When a Dane County Judge throws out the Wisconsin collective bargaining reform law, should progressives or conservatives celebrate?

It's not obvious, though the protesters at the Capitol yesterday — they were there to support the Chicago teachers strike — exulted at the news.

If you step back for the long view — like between now and November 6th — and consider the near certainty that the decision will be reversed on appeal, the spectacle of liberal judicial activism is good for the conservative cause.

(Here's some info on the case, if you're not familiar with it.)

WaPo skews presentation of a poll on the Obamacare case to bolster the argument that the Court should defer to Congress.

"Do you think the Supreme Court justices will rule on this case mainly on the basis of law or mainly on the basis of their partisan political views?" That's a question on a new WaPo/ABC poll that comes right after a question about what people want to see happen.

Only 25% of Americans — random Americans, not likely voters — want the law upheld in its entirety. 67% want it stricken down in whole (38%) or in part (29%). But the WaPo article on the poll is headlined: "More Americans expect Supreme Court’s health-care decision to be political." On the is-it-law-or-politics question, 50% think the Court will go mostly on partisan politics, and only 40% think the Court will do what it purports to do and decide the case based on the law (or even mainly based on the law).

Do you see what WaPo is doing there? Highlighting the answer to the is-it-mostly-political question serves the agenda of those who want the law upheld. These people side with President Obama, who argues, conspicuously, that if the Supreme Court strikes down the law, it will be behaving in an inappropriately political manner. By stressing the poll respondents' mistrust of the Court's neutrality, the WaPo gives the impression that they agree with people who think the Court should stand down and let the work of the democratically elected Congress prevail. After all, if the Court doesn't have a firm legal ground for an exercise of power, it makes no sense for it to trump Congress.

Now, those who want the law upheld are massively outnumbered. According to this poll, there are 2.7 times as many people who want the Court to strike the law down. But if what the Court is really doing is partisan politics, this much larger group doesn't matter. It's as if these people would like a second trip through Congress. But Congress voted, the President signed the law, and that's that, politically. In that view, the 67% don't count.

But let's examine that poll question again: "Do you think the Supreme Court justices will rule on this case mainly on the basis of law or mainly on the basis of their partisan political views?" Consider the missing detail.  I would like to see the answer to these questions: If the Supreme Court strikes down the health care law — in whole or in part — do you think that will be a decision based primarily on constitutional law or a decision based primarily on the Justices' political opinions? If the Supreme Court upholds the health care law, do you think that will be a decision based primarily on constitutional law or a decision based primarily on the Justices' political opinions?

Since we don't know what the respondents think the Court is going to do, we can't tell which Justices are being accused of behaving politically. What portion of the 50% who say it's mainly political think all 9 Justices, whichever side they take, will be mainly political? As they calculate, on the fly, what the Court "mainly" does, they could be thinking: Well, Scalia/Kagan is about 90% political, and Thomas/Sotomayor is about 30% political... etc. etc.... that seems to add up to I'd say probably, overall, 50+% political....

You see the problem! It's quite possible that many respondents were thinking of the Justices they don't like, fearing those are the ones who'll have the majority, and accusing them of deciding politically. Do the respondents have an opinion on the legal question itself? The pollsters could have asked: Do you think, purely as a matter of constitutional law, that the statute is constitutional or unconstitutional? Then: If the Supreme Court decides the case that way, do you think it will be a decision based mainly on law?

Instead, we get a crude question, with all these details hidden. On the poll results page, the first link above, we see "Questions 14 to 18 held of [sic] future release." Questions 12 and 13 are the 2 questions I've discussed here. So there is more detail, and it is now being withheld. The article, the second link above, does reveal something of what kinds of additional questions were asked:

Almost twice as many conservative Republicans think the court will decide on the basis of the law rather than politics, 58 to 33 percent. Liberal Democrats are more skeptical, saying by an equally wide margin that the court will put politics first.

That's not quite what I want to know. Perhaps there's more. I'll be interested to see when and how WaPo dribbles it out.

By the way, the photograph under the headline shows a woman holding up a sign that says "Obamacare Is Immoral," tipping the reader to think that the threatened political decision is the decision that strikes down the law. Since this, I think, is something WaPo does not want to see happen, there's a message to the Court: If you strike down the law, it will be seen as mere politics.

