Wednesday, February 1, 2017
I've written a brief take for First Things on the Gorsuch nomination, "Gorsuch After Scalia."
Here's the opener:
The president’s introduction of Judge Neil Gorsuch to the nation as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia’s death gave us a lift we sorely needed. Finally, something to be at peace about in our public life.
And a bit from the middle:
In my (pre-election) Supreme Court round-up for this journal last year, “The Court After Scalia,” I suggested that “no new justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” I was wrong. Judge Gorsuch can and will make it through, and the Court will be better with him on it. The biggest reason why someone of his caliber and judicial character can get confirmed now, though, is that the balance of the Court will not be altered by his confirmation but simply reset to where it was before Justice Scalia’s death. If the next opening comes from a vacancy left by Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg, the wheels may yet come off the wagon.
Tuesday, December 13, 2016
The federal government's RLUIPA suit against Culpeper County (Va.) for denying permit to Islamic group
The United States Department of Justice filed a lawsuit yesterday against Culpeper County, Virginia. The suit alleges that the County's denial of a "pump-and-haul" permit, which had the effect of preventing the Islamic Center of Culpeper from constructing a small mosque on land it purchased in the county, violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The facts alleged in the complaint add up to what look to be winning claims. If anything, I'm wondering why there hasn't also been a private suit as well (as far as I'm aware anyway).
Also, as a matter of litigation strategy, is there a good reason that the DOJ didn't also include a Free Exercise claim, something like an as-applied version of the Hialeah case? I understand that the RLUIPA claim would be much easier to prevail upon. But including a Free Exercise claim in which intent to discriminate could be in issue would open the door to more extensive discovery, which in turn could have the effect of prompting a quicker resolution. Any thoughts?
Monday, December 12, 2016
Two very different people on my mind when thinking about this passage from Legutko's The Demon in Democracy this morning were Rod Dreher (whose online endorsements led me to read the book) and Ted Olson (whose comfort with judicialized social restructuring in the name of constitutional liberty is characteristic of one prominent strain in today's ruling class):
Today's mainstream, like the erstwhile communist ruling class, takes over the mechanisms for creating laws and regards it as its exclusive property to be used for its own goals. The modern state openly, even proudly carries out the policy of social engineering, intervening deeply in the lives of communities while enjoying total impunity, which is guaranteed by its control of lawmaking and law enforcement procedures. A markedly important function of the law, to act as a barrier to political hubris, was lost or significantly weakened. Instead, the law has become a sword against the unresponsiveness and sometimes resistance of society to the policy of aggressive social restructuring that is euphemistically called modernization. The law in liberal democracy--as under communism--is no longer blind. No longer can one envision it as a blindfolded goddess holding the scales to determine guilt and punishment. It is now, as it was under communism, one of the engines that transforms the present into the future and the backward into the progressive. The law is expected to be endowed with an accurate picture of what is going to happen in the future so that it can adjudicate today what will certainly happen tomorrow.
Source: Rysszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies 96-97 (Encounter Books 2016, translated by Teresa Adelson) (emphases added).
Monday, November 28, 2016
Last week, Quinta Jurecic suggested at LawFare that an essay/book by moral philosopher Harry G. Frankfurt would be "a good place to start" learning about Donald Trump's relationship to truth. If Jurecic is right, and in many respects she seems to be, then we are in rough shape already. But the Jurecic/Frankfurt take is just a good place to start.
Jacob Levy's tweet-say from this morning provides an even more unsettling, but essential for that reason, line of thought on this topic.
Levy's core claim is that Trump's promulgation of "easily fact-checked nonsense" is useful in providing "sheer shows of power and dominance" that occur when "subordinates" repeat and support Trump's obvious untruths:
The power to make someone who *knows [that] you speak untruths* repeat your untruths is profound, and big obvious lies ("2+2=5") are best for it. Trump repeatedly did this kind of thing to his subordinates over the course of his campaign, testing who was the most faithful kicked dog.
If Levy is right, and it's hard to disagree however unpleasant it is to have to acknowledge, Trump deliberately uses falsehood to compromise people within his orbit. This is a common "group initiation tactic," Levy writes, "from childhood bullies to gangs to the mafia: make the new member one of us, don't let them think they're any better."
I could be wrong about Levy being right. Judge for yourself. Regardless, we can still have some hope that separation of powers and federalism can bear the load placed on them by a Trump presidency. And perhaps reflection on the awfulness of moral and political manipulation through deliberate falsehood can help us all appreciate anew the splendor of truth.
