Feddie is Right About Kennedy on Kennedy
Feddie’s analysis is dead solid perfect. Kennedy’s decision in the child-rape case is an absolute abomination. Kennedy is a would-be Caesar, handing down rulings as if he considers himself a god. His ego is out of control; his integrity nil.
It’s also worth noting that feddie’s response is the absolute epitome of what good conservative jurisprudence is about: Putting the text and history of the Constitution and laws above one’s own policy preferences. For somebody who so opposes the death penalty, as feddie does, to nevertheless recognize unambiguously that the Constitution does not prohibit it in such cases is to demonstrate a high degree of the very integrity that Justice Kennedy lacks. Nobody, and I mean nobody, on the judicial left would so separate their policy preferences from their objective judgment about the actual meaning of the Constitution. Hail to feddie, and hail to all conservatives whose standards of judgment are likewise unspoiled by their personal preferences.
This is just a stupid slander against liberal judges that illustrates how hollow the judicial activism charge is. For an obvious and recent counterexample see Raich where several of the majority thought the State’s position was wiser than the Feds, but still voted to uphold the Federal statute. Whether you agree with Raich or not (and I have serious problems with it) it was a decision against the immediate policy preferences of judges you frequently accuse of activism.
Now you can always dodge and say while they didn’t like that individual statute they like Federal power, so it wasn’t really against their interest. But then Feddie overall prefers a more restrictive reading of Constitutional clauses in many other cases, particularly regarding abortion, so a more restrictive read of the 8th isn’t really against his interest either.
The judicial activism slur is just an accusation of bad faith on top of the accusation of a bad decision. But the bad faith claim is unwarranted. Its not like conservative judges don’t often write opinions that conveniently fit their policy decisions.
Note, I agree that Kennedy v. LA is a bad decision. I just am sick of this meaningless activism slur.
Tom-
I am not in favor of a restrictive interpretation of the Constitution. I believe that the Constitution should be construed to mean all that is fairly gleaned from the text, structure, and accompanying history. What I don’t favor is using the Constitution as means of imposing a majority of justices’ preferred public policies on the rest of us (see, e.g., Roe).
Okay, but the point still stands: by any reasonable standard of what liberals conceptualize their “policy preferences” as (i.e., we don’t just blindly adore federal power — we actual want things to happen or not happen), liberals have demonstrated on many an occasion their willingness to break from their preference if that’s what they believe the law requires. And conservatives (more often than liberals, Judge Posner argues) are quite willing to jettison original whatever for their policy preferences (see Thomas and Scalia on affirmative action/desegregation cases — particularly Thomas’ utterly pathetic attempt [buried where he must have hoped nobody would notice it in a footnote] in Parents Involved to justify his concurrence against Breyer’s originalist attack).
By restrictive I don’t mean unduly restrictive. I do feel that if would be fair to describe your view of what can fairly be gleaned from the text, structure, and accompanying history as more restrictive than others. Doesn’t mean you are wrong, but, likewise, it doesn’t mean that people who believe that broad Constitutional language fairly allows us to glean such rights as a woman’s right to terminate her pregnancy or an Amish parent’s right to educate his own child rather than send him to the public high school are wrong either.
What I resent is the accusation that those who disagree with you about what can fairly mean are disagreeing with you in bad faith (and who are generally disagreeing with you by taking a less restrictive view of the text). Wrong or not, I think they believe that the Constitution fairly interpreted does recognize those rights.
TomO and David:
Counterexamples show that the “liberal” justices are capable of putting their policy preferences aside (and have done it before) or that the “conservative” justices are not in every instance perfect (though I think the matters you cite are trivial at best).
In other words, all your arguments show is that neither side is blameless. I think we all already knew that.
But do you contend that the “liberal” wing of the court places its policy preferences ahead of the either the most straightfoward or best-supported original meaning of a constitutional provision less often than the “conservative” wing? Such a contention is much more difficult, especially in the Eighth Amendment context where the Court’s majority today highlighted their “independent judgment.”