"Judicial activism is just a charge that conservatives and liberals make at each other when they don’t like a law being struck down."

"It’s really vacuous. It’s a cheap shot that all politicians love to take because it’s easy to level."

One year into Obama's presidency, David Brooks wrote "he has come to seem like the sovereign on the cover of 'Leviathan'..."

"... the brain of the nation to which all the cells in the body and the nervous system must report and defer."

Brooks is talking about the bookcover that illustrates the previous post ("Romney, the man who says 'marvelous'"). He writes that "the illustration shows the British nation as a large man. The people make up the muscles and flesh. Then at the top, there is the king, who is the head and the mind."

Does Brooks marvel at Obama visualized as a large man and  we us the People as the muscles and flesh that constitute his body? Did Brooks abase himself and slobber that much?

In many ways, Barack Obama has lived up to his promise. He has created a thoughtful, pragmatic administration marked by a culture of honest and vigorous debate. When Obama makes a decision, you can be sure that he has heard and accounted for every opposing argument. If he senses an important viewpoint is not represented at a meeting, he will stop the proceedings and demand that it gets included.

Oh, brother.

If the evidence leads him in directions he finds uncomfortable, he will still follow the evidence. He is beholden to no ideological camp, and there is no group in his political base that he has not angered at some point in his first year.

But his has become a voracious pragmatism. Driven by circumstances and self-confidence, the president has made himself the star performer in the national drama. He has been ubiquitous, appearing everywhere, trying to overhaul most sectors of national life: finance, health, energy, automobiles and transportation, housing, and education, among others.

He is no ideologue, but over the past year he has come to seem like the sovereign on the cover of “Leviathan” — the brain of the nation to which all the cells in the body and the nervous system must report and defer.

Oh, my lord. Defer! Defer has been a big word these past 2 weeks, as the Obama administration demanded deference from the judiciary.

The country is now split on Obama, because he is temperate, thoughtful and pragmatic, but his policies are almost all unpopular....

Many Democrats, as always, are caught in their insular liberal information loop. They think the polls are bad simply because the economy is bad. They tell each other health care is unpopular because the people aren’t sophisticated enough to understand it. Some believe they can still pass health care even if their candidate, Martha Coakley, loses the Senate race in Massachusetts on Tuesday.

That, of course, would be political suicide. It would be the act of a party so arrogant, elitist and contemptuous of popular wisdom that it would not deserve to govern. Marie Antoinette would applaud, but voters would rage.

Oh, really? How's that rage going these days? Rage or deference? What are you seeing?

If I were President Obama, I would spend the next year showing how government can serve a humble, helpful and supportive role to the central institutions of American life. Even in blue states like Massachusetts, voters want a government that is energetic but limited — a servant, not a leviathan.

But as brooks are not oceans, Brooks is not Obama. And Obama did not take that advice. "Political suicide" was committed. Is it noticeable? The health care bill was passed, even after Ms. Coakley lost. And now, the people — who made it perfectly clear at the time and continue to make it clear that they did not like Obama's policies — look to the Court to save them from the Leviathan, and the Leviathan says defer.

Stripping the political rhetoric out of Obama's preemptive attack on a Supreme Court that would strike down the ACA...

... Attorney General Eric Holder files the 3-page, single-spaced letter demanded by the 5th Circuit explaining the Administrations actual position on the judicial review of federal statutes.

The letter — predictably — presents the most ordinary and elementary propositions of constitutional law going back to Marbury v. Madison.

ADDED: Instapundit says " It’s all pretty unexceptional except for the final sentence." Ha ha. The last sentence is the claim that "The President’s remarks were fully consistent with the principles described herein."

See, I think this is a wonderful opportunity to compare political speech about the courts to the speech by politicians to the courts. If you get used to these different styles — as I am, having read this stuff for decades — you can translate back and forth. Speak political rhetoric and I can turn it into a version that is fit for judicial consumption. Show me the way you're talking to the judges and I can whip it into demagoguing-the-public form. And then there's the meta level, where Instapundit is, where you juxtapose them and leverage new critique.

Say I, from meta meta land.

This week, Paul Clement argues that a federal statute is constitutional.

