Justice Stevens rejects the idea that legal expertise is the reason why judges have the last word on the meaning of the Constitution.

The retired Justice is reviewing Sanford Levinson's new book "Framed: America’s Fifty-One Constitutions and the Crisis of Governance."  Levinson has offered 3 different reasons why judges have this role in our system of separated powers:

[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

When did the left turn against free speech?

One of the commenters declares that my "assertion that 'the best test of the truth is its ability to get accepted in the marketplace of ideas' was probably the most offensive part of her argument." When questioned about whether I really said that, he comes back with:

She cited a Justice whose name I haven't retained, as in: "As Justice X says, ..." followed by the verbatim passage I quoted.

She cited a Justice whose name I haven't retained.... Oh, for the love of God, why doesn't every educated person in America know the name of the Supreme Court Justice who said that... or at the very least know that it's embarrassing not to know? As if I'd thrown out some abstruse legalistic peculiarity!

And that was part of an argument by the commenter — echoing Bob Wright — that free speech is too dangerous because it might be false and it might inspire bad people to act out in terrible ways.

Remember when lefties were all about free speech? When did that change? Why did that change? Perhaps the answer is: Free speech was only ever a means to an end. When they got their free speech, made their arguments, and failed to win over the American people, and when in fact the speech from their opponents seemed too successful, they switched to the repression of speech, because the end was never freedom.

"I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death..."

"... unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

Did Justice Breyer actually say anything about the right to burn the Koran?

Here's the colloquy from today's "Good Morning America":

STEPHANOPOULOS: You know, when we spoke several years ago, you talked about how the process of globalization was changing our understanding of the law. When you think about the internet and when you think about the possibility that, you know, a pastor in Florida with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment, to how you interpret it? Does it change the nature of what we can allow and protect?

BREYER: Well, in a sense, yes. In a sense, no. People can express their views in debate. No matter how awful those views are. In debate. A conversation. People exchanging ideas. That's the model. So that, in fact, we are better informed when we cast that ballot. Those core values remain. How they apply can-

STEPHANOPOULOS: The conversation is now global.

BREYER: Indeed. And you can say, with the internet, you can say this. Holmes said, it doesn't mean you can shout fire in a crowded theater. Well, what is it? Why? Well people will be trampled to death. What is the crowded theater today? What is-

STEPHANOPOULOS: That's exactly my question.

BREYER: Yes. Well, perhaps that will be answered by- if it's answered, by our court. It will be answered over time, in a series of cases, which force people to think carefully. That's the virtue of cases.

To me, Breyer is doing nothing more than smearing around the usual platitudes about how judges interpret law and decide cases in the context of ever-changing real world facts and let's have a fine day in the classroom cogitating about the elaborateness of all that.

But maybe you think he's revealing that he thinks that ill-behaved hot-heads in other countries are changing the scope of our First Amendment freedoms, now that the internet transmits every local free speaker's performance art around the world.

IN THE COMMENTS: XWL said:

Unsaid, but implicit, Breyer:

'What fun we could have re-interpreting the Constitution if only Scalia and Thomas would drop dead while we still have Obama as President and a Democratic majority in the Senate'

Seems like he knows there isn't a plurality of justices that agree with his implied stance that freedom of speech should be limited based on the global sensitivities, so he dances around saying what he really wants to say.

If Scalia, Thomas, Roberts or Alito were to leave, and we had the likes of Breyer in the majority in the Supreme Court, all sorts of new 'rights' would be established, and all sorts of old rights would be curtailed.

I think you're right. By the way, "he dances around saying what he really wants to say" has a second meaning, which I know you didn't intend.

"Justice John Paul Stevens is the greatest Justice in Supreme Court history."

Argues Cliff Sloan, a partner at Skadden, Arps, Slate, Meagher, & Flom and a former Stevens law clerk. A key move in this argument is excluding the Chief Justices on the theory that they have extra powers so it's not a proper comparison. Then Sloan has 4 reasons:

First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals....

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.... [He] has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution....

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance....

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas....

Go to the link to see the cases Sloan discusses. I would note that in some of the cases, Stevens has had something akin to the superpower that Sloan used to exclude Chief Justices from the analysis. When the Chief Justice isn't in the majority, the most senior Justice in the majority decides who will write the opinion. As such, over the last 20 years, he's authored many of the important opinions where the liberal side of the Court had the majority. That he wrote the opinion on the side that Sloan prefers isn't the evidence of a personal stamp on the law that Sloan would have us think.

Once Sloan gets to identifying and excluding the the competition for greatest Justice, the argument falls badly apart. He has to really strain to minimize Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. He lost me here, but you've got to give Sloan credit for writing what would be a strong entry in a competition requiring an essay titled "Justice John Paul Stevens is the greatest Justice in Supreme Court history."

