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    • CommentTimeJul 4th 2014


    Rightward Bound: ‘Uncertain Justice’ and ‘Scalia’

    by Jeff Shesol
    New York Times, July 2, 2014 (July 6 print ed.)

    [Book review of:

    UNCERTAIN JUSTICE: The Roberts Court and the Constitution
    By Laurence Tribe and Joshua Matz, 401 pp. Henry Holt & Company. $32.


    SCALIA: A Court of One
    By Bruce Allen Murphy, 644 pp. Simon & Schuster. $35. ]

    In July 1977, a law professor and former official in the Nixon and Ford administrations, Antonin Scalia, joined the editorial board of a new magazine called Regulation. It was decidedly not pro-. Its first issue featured an article in which Scalia expressed his contempt for legislation aimed at the “platitudinous goals of pursuing ‘the public interest’ or preventing ‘sex discrimination.’ ” The use of quotation marks was revealing. Here was Nino Scalia, 41 years old and already fully formed: scathing, self-confident and profoundly at odds with the premises of late-20th-­century American law and life.

    Today, more than three decades later, Scalia’s long-held views on regulation — and much else — are entrenched in the Republican Party and ascendant on the Supreme Court, on which Scalia has sat since 1986. It is not a coincidence that the labels that many detractors apply to the court under Chief Justice John G. Roberts Jr. are the same ones they attach to Scalia: “stuck in the past,” “pro-business,” “disconnected from the real world.” With every new conservative ruling — and there has been a run of them in recent years, on a range of issues from campaign finance to affirmative action, religion in the public sphere to gun control, abortion to voting rights — these characterizations of the Roberts court, like those of Scalia himself, are hardening into settled wisdom on the left.

    But a pair of new books — one on the constitutional changes wrought by the Roberts court, the other a biography of Scalia, its most garrulous member — question these views while, in important respects, reinforcing them. In “Uncertain Justice,” Laurence Tribe, the Harvard Law School professor and a pre-eminent authority on the Constitution, and Joshua Matz, a recent graduate of that school and, beginning this fall, a clerk for Justice Anthony Kennedy, refuse to either “stereotype the justices” or draw the familiar, categorical lines between the court’s liberals and conservatives, its Democratic and Republican appointees, its “activists” and apostles of “restraint.” Instead, Tribe and Matz set out to portray the Roberts court in what they see as its messy complexity.

    It is no doubt difficult to write with clarity about uncertainty, but Tribe and Matz largely succeed. Surveying a shifting legal landscape, they offer crisp accounts of key cases, looking especially for “points where debate about the Constitution’s meaning is particularly intense, the court is torn about its role, the effects of its decisions remain obscure or the justices’ goals seem unclear or contradictory.”

    Privacy law is one such point, and a clear example of the “uncertainty” principle. Doctrines in this area are fluid, rulings tend to be narrowly drawn and alliances among the justices appear unsteady. In NASA v. Nelson, a unanimous 2011 decision upholding federal agencies’ broad discretion in conducting background investigations, Scalia’s concurrence reads as bitterly as a dissent; he assails Justice Samuel Alito’s majority opinion for its propensity to “pontificate upon a matter that is none of its business: the appropriate balance between security and privacy.” The court’s five conservatives may constitute a bloc, but hardly a monolith; on privacy, as well as on free speech and executive authority, Tribe and Matz identify “schisms” — sometimes deep ones.

    On most other issues, though, the right-leaning brethren (the court has no right-leaning sistren) seem perfectly in agreement as to where they are going, even if they differ on the route to take or the speed to travel. Nine terms into John Roberts’s tenure, it is hard to credibly contend that the conservative justices are, to any real degree, confused or divided about their direction. Yet this is the conceit of “Uncertain Justice,” and it will strike many court watchers as strangely off the mark. Tribe and Matz themselves seem less than fully sold on the notion; the defense they offer is, at best, inconsistent. Indeed, their own analysis reveals, across the map, a conservative majority on the march, driving toward deregulation.

