Here are some notes on the Federalist Society-sponsored conference, "The Legacy of the Rehnquist Court."
1. There was plenty of talk about what a smart person, what a good person, what an interesting person, what a tennis-playing person, what a family-loving person, what a geography-loving person, what a time-limit-enforcing person, etc., etc., Chief Justice Rehnquist was. He exercised "remarkable command over the courtroom," per Solicitor General Paul Clement.
2. Solicitors General pretty much have to speak well of the Court, don't they? I love being a law professor.
3. Rehnquist "never lost his characteristics as a Wisconsinite." (Clement again.) Evidence: He liked the Badgers, he kept the courtroom open even when it snowed, and he rigidly enforced the time limits on oral argument.
4. If you want to read the key Rehnquist opinion of all time -- according to former Solicitor General Walter Dellinger -- it's the dissent in Fry.
5. According to former Solicitor General Theodore Olson, "the best opinion of the modern era" is Justice Scalia's dissenting opinion in Morrison v. Olson, and he wasn't just saying that because he was a party and only Scalia sided with him.
6. Dellinger recounts that a few days after the 9/11 attacks he was asked how it would change the way the Court would balance security and liberty, and he said the Court would tilt the balance more toward
7. Lawprof John O. McGinnis said the most important federalism case of the Rehnquist era was the school vouchers case.
8. I didn't take many notes while I was on the dais. Sorry! C-Span recorded the panels though, so maybe you can watch it sometime.
9. When Justice Scalia rose to give his speech after lunch, he got an instant and long standing ovation. He got another standing ovation when he finished. (By the way, a lot of free lunches were served!)
10. Scalia honored his "former leader" for achieving three important things: producing majority opinions (fewer than 10% of the cases lack a majority opinion), preserving the public's esteem for the Court (I'm impressed!), and seeing that all the Justices remained friends with each other (during the entire period, every Justice was always friends with every other Justice).
11. Per Scalia, we shouldn't refer to the eras of the Court by the names of the Chief Justices. It would be better to use the names of the Presidents, but then he wondered if John Roberts would be pleased to have the current Court called the Bush Court. I try to hear if he's really saying that he's sad that there's no Scalia Court.
12. Scalia sets out to refute the accusation that the Court is a "conservative activist" court. He says that if you calculate the average annual number of statutes invalidated by the Warren, Burger, and Rehnquist Courts, you'd find the numbers are, respectively, 1.44, 1.76, and 2.16; but that the Rehnquist Court was much less likely to strike down state laws. He says that state law is a more important reflection of democratic will than federal law. But that sounds conservative to me, for two reasons: 1. the preference for state law, and 2. the likelihood that many of these were cases where the Court decided against constitutional rights claims.
13. His best argument was that what really makes the Court look activist is that Congress is activist. He marvels at Congress's "sheer inventiveness" in thinking up new ways to test the limits of its power: it's "a legislative Thomas Edison." Cases that reveal this: Plaut, Boerne, Printz. He says that any Court would have to respond to these affronts to constitutional law.
13. A better test of activism is how often the Court overrules a case, he says, because it's here that the Court is never forced to act. And the Burger and Warren Courts overruled cases about twice as often as the Rehnquist Court.
14. Accusations of activism, he says, are a "thinly veiled" way of saying you don't like the outcome.
15. He thinks the notion that the Constitution's meaning evolves doesn't work because it's too undefinable -- unlike originalism, which is neutral, he says (in what I judge to be his least believable assertion). He likes that originalism is catching on across the whole spectrum of the Court and says: "Bad originalism is better than no originalism at all."
16. He gets stuck trying to remember the name of that Commerce Clause case last term or even what it was about. The audience cues him: Raich, medical marijuana. Strange to forget that.
17. He mispronounces the word "desuetude." He mispronounces it the same way I did for a long time: de-SUE-i-tude. It's a lawyerish thing -- isn't it? -- to fixate on "sue."
18. Thanks to the Federalist Society (and the Bradley Foundation) for hosting a nice event.
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23 comments:
Re: desuetude. Heh!
Or perhaps, like many a bookish sort (I mean early on in life), he learned that word without ever really hearing it spoken, and then it got "stuck" there.
His way does sound more lawyer-like, and slip-up is somewhat endearing, given the general impression of him.
#8 - How dare you have manners!
#9 - Yes, but were the free lunches worth what participants paid for them?
#11-That does seem a little weird, doesn't it? Especially since justices and courts do seem to involve over longer periods of time than that of a term or two of a presidency.
In general, what, no GPS system? (Me, neither.)
GPS wasn't even an available option for the Audi TT, which surprised me. The salesman told me people don't really like it. They think it will be good, and they pay a lot for it, but then they don't use it.
Meh! "Evolve" not "involve." Though things do seem get more involved as time goes on.
