irrelevant to the question of whether it supports their conclusion. I think "striking down acts of Congress" as a measurement of "activist judges" is useful only for the partisan purpose of stealing the term from the right.

Ralph E. Luker - 11/2/2005

I should think that it would be because the authors of the op-ed didn't have the data on SCOTUS rulings on state legislation. Neither do I. Unless you have this data, I should think that your claim that "the 'activism' is quite the other way around" remains to be demonstrated.

Christopher Newman - 11/2/2005

Yes, but why make the claim that conservative justices are most "activist" while leaving out the detail that the study only records SCOTUS rulings on Congressional laws -- NOT SCOTUS rulings on state legislation, in which case the "activism" is quite the other way around?

Ralph E. Luker - 11/2/2005

Then, Brian, it seems to me that to say that Alito has a conservative's judicial deference to "established institutions" is deceptive, because the question has to be "What established institutions?" when the claims of different established institutions are in conflict.

Brian Ulrich - 11/2/2005

Yeah, but here's the thing - that study supposedly showed the Court striking down Congressional legislation. Conservatives want less power for the federal government and more for the states. All this shows is that conservative justices are more likely than others to find Congressional action unconstitutional, which is what they claim to stand for.