    Consider campaign finance law. The Citizens United ruling of 2010 is still scourge No. 1 to political progressives — Senate Democrats have vowed to vote before year’s end to overturn the decision by amending the Constitution — but it now has competition; an ever-extending line of campaign finance cases is “moving us ever closer,” as Tribe and Matz write, “to a world in which government is stripped of nearly all power over money in politics.” The Roberts court has also signaled, in case after case, its eagerness to roll back regulations of economic activity — from a prescription drug law in Vermont to the financing system for a sewer project in Indiana to the provision for Medicaid expansion in the Affordable Care Act. Though the liberals (joined by Roberts) upheld the constitutionality of the A.C.A. under the taxing power, the dissenters (echoed by Roberts) took the most constrictive view of federal power under the commerce clause in 75 years, since the New Deal-era court got out of the business of overseeing economic policy. Taken together, as Tribe and Matz observe, decisions like these “signal a loosely unified project” — to safeguard “individual economic liberty” against the encroachment of government at any level.

    In civil rights, in consumer rights, in criminal procedure, long-established protections are falling away and barriers are going up. Tribe and Matz note that numerous “low-profile rulings” are rendering many rights impossible to enforce, leaving prosecutors, police and businesses “freer to act without the checks and balances — and burdens and frustrations — of judicial oversight.” The overall picture, it turns out, is quite clear indeed, and “Uncertain Justice,” despite its title and stated intent, brings that picture into stark relief.

    For a former editor of Regulation, these ought to be salad days. Like Justice Harlan Fiske Stone, whose dissenting opinions of the 1930s came to define the jurisprudence of the 1940s and beyond, Antonin Scalia has stuck around long enough to see many of his dissents become law. But Scalia, one suspects, has little taste for salad. No doubt he takes satisfaction in the sweep and success of the Roberts court’s deregulatory campaign. At the same time, he is a man who has spent most of his years on the court in a state of high moral agitation, and he seems disinclined to dial it down — particularly when the majority offends his deepest beliefs, as it did last year in U.S. v. Windsor, which overturned the Defense of Marriage Act. Though most of the closely divided, consequential cases now find Scalia on the winning side, his life’s hero remains Sir Thomas More, Catholic martyr.

    To Scalia’s many admirers on the right, his indignation is part of his appeal. But to Bruce Allen Murphy in “Scalia,” the justice’s perpetual, apparently uncontrollable rage is his Achilles’ heel, limiting — perhaps negating — his leverage on and off the court. Murphy’s belief is that Scalia, for all his charisma and intellectual prowess, has rendered himself a “court of one,” even when he finds himself in the majority. The author of previous books on William O. Douglas and other justices, Murphy is hardly the first to weigh the costs of Scalia’s contentiousness. The Supreme Court reporter Joan Biskupic, in her excellent biography of Scalia, “American Original,” along with careful observers like Linda Greenhouse, formerly with The New York Times, and Dahlia Lithwick of Slate, all judge the damage — both to Scalia’s reputation and to his influence — to be high indeed. But no one has considered that question as fully as Murphy; “Scalia,” in fact, may be the most exhaustive treatment of a sitting justice ever written.

    Yet as Scalia, who is 78, approaches his 29th term on the court, it does not seem too early to mull his legacy. More than any individual decision or dissent, the theory of “originalism” is likely to be his lasting mark. Scalia did not single-handedly invent it, but he has done more than anyone else to advance it. The idea that ­judges are supposed to — and actually able to — uncover the “original meaning” of constitutional language is so commonplace among conservatives that it is easy to forget how idiosyncratic it is. Murphy locates its roots in Scalia’s upbringing: in the credo of “literalness,” a mode of strict textual analysis developed by his father, a scholar of European literature; and in “the literal biblical tradition favored by his faith,” a defiantly traditional strain of Catholicism.

    What these methodologies promise is certitude, which is the argument Scalia makes for originalism: It takes the judgment out of judging. “When I find it — the original meaning of the Constitution — I am handcuffed,” he insists. Murphy counters, convincingly, that Scalia finds, in virtually every instance, exactly what he sets out to find. Originalism, in this telling, is a wide-open, subjective affair, and the justice a kind of magpie historian, plucking these bits from the 18th century, those from the 19th, whatever it takes to reach his preordained result. Scalia’s majority opinion in District of Columbia v. Heller, the 2008 case declaring — perhaps inventing — an individual right to bear arms for self-defense, is overbrimming with handpicked history, making it, in Murphy’s assessment, Scalia’s “judicial magnum opus.”

    “Scalia” is a skeptical, often critical look at its subject, but free of snark; it does its readers the service of taking Scalia’s ideas seriously. Drawing extensively on the speeches, writings and obiter dicta, Murphy tracks the shifts in Scalia’s approach and what differentiates it from those of other textual revanchists, whether Justice Clarence Thomas or the legal scholar Robert Bork. It is unfortunate, then, that “Scalia,” like “Uncertain Justice,” overcommits to an argument it can’t quite sustain — in this case, that Scalia is a “court of one.”