Incidentally, Raich is a particularly poor example because the conservatives were also taking a position that they probably do not politically support. Raich is a federal power case, not a medical marijuana case–the constituional issue was the commerce clause and the drugs were merely statutory. Seen in that light, the split is completely predictable.
“Nobody, and I mean nobody, on the judicial left would so separate their policy preferences from their objective judgment about the actual meaning of the Constitution.”
This comment does not accurately reflect what happens when judges write decisions in 98%+ of the cases. In those 98%, judges (regardless of their political bent) make their decisions based on what the Constitution, statutory law and common law require. Frequently, these decisions run directly contra to the judge’s personal policy preferences.
I realize you will take issue with what judges do in the remaining 2%, and that’s fine, but don’t portray it as judges applying policy preferences in every case — ask any former clerk — it just doesn’t work that way.
But do you contend that the “liberal†wing of the court places its policy preferences ahead of the either the most straightfoward or best-supported original meaning of a constitutional provision less often than the “conservative†wing?
Well that kind of forfeits the game, doesn’t it? Obviously liberals are not originalist as often as conservatives, because the judicial philosophy liberals adhere to isn’t originalism. I think that liberals and conservatives are roughly equally constrained by their jurisprudential commitments against their policy commitments. I also think that conservatives and liberals both choose their jurisprudential philosophy specifically because it allows them to reach the results they want most (not all) of the time.
(Although, I’m genuinely annoyed that you’d describe Parents Involved as a “trivial” case, given that only the dreaded Kennedy’s concurrence prevented a ruling that — in the eyes of many Americans and particularly many Black Americans — would have gutted Brown v. Board. Cases don’t become trivial just because they demonstrate Thomas and Scalia being flagrant hypocrites).
To be sure, I didn’t mean to say that Parents Involved is a trivial case. Instead, I meant that the matter you complained of (Thomas’s footnote that answers Breyer) is less trivial than, say, rehashing standing in Boumedeine and Mass v. EPA or applying their independent judgment to the Eigth Amendment.
And I would suggest that my question to you only requires you to concede the issue if you cannot articulate a preference-restraining theory that liberal justices use other than (1) plain meaning of the text or (2) the text’s original meaning.
I would appreciate, though will not expect, a response, especially in light of the fact that the liberal wing’s Eigth Amendment jurisprudence. I think it impossible to show that the Kennedy majority’s jurisprudence constrains their policy preferences where their jurisprudence is by definition their policy preferences.
To be sure, I didn’t mean to say that Parents Involved is a trivial case. Instead, I meant that the matter you complained of (Thomas’s footnote that answers Breyer) is less trivial than, say, rehashing standing in Boumedeine and Mass v. EPA or applying their independent judgment to the Eigth Amendment.
I’m not sure what this is supposed to mean, but the point is that Parents Involved is without a doubt one of these most important cases on race relations in the past quarter-century, and Scalia and Thomas have barely even made a gesture at trying to justify their opinions in this or other cases dealing with race-conscious policymaking — a omission whose cause became painfully obvious when Breyer called out Thomas in PI and Thomas had no real response. When conservatives give them a pass on these issues, it naturally makes liberals like me suspicious.
And I would suggest that my question to you only requires you to concede the issue if you cannot articulate a preference-restraining theory that liberal justices use other than (1) plain meaning of the text or (2) the text’s original meaning.
I would appreciate, though will not expect, a response, especially in light of the fact that the liberal wing’s Eigth Amendment jurisprudence. I think it impossible to show that the Kennedy majority’s jurisprudence constrains their policy preferences where their jurisprudence is by definition their policy preferences.
Again, I’m not sure what you’re trying to get at here. Definitionally, any jurisprudential philosophy that isn’t “whatever I’d want if I were God” is constraining as against policy preferences. A philosophy of voting for the alphabetically superior party would serve this purpose. So I assume you want a constraint that you perceive as a legitimate philosophy, which is where we start to slip.