Judge Richard Posner on Philip Hamburger on judicial review.

A review — titled "Modesty and Power" — of the book "Law and Judicial Duty."

Hamburger believes deeply in judicial modesty. He argues that what has come to be called judicial review was intended to exemplify rather than to reject judicial modesty, which is why the framers of the Constitution took the power for granted, and so felt no need to talk it up in the constitutional text....

There is a deep ambiguity in the concept of judicial modesty. Hamburger advocates strict adherence to formal legal doctrines. That is a form of intellectual modesty: no policymaking, no talk of a "living constitution," let the chips fall where they may, fiat iustitia, ruat caelum. An alternative conception of judicial modesty, first clearly articulated by James Bradley Thayer in the late nineteenth century and embraced by Oliver Wendell Holmes, focuses on the consequences for democracy, liberty, progress, and welfare of too free-wheeling a conception of judicial power to invalidate legislation....

Hamburger has fallen in love with the judicial culture that he found in the Anglo-American past, and that he hates the modern judicial culture that is discontinuous with it.

Much more at the link.

Isn't it patriotic to pay taxes?

Let me inflict another McCain ad you. This one riffs on Joe Biden's statement that they wealthy ought pay more taxes, because "It's time to be patriotic ... time to jump in, time to be part of the deal, time to help get America out of the rut."



Of course, the McCain campaign is thoroughly justified in taking Biden's statement and running with it, but let's give Biden a chance to defend himself. I certainly think he's being honest and believes, as Oliver Wendell Holmes, Jr., put it "Taxes are the price we pay for civilization." I think it's is patriotic to pay our share for the civilization we get from the government that taxes us. (But let government give us civilization for the price.)

Anyway, here's what Biden is saying today:

"Catholic social doctrine as I was taught it is, you take care of people who need the help the most. Now it'd be different if you could make the case to me that by giving this tax cut to the very wealthy, everybody else was going to be better off. We saw what happened the last eight years when we gave that tax cut."

He then explained his statement, first made at a rally in Sarasota, FL, two weeks ago, that asking the wealthiest Americans to accept tax hikes would be patriotic. And he added that the tax rates would still be lower than they were under the Reagan administration.

"I tell you, Democrats,” Biden said, gritting his teeth. "Don't you step down from anybody telling you that we don't value, we don't have American values. … I want this debate about values! I want this debate about American values."

Yes, don't you step down. Stand up! Stand up for American values.

By the way, would you want the government to adhere to Catholic social doctrine?

ADDED: Why does Biden only give 0.06 to 0.31% of his adjusted gross income to charity?

IN THE COMMENTS: campy said...

Theocracy! Wall of separation!

Oh wait, he's a dem. Never mind.

Yeah. Good point. Imagine if Sarah Palin backed up one of her political opinions with the assertion that it comported with the doctrine of her church. I will wait and wait for Andrew Sullivan to denounce Biden as a Christianist.

Palladian said....

The government is a lot like the Catholic church: an unaccountable, mystical authority that issues unquestionable edicts from a faraway domed temple ministered over by unelected robed clerics who announce their decisions by occasionally blowing smoke through their chimneys.

So maybe the dome in that "Dome" ad was St. Peter's!

Do you really think Justices Stevens and Ginsburg are about to create Supreme Court vacancies?

Do you imagine that they stay on the Court only because they don't want George Bush replacing them? Here's the AP:

The oldest two justices — half the court's liberal wing — top the list of those considered likely to retire during the next presidential administration. Despite Stevens' and Ginsburg's apparent vigor, change on the Supreme Court is more likely than not over the next four years.

"One would think that over the course of the next four years the actuarial tables would catch up with the oldest members, as they do for us all," said Pepperdine University law professor Douglas Kmiec.

Stevens is 88. Ginsburg is 75. Let's check those actuarial tables. I'm looking at the most recent life table from the National Center for Health Statistics. (PDF – 2004.) A white female who is now 75 has a life expectancy of 12.8 more years. So if Obama is elected and wins a second term, Ginsburg can outlast him and even the first term of the next President.

Now, Stevens is 88 and male. Surely, he can't hold on, you're thinking. But you are wrong. The life expectancy of a 90 year old white male is 4.3 years. 6.o for 85. So do the math. Looks like a good 5 years.

[Tom] Goldstein predicts only Stevens will retire during the next four years and not before he surpasses Oliver Wendell Holmes — who stepped down two months shy of his 91st birthday, in 1932 — to become the oldest sitting justice. That would happen in February 2011.

It's funny to think of a man that old engaged in what seems like the rather childish behavior of record-setting. But if Stevens is into record-breaking, would he just try to beat Holmes by one day or would he try to set the most unbeatable new mark that he could? And what about that other record? William O. Douglas served on the court the longest: 36 years and 7 months. The man who took his comfortable seat was John Paul Stevens. The date: December 18, 1975. So he needs to go to July 19, 2011 to beat that record.