    There’s no question that, as Murphy argues, Scalia’s relationships on the court have been “undermined by his powerful ego.” He has never been able to resist lecturing, hectoring and ritually abusing his fellow justices — often by name — in opinions or from the stump. One of his favorite targets was Sandra Day O’Connor. Her views on abortion were “irrational,” Scalia wrote in a concurrence in the 1980s, and “cannot be taken seriously.” One by one, Scalia has driven away the moderate justices — O’Connor, Kennedy, David Souter — whose votes might have won him cases and made him a leader. “Nino,” Chief Justice William H. Rehnquist once reprimanded him in a note, “you’re pissing off Sandra again. Stop it!” Nino can’t, as this book makes clear.

    Even so, it is too much for Murphy to suggest that Scalia, for all his years “singing in the shower” and “alone on his ice floe,” has been anything short of supremely influential. In fact, few justices in the past century have exerted a wider influence on the public’s understanding of the law and of the role of judges. Even some liberal judges — refusing to grant conservatives sole possession of the founders — have adopted his approach, grounding their opinions in Madison’s notes on the Constitutional Convention, “The Federalist Papers” and other historical texts. John Paul Stevens’s dissent in Heller, in this way, owed much to originalism.

    As Scalia told an interviewer last fall: “Originalism is now regarded as a respectable approach to constitutional interpretation. And it really wasn’t 20 years ago.” He is right about that, and even this understates his impact. Scalia has long been a spokesman not only for a judicial philosophy but for an entire worldview — the querulous conservatism that issues forth from Fox News, the Tea Party and much of the Republican Party. For his first 20 years as a justice, Scalia could be said to be winning by losing. Today, setbacks like Windsor aside, he is just winning.

    • CommentTimeSep 2nd 2014

    Seeking Facts, Justices Settle for What Briefs Tell Them

    by Adam Liptak
    New York Times, Sept. 1, 2014 (Sept. 2 print ed.)

    WASHINGTON — The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

    Others stood out. They presented fresh, factual information that put the case in a broader context.

    The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs.

    But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary.

    “The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article** to be published in The Virginia Law Review.

    Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

    Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

    Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

    Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

    The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

    The trend is at odds with the ordinary role of appellate courts, which are not supposed to be in the business of determining facts. That is the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process.

    Appellate courts traditionally take those facts, fixed in the trial court record, as a given. Their job is to identify and apply legal principles to those facts.

    Justice Antonin Scalia made this point in a 2011 dissent chastising the majority for its blithe acceptance of “government-funded studies” that “did not make an appearance in this litigation until the government’s merits brief to this court.”

    But “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” Justice Scalia wrote. “An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.”

    The net result, he said, is “untested judicial fact-finding masquerading as statutory interpretation.”

    At least the studies that Justice Scalia complained about were submitted by a party to the case and thus were likely to be closely examined by the other side.

    Most of the information from the amicus briefs recently cited by the justices was not subjected to even that level of adversary scrutiny. Only 28 percent of the cited materials drew a response from one of the parties in the case.

    In the Hobby Lobby case, Justice Samuel A. Alito Jr. pushed back against the recent trend, refusing to consider “an intensely empirical argument” in an amicus brief. “We do not generally entertain arguments that were not raised below and are not advanced in this court by any party,” he wrote.

    Not so, Professor Larsen wrote in a recent blog post. “This descriptive statement by Justice Alito about Supreme Court practice is simply incorrect,” she wrote.

    Consider these examples.

    In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.

    “Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”

    In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are an “increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

    And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.

    In an interview, Professor Larsen said she was struck by how often justices cited the amicus briefs themselves as sources of authority, as opposed to the materials collected in the briefs. “It really makes you wonder how much digging the justices are doing,” she said.

    Kannon K. Shanmugam, a lawyer with Williams & Connolly who argues frequently before the court, said the justices’ quandary was a common one.

    “The Supreme Court has the same problem that the rest of us do: figuring out how to distinguish between real facts and Internet facts,” he said. “Amicus briefs from unreliable sources can contribute to that problem.”



    Posted By: oak“the literal biblical tradition favored by his faith,”
    There's yer problem, right there.
    • CommentAuthorAsterix
    • CommentTimeSep 2nd 2014 edited
    What worries me more than 7 of the 9 being Roman Catholic, is that there is a seemingly lack of respect of stare decisis--and absolutely no idea of what conflict of interest is.
    Would you feel better if seven of the nine were Muslims?
    • CommentTimeSep 2nd 2014
    Secular muslims?
    Posted By: aber0derSecular muslims?