After last week's superb performance attacking the constitutionality of the Affordable Care Act in the Supreme Court, former Solicitor General Paul Clement was in federal court — the 1st Circuit Court of Appeals — yesterday, defending the constitutionality of the Defense of Marriage Act.

There are 2 cases on appeal:

In the case brought by Martha Coakley, the Massachusetts attorney general, [Feder District] Judge Tauro found in 2010 that DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to federal benefits. In that case, Judge Tauro agreed in 2010 that the law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

On the equal protection ground, Clement argued that Congress's legitimate interest was to have "a uniform definition" of marriage rather than to use state law, which varied from state to state (even though marriage laws have always varies from state to state, and Congress otherwise relies on state law to determine who counts as married for federal purposes).

Maura Healey, the assistant attorney general who argued on behalf of Ms. Coakley, told the panel that DOMA requires Massachusetts “to live with two distinct and unequal forms of marriage.” She added, “This is a burden that Congress has imposed on Massachusetts simply because it doesn’t like the fact that gay people are getting married.”

Stuart F. Delery, the Justice Department’s acting assistant attorney general for the civil division, also argued before the panel, saying that the court should hold DOMA to heightened scrutiny because it targets “a group with a long and deep history of discrimination.”

Here's the recorded argument, which I have not yet listened to.

Isn't it wonderful that we have this opportunity to examine what we've been saying for the past week about the role of the judiciary and deference to democratic decisionmaking? I assume many people who want the ACA upheld want DOMA stricken down, and many who want to keep DOMA want ACA crushed. So have at it. And please be consistent.

As a law professor, it's easy for me to argue any of the 4 possibilities, so I'll let you start the conversation. First, a survey:

DOMA and the ACA...
	Both are constitutional.
	Both are unconstitutional.
	DOMA is constitutional but the ACA is not.
	The ACA is constitutional but DOMA is not.
	I haven't done the legal analysis to know.
	The answer is whatever the highest court says in the end.
pollcode.com free polls

Explain your answers in the comments.

Laurence Tribe says Obama "didn't say what he meant" about the Supreme Court and needs to "clarify."

"I don’t think anything was gained by his making these comments and I don’t think any harm was done... except by public confusion."

ADDED: Remember when Larry Tribe pushed Obama (his former student) to nominate Elena Kagan to the Supreme Court because "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind"?

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

I wonder how well Kagan is doing scaling the convolutions of Kennedy's brain these days. As I said at the time: "if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played."

5th Circuit reacts to Obama's remarks on the Supreme Court case and orders response on whether the Administration thinks courts may strike down a federal law.

Jan Crawford reports:

Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."...

The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick -- both Republican appointees --r emained silent, the source said.

Fascinatingly intense. Obviously, the DOJ will concede the power of judicial review, as historically recognized in Marbury. But the court is asking it to spell out exactly what the Administration thinks the limits are. Obama — like many pundits and politicians — throws around the ideas of judicial "restraint" and "activism," but the judges themselves tend to speak in terms of "saying what the law is" and putting the law — constitutional and statutory — in the proper hierarchy — with the Constitution on top — with no element of judicial will injected into the process.

It will be interesting to see if the Administration will endorse such a bland — but highly deferential — view of the judicial power or if it will explicate some more nuanced notion of when courts ought to let important/economic legislation prevail.

"It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

Said Senator Orrin Hatch, commenting on President Obama's preemptive attack on a Supreme Court opinion that would strike down the health care law. Obama, referring to the Court as "an unelected group of people," said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Now, obviously, Obama's attack on the Court is vulnerable to the criticism that it's incoherent because there are other times when he honors the Court precisely because it does strike down laws passed by democratically elected legislatures. Indeed, he seems to use his democratically obtained power to appoint Supreme Court Justices who will, for example, strike down democratically enacted laws restricting abortion. He will lavish praise on the life-tenured, aloof-from-politics judges who produce decisions he likes.

Which brings me back to Hatch's quote: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

I had to laugh.

Because I've been living in that fantasy world for almost 30 years.

It's called the legal academy.

Amongst the conlawprofs, it's an idea so standard as to be boringly banal: The courts should vigorously enforce individual rights, confidently stepping up to a countermajoritarian role, but when it comes to the "structural" parts of the Constitution — like federalism and separation of powers — the courts should defer to Congress.