My problem is that I don't need another distraction in the car, and I definitely don't want to pay for the equivalent of a back-seat driver. That, I can have for free.
Yeah, Wisconsin students are great!
Reader: Taking notes during a talk is rude?? I usually take notes to focus my attention, but I wasn't in the mood to focus my attention. Also, I wasn't interested in taking notes on the personal reflections from the former law clerks. It had nothing to do with etiquette.
Whether open to criticisms of being self-serving or not, Olson has a point; the Morrison dissent is a towering accomplishment, a tour-de-force of conservative Constitutional thought and a fearsome declaration of intent on Scalia's part. It is not the first dissent that Scalia wrote on the court (that was Tashjian v. Republican Party of Connecticut, 479 U.S. 208; I knew you werre wondering); it is not even the first dissent he wrote that burnt your fingers to pick up (by my mark, that'd be Johnson v. Transportation Agency, 480 U.S. 616), but it is the first genuinely red-hot dissent that lifted the roof off the court, and left visible to all who beheld it the strange absence of clothes on the emperor. For my money, Olson has it about right; only Lopez comes close in the modern era, and even that loses out for want of the sheer, elemental force of the Morrison dissent.
However, having praised Scalia to the point almost of eulogy, and with regard to Ann's point (12), I must confess to frustration with Our Hero. I've previously complained (see Less nebulous than you'd think, 9/23/2005, at pp.2-4) that the liberal strawman of the Rehnquist court being "activist" because it strikes down statutes is fundamentally silly, because one cannot seriously attempt to define activism based on the raw number of times it exercises an entirely neutral tool of the judicial power. "[A] decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional . . . the conflation of 'action' with 'activism' is false; the court cannot be activist simply by adhering to the constitution . . . [and] it cannot be anything other than activist if it defers to the legislature by creating legislative authority where none existed. One can be activist not only by taking action where none is required, but by refusing to take action when it IS required." (id. at 3) (emphasis added). To some extent, Scalia's remarks are unhelpful because even in the process of rebutting the liberal's flawed charge, he is lending credence to their flawed methodology. Scalia, more than almost anyone, should be aware that the result is less important than the process; by attacking the former rather than the latter, he is helping legitimize the charge by making it seem merely a difference of emphasis, which is precisely what the liberal critics had argued in the first place. Accordingly, I respectfully dissent.
I wouldn't worry too much about that Simon, it is abundantly clear what history will record as Fat Tony's towering accomplishment, ... tour-de-force of conservative Constitutional thought and ... fearsome declaration of intent....
Hint, you're not even close, but if you studied it some, conservative originalism vs. conservative activism would become much more clear to you.
No, Ann, of course not. You had said "while I was on the dais," and in my first read-through I construed that too narrowly (as in, you're speaking, and you see some cool thing someone's doing so you pause and make a note for the blog). I guess I took that particular comment of yours as somewhat tongue-in-cheek and the mental picture I got of such a pause amused me. So my comment back was supposed to be droll, but clearly didn't work.
Believe me, I'm an inveterate note taker myself--almost to the point of transcript. Otherwise, my mind wants to wander in other directions.
Gerry: And I didn't even write out the part where I'm critical of Rehnquist for not being hardcore enough about enforcing federalism.
There are still some attorneys who demand their secretaries take shorthand notes, with the note pads.
My mother took three years of Gregg Shorthand, and then tried to get me to learn it too!
Much to her dismay, I've never taken written notes. I always set up a tape recorder, and then re-listened to the tapes in the bathtub, or while nodding off.
Although, nowadays, I guess you have to get permission to do that?
Who would know?, what with tape recorders, and videocams for that matter, in cells and watches.
Peace, Maxine
Quxxo:
To quote Shepherd Book, "coming from you, that means almost nothing."
"A legislative Thomas Edison" - Wow! I've been reading where at a recent lecture, Justice Scalia was treated like sh** by the audience. What a shame. I would travel a fair piece to see/hear a SC Justice speak, but not a President.
"I've been reading where at a recent lecture, Justice Scalia was treated like sh** by the audience."
I think you mean his recent speech at the AEI about the use of foreign law - you can find the video here and the transcript here.
All that happened was that a few pondscum protesters kept asking irrelevant questions (oddly enough, while giving a talk on international law, Scalia didn't particularly want to answer questions about the clearly related subject of quail hunting), and were eventually asked to leave. Why a few morons would be more interested in getting themselves on TV (or at least, C-SPAN) rather than engaging Scalia on an extremely important topic is beyond me, but I do rather feel that this is one of the reasons it's so hard to get Scalia to appear on C-SPAN in the first place, which means that these idiots aren't just embarassing themselves, they're doing us all a disservice.