    Indeed it is an oxymoron. They must be schizoid.

    They are trying to say that they'd like to keep their religion while approving of and taking part in a Western democracy. Which is what Muslims in Britain have to do anyway.
    • CommentTimeSep 2nd 2014
    Most of the muslims I know are a aware of the benefits of a secular government.
    Most of the Catholics I know allow both men and women to use the same entrance to the church.
    • CommentTimeSep 2nd 2014 edited
    Most of the Catholics I know don't like to talk about sexual abuse of little children by priests. And the Catholic church spends a lot of money to silence the victims.

    But that's not the point.
    • CommentTimeSep 2nd 2014

    In den Seitenschiffen haben die Schlusssteine das Thema Nächstenliebe, wobei im südlichen Seitenschiff weibliche und im nördlichen Seitenschiff männliche Figuren dargestellt sind. Hieran erkennt man noch die alte Sitzordnung in Kirchen, wo Frauen und Männer getrennt saßen. Im südlichen Seitenschiff findet man Maria mit dem Kinde und im nördlichen Seitenschiff St. Martin als Ritter dargestellt. Der dazugehörende kniende Bettler ist auf einem separaten Stein am Rand des Gewölbes zu finden.
    • CommentTimeSep 2nd 2014 edited
    Posted By: aber0derMost of the Catholics I know don't like to talk about sexual abuse of little children by priests. And the Catholic church spends a lot of money to silence the victims.

    But that's not the point.

    No, it's not. We are back to Kindergarten moral instruction, I see. Just because Jimmy did something, doesn't make it OK for Johnny to do it, and Jimmy's sins and crimes, and even the crimes of his parents, have nothing to do with Johnny's sins and crimes of today. And not only do Johnny's parents commit the crimes, but his brothers do it too. It's not even considered wrong, or homosexual, for Muslim men (in certain countries) to take on small boys as sexual playthings. So please, let's not compare old styles of Catholic church seating with modern Muslim practices today. What Catholic church, built in the last five years, segregates men and women in that manner? None of them. What Mosque, built in the last five years, includes a women's entrance around the side or rear? All of them.
    • CommentAuthorAsterix
    • CommentTimeSep 2nd 2014
    You all miss the point. The Roman Catholic church is a top-down organization that claims absolute moral authority. It is my contention that this conditions the members' ground of being.

    If the Church takes a firm position on, say, birth control, what is a faithful member of the laity to do? Advocate it and be damned forever?

    You don't think that the Church could be involved in secular matters? Consider the 19th century decree that supporters of Italian democracy would be excommunicated.

    I'd feel a lot better if, as in years past, there were a more even mix of beliefs.
    I'd feel a lot better if all these deluded Abrahamic sky-fairy suckers would just spontaneously explode
    • CommentTimeSep 2nd 2014
    Posted By: alsetalokinWhat Catholic church, built in the last five years, segregates men and women in that manner? None of them. What Mosque, built in the last five years, includes a women's entrance around the side or rear? All of them.

    Perhaps to the point, what secular law allows Mosque's and Golf Clubs to discriminate against women in this way?
    • CommentAuthorAsterix
    • CommentTimeSep 3rd 2014
    • CommentTimeSep 3rd 2014
    Posted By: pcstruPerhaps to the point, what secular law allows Mosque's and Golf Clubs to discriminate against women in this way?

    Now if the World Federalists were to suggest legislation to prevent such a thing do you suppose MY and Trim would be down their throats for a bunch of bureaucrats interfering with sovereign rights?
    • CommentTimeSep 3rd 2014
    Posted By: AsterixWhat worries me more than 7 of the 9 being Roman Catholic, is that there is a seemingly lack of respect of stare decisis--and absolutely no idea of what conflict of interest is.

    Posted By: alsetalokinWould you feel better if seven of the nine were Muslims?

    Why don't we escalate that a bit. Would you feel better if seven of the nine were Nazi's?

    It is shameful that the Justices allow their religious views to affect their ruling and it is shameful and horrible that so many belong to a single superstition. I suppose Catholics are considerably less brutal and insistent upon strict adherence and enforcement of the religion on everyone than Islamists but that is small comfort.
    Too true. There should be a filter to ensure diversity of superstition. The trouble is that efforts to impose diversity seem to have mixed success. Affirmative Action for SCOTUS?