Friday, November 25, 2016
"The Dandy and His Turkey," featuring Chief Justice John Marshall as the "polite old man" gently schooling the young fop
For an uplifting, Thanksgiving-themed counterpoint to Marc's post ("Out With the Old, In With the New!"), check out "John Marshall, 'The Dandy and His Turkey,' and true greatness" at Law-RVA. It provides two nineteenth-century schoolbook-reader renditions of a story about John Marshall. In it, a "polite old man" carries home a turkey from market in Richmond for a fashionable young man who couldn't be bothered to do it himself. Only after the old man departs does the young dandy learn that the old man was the Chief Justice of the United States. Enjoy!
Tuesday, November 22, 2016
You Are Still Crying Wolf (re: Trump's racism) & The Wages of Crying Wolf (re: Supreme Court's aconstitutionalism)
This blog post and this law review article, written over forty years apart, have made for a bracing forty minutes or so of reading this evening. I don't recommend reading them together. In any event, both raise the question not only of how to know when a wolf comes as a wolf, so to speak, but also what to do when a wolf comes to a community that celebrates what wolves do to sheep.
Monday, November 7, 2016
What's so great about 5-4 decisions ASAP anyway? Some further thoughts on reducing the Supreme Court to seven Justices.
Picking up on an issue that most Americans aren't paying attention to at the moment, the New York Times has a house editorial titled "A Coup Against the Supreme Court." I recommend you read it and think about the editors' use of language while doing so. Are they not careless in using words like "coup" and expressing worries about "the very survival of the court as an independent body"?
The editors are concerned that the Supreme Court will be short-handed if Senate Republicans don't vote to confirm a ninth Justice. This worry may not matter after tomorrow's elections, but the editorial seemingly contemplates a Democrat as President with a Republican majority in the Senate, so let's go with it.
There is currently one vacancy on the Court. Three more may emerge over the next few years if one uses the number of Justices aged eighty years or older on the Court as a reasonable indication of the number of vacancies that could occur. With four appointments, the next President may have an opportunity to shape the future of the Court, and of the constitutional law promulgated by that body, in a way that hasn't been seen since FDR.
Should the next President be trusted with that profound responsibility on her own? Would the editors of the New York Times be so convinced of the duty of Senators to confirm presidential nominees to the Supreme Court today if they believed Donald Trump were likely to win tomorrow? Or might it be that our Constitution's requirement of Senate serves a practical purpose by preventing that unilateral executive action?
I've previously argued that now is the time to reduce the size of the Supreme Court from nine justices to seven. I continue to believe that is the best path for the Court and for our country.
Many of my reasons match Michael Stokes Paulsen's arguments for bringing the Court down to six in "The Case for Shrinking the Supreme Court." I also see the attractions of the arguments offered by John McGinnis and Eric Segall about how an eight-Justice Court might be good for America. With an even number of Justices, though, both of these proposals present a risk of an evenly divided Court. People overestimate the negative consequences of such a division. But there is an admitted cost of disuniformity when lower court decisions go different ways on the same legal issue. If there were seven Justices on the Court, the problem of persistent even splits would not be much greater than if there were nine.
With seven Justices, it would only take four instead of five to conjure up a new constitutional right that lasts as long as a majority of the Court wants it to last. And it might be a bad idea to make it even easier to make up new rights. But the flip side is these invented rights could be undone by four votes as well. Live by the four, die by the four. And worries about that kind of reversal might induce the Justices to exercise more self-restraint. The six- and seven-Justice Court that Chief Justice Marshall presided over in the early nineteenth century, for example, didn't give rise to a series of constitutional rulings undone by later courts. And maybe Justices who have seen the size of the Court reduced on their watch and recognize their own responsibility for that reduction would be less adventuresome than they otherwise would be.
One wonders whether the editors of the New York Times have given thought to the possibility that it might be better if the Court able to operate for a time outside the kind of fevered environment that descends on Washington whenever there is a confirmation hearing.
Why not lower the temperature with a pause? Drop to seven, then let the current vacancy and the next one go.
The editors' favored Justices would still hold a majority on the Court. And the lower federal courts would remain as they have been shaped by President Obama over the past eight years.
Does our country really need to go through all that we go through with a confirmation process just so that we can make more 5-4 decisions a reality? Does the Court?
Asking these questions is nothing like calling for a coup. The size of the Supreme Court is left up to ordinary legislation. And there's nothing special about nine.
Some of the Court's best years came with a composition of seven. Congress has twice before acted successfully to reduce the size of the Supreme Court at a time of presidential transition. It can do so again.