Think people will get fired up about Supreme Court appointments this fall? Perhaps not.

ADDED: I was just reading articles from the NYT archive about the Stevens appointment. This is from January 12, 1976, by C. Herman Pritchett, a polisci professor:

President Ford's appointment of John Paul Stevens to the United States Supreme Court continues and underlines the striking contrast between Republican and Democratic policies on Supreme Court selections.

Republican Presidents have consistently considered the Court as a law court, members of which should have past experience on lower Federal or state courts. Democratic Presidents have seen the Court as a policy court, and have consistently appointed to it men from public life with substantial experience.

(Here's the PDF of the article, which you might have to pay for.)

Isn't it amazing to think how differently that would be written today? For one thing, someone who favored the Democrats' approach, as Pritchett does, would never concede that the Republicans see the Court as a "law court" and the Democrats see it as "policy court." You never even hear those expressions these days, and you don't even find the idea embodied in that term "policy court" presented in a positive light. Today, both sides claim their judges follow the law and accuse the other side's judges as importing policy preferences into the decisions.

Pritchett was looking at the record beginning with the constitutionally monumental year 1937. He acknowledges 3 big exceptions to the Republican pattern: Earl Warren, Lewis Powell, and William Rehnquist. He summarily discounts them: Eisenhower viewed the Warren nomination as a mistake, and Powell and Rehnquist were "spur-of-the-moment selections made by Mr. Nixon under great pressure." Of the 16 Democratic nominees, Pritchett counts only 3 that had judicial experience, and for 2 of those — Fred Vinson and Thurgood Marshall — it was "little more than an incident in a distinguished public career, and hardly figured as a factor in their selection."

Pritchett definitely thought the Democrats had it right. He cites Felix Frankfurter — who hadn't been a judge before he went on the Court — who supposedly made "a careful study of his predecessors" and "concluded that the relationship between judicial experience and success on the Court" — there's a soft variable! — "was absolutely zero."

Can you image the uproar if Barack Obama echoed Pritchett's views today?

IN THE COMMENTS: Bissage writes:

I’m just going to say this much: I strongly suspect that some of you people who think high-achieving people fight to retain their status because they live for the hope of seeing the downstream effects of their work have probably never worked for a high-achieving person.

I’m not saying that to start a ruckus.

I’m just saying.

And this makes me realize I accidentally deleted a paragraph of my original post! I had intended to say that individuals who keep their jobs into old age have demonstrated to us that they are not the retiring kind. I would assume they love their work, live in it, and even believe that it keeps them alive, sharp, and in the world. You would do better to watch for people in their early 60s to retire, because these are the people who have not yet revealed whether they have a vision of themselves as retirees. An 88-year-old Supreme Court Justice doesn't look to me like someone who's just waiting for the right moment to retire.

Jim Lindgren says:

If Obama wins, I think Souter or Ginsburg will be first.

Stevens is going strong and in great health. Why NOT set the record for serving the longest?

I agree. Let him set a fine example of strength in super-old age. Is there some 50-year-old with more to give? Why would he think so?

Are dissenting opinions vanity or dishonesty?

Tony Mauro has an interview with Supreme Court Justice Samuel Alito:

Alito ... commented on Roberts' efforts to achieve greater unanimity on the Court, even at the expense of making broad rulings. Alito thinks there is merit in the idea, and says Roberts has already "worked to prevent fractured opinions." But Alito says Roberts has not made the pitch for unanimity to the justices as a group. For his part, Alito says, "I don't feel too strongly about writing separate opinions."

But he says Roberts' campaign points up a problem that any appellate judge "struggles with," namely, how far to go in compromising in the interest of unanimity and giving clear guidance, without crossing the line into endorsing "something you don't believe in."

Alito recalled that in his early days as a judge on the 3rd Circuit, he heard a judge -- whose name he can't recall -- lecture on the evils of writing dissents. "He said it was nothing but vanity, and that it didn't achieve anything. That's one side of it."

Aw, come on, who was it?

The other side, which Alito worries about, is the dishonesty of signing onto an opinion with which you disagree.

"I think of the analogy of someone coming to your door and asking you to sign a petition," says Alito. "You say no, you don't agree with it, and the person at your door says, ‘Sign it anyway.'"

So, dissenting opinions: vanity or dishonesty? I think it's somewhere in between. It's not really dishonest to sign on even though you disagree. Once a majority of the Justices have one opinion, it will be the precedent in future cases, and you'll cite it and follow it then. What difference does it make if you start following it before it issues? Should you always do that then? Should we agree with the unnamed Third Circuit judge who said that dissenting opinions were nothing but vanity? I'd say that is going too far, but reading dissenting opinions, you can encounter a lot of unseemly preening. Still, there is an important place for dissent:

Justice William J. Brennan, Jr., published an article in the January 1986 Hastings Law Journal, “In Defense of Dissents,” confessing that when he first came to the U.S. Supreme Court, he did not write a single dissent, although 42 of the 56 opinions he authored in 1985 were just that. So why dissent?

