November 13, 2004

The President and the Supreme Court.

Jeffrey Rosen has a Week in Review piece in tomorrow's NYT that looks at what sort of Supreme Court President Bush may be able to produce in the next four years. "Strict constructionism" and "originalism" are discussed, and then comes this part about what the Times loves to call the "federalism revolution."
In 1995, for the first time since the New Deal, the court said there were limits on Congress's power to regulate interstate commerce. And since then, the court has struck down 33 federal laws. During its first 70 years of existence, the court invalidated only two.
33 federal statutes have been stricken down on federalism grounds? There are two cases that strike down parts of federal statutes on the ground that they are beyond the scope of the Commerce Power! There are a few more federalism cases, but 33? Does Rosen just mean 33 federal statutes have been stricken down on all sorts of grounds, including the constitutional rights grounds that were favored by judges of the Warren Court era? And why compare the current Court to the earliest days of the Supreme Court. People love to point out how few laws were stricken down in those early years, but it says very little about the level of activism of this Court. Compare this Court to another Court of the modern era, when federal statutes are plentiful and courts feel secure in the role of judicial review.

Rosen raises the alarm:
[T]he federalism revolution hasn't quite delivered what conservatives hoped. Each time the court's strict constructionist justices have appeared on the brink of striking down environmental laws or health and safety laws, the moderates, Justice O'Connor and Justice Kennedy, have stepped back from the brink. They are less willing to overturn 60-year-old precedents that might strike at the core of the regulatory state.

"If the 'Constitution in exile' were taken seriously, a lot of environmental regulation could be under attack, occupational safety and health regulation, even possibly some securities regulation," said David Strauss, a law professor at the University of Chicago. "Minimum wage and maximum hours laws? You never know."
The reader is urged to picture a "brink" -- a precipice up there that we would have tumbled over already if not for "the moderates" O'Connor and Kennedy. Without moderates nailing down the center -- we're left to think -- the Court would roll things back to the way they were when FDR proposed his Court-packing plan (reviving the so-called "Constitution in exile").
[F]ormer administration officials say all of the names on Mr. Bush's short list for the Supreme Court are considered strict constructionists who are closer to Justice Scalia than to Justice O'Connor.

"An entire generation of lawyers have been reared and trained in Justice Scalia's philosophy," said Jack Goldsmith, a professor at Harvard Law School, who led the second President Bush's Office of Legal Counsel after Mr. Yoo. "So the Bush administration is likely to be more successful than its predecessors in finding reliably conservative nominees."
I very much doubt that many law students are being "reared and trained" to think like Justice Scalia! My sense is that the Warren Court vision of constitutional law still prevails among law professors. In fact, it's probably safe to guess that Justice Scalia's positions are routinely derided in most law school classrooms! It is true at least that students have read the conservative Supreme Court opinions (though I bet they were informed by their lawprofs about how wrong and bad these decisions are) and they have been able to participate in the Federalist Society if they wanted to pursue the conservative viewpoint. But the liberal position continues to dominate.

That said, I'm sure President Bush will be looking for conservative Justices -- not moderates like O'Connor and Kennedy -- and that he will be able to find them. But it is alarmist to suggest that these people would radically dismantle federal law, tossing out statutes like those that protect the environment and guarantee minimum wages at a shocking new rate.

UPDATE: Law students or recent law students are welcome to send me their observations. For example, I just received this from one law student:
[A]s for law students being reared and trained in Justice Scalia's philosophy, I'd be shocked out of my socks if there were a professor in my law school who doesn't think Scalia is a wacko and curmudgeon who is blind to the "realities of the situation." Every SCOTUS case we've ever discussed (now halfway through my second year), the professor criticizes the Scalia opinion, sometimes to the exclusion of discussion of the majority opinion! So, you are EXACTLY right. And keep in mind that [state name deleted] is probably the reddest of the Red States. If he's that despised here, I can't imagine it's any better anywhere else.

Well, I graduated from law school in 1996, so maybe that's not "recent" but it's a good deal more recent than anyone who's likely to be considered for a Supreme Court appointment in the next four years. I can certainly tell you that professors at Harvard Law School were very much interested in presenting Scalia's views but equally interested in deriding them, to the point that my first-year criminal law class actually sent a petition to Justice Scalia to come and give us the other side of the story. This being Harvard, he did just that and had a toe-to-toe debate with our professor, Alan Dershowitz. Suffice to say that they did not agree on much.

On the other hand, the existence of the Federalist Society certainly does give young lawyers a sufficient exposure to a comprehensive Scalia-like judicial philosophy that you can expect to see more and more people who can be depended upon by Republican presidents to be genuine Scalia-like conservatives. So Rosen's essential point isn't all that off the mark.

I agree with that second-to-the-last sentence, as my original post shows. But Rosen is overeager to make a point and in the process drags in much dubious information. My post doesn't even begin to deal with the blather about "strict constructionism," which Scalia himself makes a big point of disavowing.

YET ANOTHER UPDATE: Another email:
I can affirmatively assert that at my school, the University of Chicago (I'm the class of '00), the professors took Scalia very seriously. Some seemed to disapprove of originalism, others rather liked it. But everyone ... approached Scalia and originalism as a vital form of constitutional jurisprudence.... [at Chicago], Scalia's writings and teachings -- along with law and economics and formalism and feminist jurisprudence and other theories -- are certainly taught and treated with respect. And why wouldn't they be? Scalia, like many other originalists, are federal court judges after all. It would be pretty silly to train lawyers to exercise contempt toward a judicial philosophy that moves so many of the arbiters of the lawyers' future clients' cases.
The emailer is quite right (and lucky to have gone to Chicago). One of the reasons I became a law professor was to find for myself the experience I felt I was denied as a law student: exploring the full scope of the debate about law.

STILL MORE: No Oil For Pacifists writes about his experience in law school in the early 80s:
I was one of the few conservatives in law school. My views were tolerated at best, derided at worst. I remember a First Amendment course taught by an old-time socialist. He was smart and funny, but increasingly frustrated with my interjections. So, after calling on me about halfway through the semester, he paused for a few seconds, put hands on hips, and said "Carl--you're a wrong thinker and should be liquidated." He never solicited my views again.

He probably thought he was being hilarious--and perhaps that conservatives have no feelings so why not torment them and have fun at their expense?

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