Think back to the Newdow oral argument - this will happen at every argument if you put the Supreme Court on C-SPAN4. Yet another good reason why cameras are a dead letter.
"originalism might reduce interpretive choice, but it certainly doesn't eliminate it. Why do legions of people seem to think that such a vague inquiry will end the spectre of judges having to make actual decisions?"
As per our previous conversation, I entirely agree that originalism doesn't eliminate judicial discretion, but it certainly limits it, and at very least, provides a concrete methodology against which a judge can be evaluated. This wasn't my point, it was someone else's, but I'm goin gto hijack it anyway: the reason that Randy Barnett gets to talk about "Scalia's infidelity" is because Scalia has an announced judicial philosophy against which his occaisional departures therefrom can be judged. It would be meaningless to talk about "Souter's infidelity" because what is it he's "departing" from? One has to be married in order to stray.
Regarding Rehnquist's opinions, I think it's almost a cliche at this point, but I think it's an accurate one, that his opinions essentially went downhill when he went from being the Lone Ranger to The Chief. I mean, Ann linked to Fry earlier; if you think about that dissent in the context of the time it was delivered, that's a bombshell. It seems to me to be little less shocking than Justice Thomas' concurrence in Newdow - that's a dissent that makes you sit bolt upright and say "gosh! I can't have read that right!" But you just can't write opinions like that if you're the Chief Justice and your job is to keep the court (and the public) around you, which is one of the two reasons I think is why the opinions became more anæmic as time went by.
Simon: "To some extent, Scalia's remarks are unhelpful because even in the process of rebutting the liberal's flawed charge, he is lending credence to their flawed methodology. Scalia, more than almost anyone, should be aware that the result is less important than the process; by attacking the former rather than the latter, he is helping legitimize the charge by making it seem merely a difference of emphasis, which is precisely what the liberal critics had argued in the first place."
I didn't summarize every point Scalia made. He attacked the activism charge in many ways, including the one I think you are suggesting.
Gerry: "Boy, if there was ever a post which was going to cement in any Kossite's head that didn't already think it that you are a "right-wing law professor," this is certainly it.
"It sounds like it would have been great to attend. Glad you had fun."
Did I say I had fun? I have also participated in American Constitution Society events when invited to speak. In both situations, I am cordial with the people who are there and, in speaking, I say what I think. The fact is that I was rather critical of Rehnquist, even though the event seemed to be mainly about praising him.
Ann,
I appreciate that, but even if that's the case, I still don't think he's being helpful. The desire to go into full-on fisk mode, demonstrating that even if one accepts the flawed premise of one's opponent, their conclusions are still wrong, is overwhelming when that's the case. I get that. But the problem is, that has a tendancy to look like accepting the premise of the accusation. This is exactly the same thing as my problem with the current round of litigation over the FPBAA - who cares if it includes all these various exceptions, unless one accepts the premise that Congress has authority to pass this statute in the first place? I mean, come on, liberals - kick us conservatives where it hurts! Free shot! We evil FedSoc types keep going on about the limits of the commerce clause power, about states rights, about federalism; well, here's your chance to ask us to prove it! By litigating over the particulars (just as Scalia is quibbling the details, it seems to me), you're accepting the underlying premise. Congress didn't have authority to pass that statute, and that's what you guys should have litigated (were liberals not afraid of the consequences of accepting federalism as a principle, that is, but we can already see with the NSA controversy that they're happy to mount an opportunistic appeal to the original understanding when it suits them, after which I'm sure they'll forget it and move on); likewise, striking down statutes is a pitiful and flawed metric for evaluating the "activism" of a court, and that's what Our Hero should have said, in my view.
Now, Scalia has written opinions before which systematically demolish the premise and then go on to show why - even if the premise were accepted - the conclusions are wrong. That's a bit better, but only a bit.
Was Morrison the "Some wolves come in sheep's clothing, but this wolf comes as a wolf" opinion?
Simon - In my opinion, Scalia is a lot more outcome-based than he admits to be, and I'm not just talking about Bush v. Gore. When you say that you're going to define the Constitution "in light of our traditions," you're basically telling the world that you're going to cherry-pick more than 2o0 years of common law, much of which is prejudiced or superstitious, to support your goals.
I'll take Justice Brennan's approach any day. If Scalia is such an originalist, perhaps he can show me the clause that mandates that every word of the Constitution be interepreted forever into the future to mean exactly what "the founders" intended it to me. As a former historian I would like to know how he does that.
- it's not so much the cameras, it is the bebasement of the 'glue' that holds us all together which is alarming, truly alarming. That one of nine, the final resting authority for all that we hold dear and endeavor to be, could be treated in public in this manner borders on the dangerous.