Of course, as Richard Posner would argue, any judicial decision is at some level an expression of “policy” — it represents the policy that the judge thinks some values (adherence to originalism, respect for precedent, accordance to procedural protections) are more important than others (such as their ideal account of the world). By virtue of voting one way, they are performatively arguing that the package of value constraints (which includes abstract philosophical values as well as “real world” ones) bundled up in that position is preferable to them as against the package coming with the other side — if they didn’t think that, they’d vote the other way. Conceptually, then, it’s surprisingly difficult to disentangle the difference between “policy” arguments and philosophical constraints. The agreement to be constrained is, in essence, a policy preference in a literal sense — you prefer it to a variety of other policy alternatives.
That being said, even from within your (to my mind largely mythological, being based off a lot of shaky and/or unspoken analytical distinctions regarding topics like “legitimacy”, “policy preference”, and “constraint”) framework its not too difficult to find liberal constraints. Ely’s process theory would be one very prominent one. Dworkin’s “law as a chain novel” would be another. Breyer’s “active liberty” claims itself a third. Your problem with these is that they don’t sufficiently remove themselves from the realm of normative considerations. But that’s a bad objection, because a) its impossible to remove oneself from the realm of the normative — every choice we make, including whether to supposedly lash ourselves to the mast of a judicial, is a normative decision and b) as I noted in the above link to my own blog, originalism is just as implicated by its links to normative preferences as is any other theory. Breyer might like Active Liberty because it lets him do most of what he wants to do, most of the time, but Feddie likes originalism also because it lets him do most of what he wants to do, most of the time.
Thanks for responding.
I wouldn’t lump Ely and Dworkin so closely together. Ely emphasized process aimed at reinforcing the representative branches of government. Dworkin sought to have Hurcules impose “distributional fairness” on hard cases. Ely’s method derives it legitimacy from the political fact that our system of government is representative at heart and should avoid being “countermajoritarian” whenever possible. It’s a procedural theory Dworkin aims at a substantive (i.e., not procedural) constitutional theory.
While I certainly don’t ascribe to Ely’s rubric, I think the difference between him and Dworkin shows where we disagree. Dworkin enshrined “principles”; Ely highlighted voters. While their two systems may reflect their policy preferences, I would find it very unlikely that a majority of voters now or ever would have favored the bare policy favoritism of Dworkin over Ely’s model. Certainly a majority of constitutional ratifiers would not.
Procedural legitimacy is at the core of what “due process” means, right? Right processes lead to acceptable results? Isn’t that what it means to be constrained by your constitutional theory?
And, please, save the comments about judging by the alaphabet. What you gain in showing your cleverness you lose in showing your ego. If you want a treatise on theory, you’ve come to the wrong place. Let’s do the profession of law a favor and stow the obviously irrelevant nitpicking.
Well, I want to be a professor — if I don’t engage in irrelevant nitpicking about theory, how will I ever get tenure?
I agree that Dworkin and Ely are very different types of liberals (I was just using them as two different ways a liberal jurist might conceptualize constraints). I don’t think that Dworkin is a pure policymaker though — the chain novel analogy is explicitly arguing for why judges can’t just do whatever they want because they are constrained by the need to keep a consistent legal “story”. And Ely’s constraint, though more “democratic” than many other legal liberals, still is neither particularly originalist nor textualist (indeed, it might better be described as “democratic” over both of those things).
And in all seriousness, my theoretical objection to the strong notion of any judicial theory being a extra-normative “constraint” may be theoretical, but that doesn’t make it less valid. Originalism is value-laden — just as much so as the jurisprudence of any liberal. That doesn’t mean there’s no argument for it (because there are other arguments for originalism other than it’s purported value-neutrality and apoliticality), but you can’t make that argument as its key distinction against liberal jurisprudential theories.
“Originalism is value-laden — just as much so as the jurisprudence of any liberal.”
I will agree that Originalism is value-laden (though I would probably clarify by saying that the judges and blog commentors who apply is are value-laden, not the abstract theory), but I don’t think it’s necessary that it’s laden “just as much” as adjudication by Hercules.
I believe Justice Stevens gave me Exhibit A yesterday in Heller by employing an Originalist critique of the majority’s position.
Also, Ely’s “democratic” leanings derive much of their legitimacy from the fact that the text of the constitution pretty clearly leaves the task of solving most problems to the representative branches of government.