The legal left sounds like Newt Gingrich?

A Wall Street Journal editorial says:

[T]he left has taken to mau-mauing the Justices by saying that if they overturn the [Obamacare] mandate they'll be acting like political partisans. The High Court's very "legitimacy" will be in question, as one editorial put it—a view repeated across the liberal commentariat....

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you'll show you hate sick people—as if the Court's job is to determine health-care policy.

This is the left's echo of Newt Gingrich's threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?

Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them. But what exactly did Gingrich say? The WSJ provides no link or exact quote, but I Googled it for you.

Here:

[BOB SCHIEFFER, on CBS’s “Face the Nation"]: [O]ne of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.
I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?

GINGRICH: If you had to.

SCHIEFFER: You would?

GINGRICH: Or you instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word “benediction” and “invocation”? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it. Now clearly since the congress has....

SCHIEFFER: What if he didn’t come? What if he said no thank you I’m not coming?

GINGRICH: Well, that is what happens in impeachment cases. In an impeachment case, the House studies whether or not — the House brings them in, the House subpoenas them. As a general rule they show up. I mean, you’re raising the core question — are judges above the rest of the constitution or are judges one of the three co-equal branches?

Like I said: big difference.

If you won't acknowlege the difference between people criticizing judges in words and Congress physically compelling them, you're not in a good position to credibly explain why striking down the Affordable Care Act should not be understood as judicial activism.

When the Supreme Court indulges Congress's indulgence in fuzziness.

SCOTUSblog says the Scalia dissent in Sykes v. United States is "awesome." Justice Scalia writes:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

I remember the time a colleague of mine yelled at me for saying exactly that. She was working on a complicated project dealing with how courts should sort out the details in for Congresses that indulge themselves with fuzziness.

Judge Posner says maybe it wouldn't have been so bad if FDR's Court-packing plan had passed.

"It would have increased turnover on the Court, reduced the average age of justices, made an appointment to the Court less prestigious, and made the justices more cautious about bucking strong political forces, because they would have learned that Congress was willing as well as able to rein them in. We would probably have been spared the excesses of the Warren Court, which turned Roosevelt’s idea of the 'living Constitution' on its head: where Roosevelt wanted the Court to stand aside so that the government could deal with the distinctive problems of modernity, the Warren Court responded to the surging crime rates of the 1950s and 1960s by increasing the rights of criminals."

That's snazzily put, but it's really saying the same old thing about judicial restraint. Deference to legislatures in FDR's day served a liberal goal, and the activists were the conservatives. In later decades, judicial activism was mobilized for liberal ends. Over time, conservatives and liberals have used both judicial restraint and judicial activism to suit their ends.

The more fundamental question is whether we'd be better off if the judicial branch were subordinated to the political branches. I would think that conservatives and liberals alike — the full range across the political spectrum — benefit from a system of separated powers with 3 branches that are well-balanced and strong within their own spheres.

We can fight forever about exactly what the 3 spheres of power really are and what constitutesproper balance — when courts should act and when they should defer to the democratic branches — but I balk at the invitation to be wistful about the missed opportunity to weaken and subordinate the courts.

"I don’t believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism."

"She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent."

Jeff Sessions, one of 6 Senators on the Judiciary Committee voting no, just now. But 13 Senators voted yes — all the Dems, plus Lindsey — so the smooth path to confirmation is as clear as it's always been.

"I do think she was boxed in," said lawprof Heather Gerken about Sonia Sotomayor.

"Virtually any answer other than the answer she gave ends up evoking cries of judicial activism. The result, unfortunately, is that judges are portrayed as automatons or activists, when most are neither."

She was only boxed in by the limitations of her own intellect, expressive skill, and nerve. So explain to me why she belongs on the Supreme Court.

That thing Sonia Sotomayor said about courts making policy.

The video:



"Court of Appeals is where policy is made." We're going to hear that line dissected, attacked, and defended over and over. Let's talk about those words.

And let's also talk about the interesting mannerism of placing one's left hand inside one's clothing up around one's shoulder. I know someone who does that at times, and I've given a lot of thought to what it signifies. I have my theory, but I'll save it until some of you weigh in.