Terry,
First of all, what exactly are you referring to by "Justice Brennan's approach"? I'm honestly curious if you even know, because it seems to me that what you mean is, you prefer Justice Brennan's results. I say that because you complain about Scalia cherry-picking tradition in search of his preferred results, and even if we allow, arguendo, that Scalia gives tradition the expansively authoritative role you suggest -- which, in point of fact, is dubious; see Rutan, 497 U.S. 62 at 96 n1 (Scalia, dissenting) ("I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution") -- while prima facie lauding Justice Brennan's method, which seems to me to be cherry-picking absolutely anything to hand in search of his preferred results. This is essentially the same point I made above about Justice Souter: while it may be fair to say that Scalia sometimes departs from his methodology when he finds the results that would be divined from that methogology unpalatable (and while it is certainly fair to say that, more often than not, originalism does, in fact, yield results that Scalia likes on a normative level), the only reason one can really complain about Justice Scalia's deviancy from his method is precisely because he has a method from which he can (and does) deviate. By contrast, Jutice Brennan cannot accurately be said to ever have departed from his "method" precisely because Justice Brennan's approach was to use whatever tool could be deployed in pursuit of the result that he determined was appropriate, not from the original understanding, nor from tradition, but his own sense of propriety. Bill Brennan was a magnificent writer, a forceful intellect, but none-the-less, quite possibly the model for what a Supreme Court justice ought not to be. Given the choice between Scalia's occaisional deviations to results-oriented jurisprudence, on the one hand, and Brennan, whose entire approach WAS to be results-oriented, I know which I'd pick, and it seems absurd to me that you criticize Scalia for sometimes doing precisely what you are (seemingly uncomprehendingly) lauding Brennan for doing all the time.
As a former historian, perhaps you should consider how you interpret any text: you consider it in light of the context of the time. You demand to be shown "the clause that mandates that every word of the Constitution be interepreted forever into the future to mean exactly what 'the founders' intended it to mean." One scarcely even knows where to begin deconstructing this vapid nonsense.
First, let us begin by dispelling, bluntly, the notion that anyone, least of all Justice Scalia, argues that the Constitution must always (or every should) be construed in terms of what the Founders intended it to mean. Very few originalists are intentionalists, because most originalists are formalists, and intentionalism is flat-out incompatible with formalism.
Now, let me assume that you won't take the word of John Marshall ("[t]o what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained . . . all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation") (Marbury v. Madison, 5 U.S. 137, 176-7), or George Washington ("the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all") (Farewell Address, 1796), let us forget that the Framers argued over every detail of the language, right down to the significance of the punctuation, which suggests a background assumption that the words actually meant what they said (see Barbash, The Founding) and let us pretend for a moment that the fact that the Constitution is written and includes a formal amendment process do not inescapably force the conclusion that it means what it says and can only be changed by the article V amendment process. Put all that to one side for a moment, because if that weren't enough (and it really, really is).
But as I say, put that to one side for just a moment, and consider: how do we treat the words of a statute when that statute does not include a section that defines its terms? The commonly-established rule is that we assume that the legislature used that language the way that anybody uses language, to convey the meaning commonly and plainly connoted by those words at the time of writing. You ask to be shown the clause which says the Constitution's meaning is to be fixed; but first, I would like for you to tell me where I can find the clause of the Constitution which defines the meaning of "the executive power." Or of the "judicial power," for that matter; nowhere in the Constitution is it formally stated what these terms mean. The Constitution does not mention judicial review, it does not mention stare decisis, it does not mention the adversarial system, and yet we know full well that these are part of our legal heritage. Yet they aren't in the Constitution. What's going on?
Well, what's going on is that you are making a strict constructionist argument, and if your goal is to show the absurdity of strict constructionism, you are succeeding. Of course, you are also taking a castle which is not only undefended but indefensible, but no matter. The men who wrote the Constituion did not spell out what habeas corpus was, because they already knew. It was a background assumption that the intelligent reader of the Constitution would also know. They did not define the exact contours of the executive power, because that also was a term whose meaning was understood at the time; there was no need to spell it out. And in America in 1787, it was already known and understood that the judicial power included the power of judicial review, that it included the common law. These are not spelled out because they are background assumptions.
We are beginning to see, I suspect, I you are a former historian.
Which brings us back to your question. The Constitution does not explicitly say, anywhere in it, that its meaning shoud be construed as being static. Nor does it need to. The mere fact that it exists, in writing, with an amendment process; the fact that its language was carefully parsed in such detail; the absence of so much detail; the fact that the Framers went to so much time to conceieve and write it immediatley suggests the context of the background assumption that what they wrote would retain a static meaning.
Your complaints - about Scalia and about originalism - are rendered absurd by readily apparent ignorance.
Simon,
I bet you're happy you invested all that time!
Terry - it's no time at all. And it isn't just for your benefit, you know.
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