If the Republicans control the House and the Senate, they can pass legislation anticipatorily reducing the size of the Court to seven, effective as of the next vacancy. President Clinton can veto that legislation, for sure, but she won't be able to fill any vacancies without a majority of the Senate to vote on and for any nominee.
If that were to happen, the Republic would endure. Or so we may hope. And if it doesn't, it won't be because the next President didn't get her nominees confirmed to a nine-Justice Court.
And now let us step back and be real.
All of this has assumed, along with the editors of the New York Times, that we will be looking at divided government after tomorrow's elections, with President Clinton in the Oval Office and a Republican majority in the Senate. If that is how things shake out, though, Senate Republicans would most likely confirm Judge Garland if they can. He is likely to be less dangerous to the Constitution--and older--than a Clinton nominee.
If anything, though, this state of affairs would strengthen the arguments for moving prospectively toward a seven-Justice Court. Justice Garland is even less dangerous to the Constitution on a soon-to-be-diminished Supreme Court.
"Our hearts will smile, even as our eyes glisten" -- Justice Scalia Bar Memorial and Special Session of the Supreme Court, November 4, 2016
On November 4, 2016, the Bar of the Supreme Court of the United States passed Resolutions honoring Justice Antonin Scalia at a special meeting at 1:45 p.m. in the Upper Great Hall of the Court. That was followed by a 3 p.m. special session of the Supreme Court of the United States in which those resolutions were presented to the Court by the Attorney General. Chief Justice Roberts responded on behalf of the Court.
The audio and transcript of the special session, as well as a video of the bar meeting, are available at the Supreme Court's website. If you have time for just one thing, go straight to the transcript of the special session. Acting Solicitor General Gershengorn's remarks provide an abridged version of the resolutions, and Attorney General Lynch's comments show how commitments to professional excellence in the law can promote respect even for those who take different perspectives on the law.
Most powerful and moving of all were Chief Justice Roberts's words. I'm not sure whether the emotion comes through the same way on the audio, but those present in the Courtroom heard and saw the Justices' affection and grief for their departed colleague.
Chief Justice Roberts's concluding paragraphs:
Justice Scalia was not restrained in stating his views clearly and forcefully, but he never ceased being our dear friend and valued colleague. He wrestled with ideas, not people, and he knew the difference.
He made our days warmer, livelier, and happier. He sang loudest and best at our traditional birthday celebrations. He raised his glass highest to toast others' happy occasions, and his rich laughter filled our halls and our hearts.
Justice Scalia's life reached far beyond the law. He would never have said that the law was what was most important to him. He was steadfast in his Roman Catholic faith, and he was devoted beyond measure to his beloved wife, Maureen, and the nine children they raised.
On occasions such as this, speakers often employ so many laudatory adjectives that the effect can be to sow doubt rather than admiration. But no one who knew Justice Scalia, however they viewed his work, would dispute for a moment that he was patriotic, principled, loyal, courageous, engaging, and brilliant.
Those of us on the Court will miss Nino, but we will continue to feel his presence throughout this building. Our ears will hear his voice in this courtroom when advocates invoke his words searching for powerful authority. Our minds will move to the measure of his reason in our chambers when we study his opinions. And our hearts will smile, even as our eyes glisten, when we walk the halls and recall how happy we were whenever we saw him rounding the corner.
Sunday, November 6, 2016
John Finnis on the central case of the legal viewpoint and radically corrupted Potemkin legal systems
The sixth annual Scarpa Conference at Villanova (2011) was devoted to the work of John Finnis. Most of the papers delivered at the conference were published in Volume 57, Issue 5 of the Villanova Law Review. Those interested in learning more about the methodological starting point for a sound understanding of jurisprudence will profit from attending to the exchange between Michelle Dempsey and John Finnis regarding Chapter 1 of Natural Law & Natural Rights.
Re-reading these essays recently, I took note of Finnis's description of "the central case of the legal viewpoint" and his discussion of "radically corrupted Potemkin [legal] systems." Quotations below.
Saturday, November 5, 2016
The fifth of November is a day we've been urged to remember (at least some of us anyway). It is Guy Fawkes Day, with evening celebrations marking Bonfire Night.
Unlike Rick, I was not exposed to Guy Fawkes as a child through school celebrations. Instead, pretty much everything I know about Guy Fawkes I've learned from the internet. I wonder what he'd think about the popularity of his mask. I have no doubt, though, that he'd be amused to learn how "guy" is used these days, and how that came about from the way his death has been celebrated over time.