After all, the law is made by those who command the majority, not the outsiders. Even Justice Oliver Wendell Holmes, the "Great Dissenter" at one point opined that dissents are generally "useless" and "undesirable." Justice Potter Stewart labeled dissents "subversive literature."

But by the time he wrote the article Justice Brennan was a true believer in the power of dissent. In this way flaws are demonstrated in the majority’s legal analysis, thereby laying the basis for future corrective action. And a dissent holds the majority accountable for the rationale and consequences of its decision. "At the heart of that function is the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side."

Too much antagonism toward dissent -- in judicial opinions and elsewhere -- betrays a fear that one's arguments are flawed. But that doesn't apply to what Chief Justice Roberts has talked about, which is simply narrowing the scope of the decision to the point where it can eliminate the disagreement.

"These formidable people think freedom is so valuable that it is worth dying for."

A Brit's admiration of America:

We are inclined, in our snobbish way, to dismiss the Americans as a new and vulgar people, whose civilisation has hardly risen above the level of cowboys and Indians. Yet the United States of America is actually the oldest republic in the world, with a constitution that is one of the noblest works of man. When one strips away the distracting symbols of modernity - motor cars, skyscrapers, space rockets, microchips, junk food - one finds an essentially 18th-century country. While Europe has engaged in the headlong and frankly rather immature pursuit of novelty - how many constitutions have the nations of Europe been through in this time? - the Americans have held to the ideals enunciated more than 200 years ago by their founding fathers.

The writer makes a connection between our old Constitution and our willingness to fight wars. Do you see that connection?

ADDED: There is the converse notion, expressed by Oliver Wendell Holmes, Jr. in Missouri v. Holland:

[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago.

So instead of seeing the Constitution as providing the foundation for the wars fought after it was ratified, one can also see these subsequent wars as giving meaning to the Constitution. These two views aren't contradictory, but mutually reinforcing.

The euphemisms and abuses of old age.

The Boston Globe has a story headlined "Rehnquist surrendering his golden years to court":

Chief Justice William H. Rehnquist left the hospital July 14 and issued a firm statement: ''I want to put to rest the speculation and unfounded rumors of my imminent retirement."

The next morning, he climbed into his wheelchair and, with considerable assistance, made his way to his Supreme Court office.

At 80, Rehnquist is undergoing treatment for thyroid cancer. He has trouble walking and talking. Like all cancer patients, Rehnquist has the right to look forward to a full recovery. At the same time, he should acknowledge that almost anyone else his age, suffering from his disabilities, would be retired.

Can we stop and think before indulging in the euphemism "golden years"? At some point, you're not going to seem polite, you're going to seem sarcastic.

But let's read on. This is an article about Justices staying too long on the Court, and, as you may remember, I'm promoting less polite discussion of the problem of life tenured judges clinging to power. The Boston Globe is duly impolite:

In recent decades, Supreme Court retirements have played out like lab experiments, testing whether people in powerful jobs would retire if they did not have to. The answer, in most cases, has been no.

Oliver Wendell Holmes Jr. remains the role model for all modern justices in legal thinking. Alas, he may also be the role model for never acknowledging the need to retire. Historians still recount how Holmes, at 91, slept through arguments using a stack of law books as a pillow.

Justice William O. Douglas, a passionate liberal, suffered a severe stroke in 1974, his 35th year on the court. But Douglas was determined not to give President Ford, a Republican who had led an attempt to impeach Douglas, the satisfaction of choosing his replacement. According to ''The Brethren: Inside the Supreme Court," by Bob Woodward and Scott Armstrong, Douglas allowed himself to be wheeled to the bench in a state of near-total incapacity, while aides struggled to mask the smell of his incontinence bag....

Since most of the court's work takes place behind closed doors, and each justice has a team of clerks, the public rarely sees the full effects of a justice's infirmities. ...

[Thurgood] Marshall and Douglas considered themselves heroes for serving so long rather than have a conservative replace them. But each had a chance to leave gracefully, at a normal retirement age, and have a Democratic president appoint his successor. Instead, they opted to keep hearing cases into their old age.

Rehnquist, too, could retire and have a president of his party appoint a like-minded successor. But he has been on the court so long, he probably doubts it could function without him.

Those who believe they are indispensible, who occupy a position where they purport to be beyond politics, yet manipulate the politics of the next appointment -- these are the people we are forced to trust with the nation's most profound questions of power and freedom.