Eloquence and Reason Mentioned on The Volokh Conspiracy

A mention of Eloquence and Reason on The Volokh Conspiracy here and a guest post from me about the book here. A taste of my comments:

Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision. Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted. Judges have always played a role in this social process, even if theirs is rarely the last word on a subject. There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.

Will Sotomayor Be the New Rutledge?

As some academics and court watchers wonder whether Judge Sonia Sotomayor is a first-rate intellect or a legal visionary, I couldn't help but think back to Franklin Roosevelt's selection of Wiley Rutledge for the Supreme Court in 1943. Few analogies are perfect, but consider some similarities. Rutledge, like Sotomayor, was a sitting judge on the federal court of appeals. Although he served on the D.C. Circuit, he spent many years West of the Mississippi and was touted as a diversity candidate—i.e., he would improve geographic diversity to the Supreme Court. Additionally, Rutledge found himself pitted against other candidates, most notably Learned Hand, with strong advocates (including Felix Frankfurter) hoping for a brilliant addition to the High Court.

Supporters of Rutledge, including Francis Biddle, needed to counter Learned Hand's stellar legal bona fides. They made three arguments to Roosevelt and others. First, at 71, Learned Hand was too old to have a significant impact on the Supreme Court. Beyond presidential legacy, some also argued that appointing a someone advanced in years exposed FDR to charges of hypocrisy after his court-packing initiative.

Second, Rutledge had the chops to do the Court's business. A memorandum by Herbert Wechsler arranged by Biddle argued that Rutledge's legal opinions were sometimes overwritten, but nevertheless demonstrated a "soundness of judgment, a searching mind, a properly progressive approach to legal issues."

Third, as John Ferren recounts, Rutledge came to be perceived as a "trusty liberal." What, exactly, did that mean? The obvious part is that he would not wreck the New Deal, something Wechsler pointed out. But I think it meant something more to liberals within the administration hoping to make more inroads on questions of civil rights and liberties. Wechsler pointed out "civil liberty problems" among those Rutledge handled as a judge, and concluded that "his work leaves no room for doubt that these values are safe in his hands." Biddle described Rutledge as "a liberal who would stand up for human rights, particularly during a war when they were apt to be forgotten."

Today Rutledge is never mentioned in the same breath as Cardozo, Brandeis, or Holmes. But consider what he achieved in his six years on the Court. Rutledge authored Thomas v. Collins, an overlooked decision involving union organizing that provided an important link between the solitary speaker model of free expression and the group advocacy model that we now recognize. He voted to overrule Gobitis. On those occasions Robert Jackson or Hugo Black preferred a narrower reading of the First Amendment, such as Jones v. City of Opelika or Terminiello v. Chicago, Rutledge often provided an important vote for free speech protections. He authored Kotteakos v. U.S., which helped define "harmless error" review in criminal appeals involving non-constitutional claims. Rutledge dissented in Everson v. Board of Education, arguing that the Establishment Clause forbade public funds to be spent on transporting children to parochial schools. However, he joined Black's majority opinion in Korematsu v. U.S. upholding the wartime internment of persons of Japanese ancestry.

Anatomy of a Supreme Court Pick

According to ABC News, President Obama was drawn to Sonia Sotomayor early on, but took the time to weigh various factors including her living-the-American-Dream background, her intellectual heft and philosophy, how much political capital would have to be expended to win confirmation, and the gains to be had as well as the skirmishes to be avoided.

It surely didn't hurt that Sotomayor has a stronger educational pedigree than Antonin Scalia, the rags-to-riches story of Clarence Thomas, a comparable tenure on the federal courts as Anthony Kennedy, and could galvanize important parts of the electorate like the selection of Thurgood Marshall or Sandra Day O'Connor.

While past presidents have cared about different specifics, I would venture to say that most presidents have cared about roughly similar things in weighing competing priorities. The entire enterprise involves seeing a nominee through the prism of narrow considerations such as a president's policy agenda and how best to secure favorable news cycles, as well as long-term considerations such as party politics, electoral prospects, and constitutional legacy. Franklin Roosevelt in the 1930s and 40s and Ronald Reagan in the 1980s—two presidents with lofty constitutional ambitions—faced an analogous set of considerations. Even if you wish to remake the Judiciary in your own image, you must contend with the practicalities of governance.

Constitutional Borrowing

A robust constitutional culture will permeate the beliefs and actions of individuals, sometimes subtly, sometimes in highly visible ways. For instance, as I argue in Eloquence and Reason, the rise of the First Amendment to its privileged place has encouraged advocates and jurists to draw upon the ideas of free speech, assembly, and religion in order to bolster or dislodge a wide array of governing values.

In Constitutional Borrowing, 108 Michigan Law Review (forthcoming 2009), Nelson Tebbe, Brooklyn Law School, and I tackle a number of the questions presented by a legal order in which the interpenetration of ideas is the norm.

The abstract follows:

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Jilting the President for Congress

Cross-posted at Legal History Blog:

An intriguing aspect of West Virginia State Board of Education v. Barnette involves the Justices' choice of partners in making the sale to the American public that the Constitution embodies a more robust right of individual conscience than what they believed a few years earlier. The background assumption many scholars work with today is that, all things being equal, the Supreme Court prefers not to go it alone, particularly when the institution anticipates controversy ahead. Robert Jackson's early drafts of the opinion suggest that his preferred partner originally was the presidency. This makes sense on a number of levels, given that executive branch officials had flooded the zone on the matter, Jackson and others may have honestly been swayed by their statements and actions, and independent reasons exist for thinking that the modern presidency enjoys an influential role in framing constitutional questions.

But Jackson at some point appears to have changed his mind during the opinion writing process, and the published opinion not only sought to erase the appearance of presidential cooperation but also gestured toward Congress. Sandwiched between two sentences in Barnette on the risks to the Constitution posed by overzealous local officials is this sentence: "The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the Army contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation."

Note that the argument is only that the passage of a recent federal law and the existence of a textual commitment to Congress "contrast[] sharply" with a relatively minor claim by local officials to work in the federal interest, not that the federal law or Congress's power to raise an army is actually violated by a mandatory flag salute. In other words, a clash of federal and state interests is a strong suggestion rather than a firm conclusion.

What caused this aspect of the switch and what does it reveal?

The decision to swap partners merits further digging and rumination. For now, let me offer a few additional thoughts beyond my prior writings. First, the development may reflect no more than respect for formalism, since the administration was not a party to the action. On the other hand, DOJ was not present to defend the flag law or Congress's power to raise an army, either, so while formalism may explain in part a decision to jilt the presidency, it doesn't completely explain the Court's decision to take up with Congress. The argument that the federal flag law preempted conflicting state and local laws was made in the DOJ lawyers' article, pressed by the ACLU as amicus curiae below, and rejected by the three-judge panel that first heard the action—which means that the Supreme Court ended up watering down the argument, but found it useful anyway to imply federal-state friction. Still, at least the argument had already been made somewhere during the lawsuit.

Second, formalities aside, Congress is often an attractive partner because many Americans think of the legislative branch as most in tune with popular preferences. As an institution, it also has a hard time talking back in a single voice. Given the collective action problems involved in repudiating the Barnette Court's inconclusive assertion of a federal interest in all matters concerning the flag, the Justices may have felt it reasonably safe to imply that the Court and Congress were in accord on the matter. Since it hadn't issued a strong endorsement of Gobitis already, Congress was unlikely to do anything to shatter the illusion of Judiciary-Congress cooperation (though you can never fully predict a reaction to legal decisions).

Third, seeking cover behind legislative prerogatives may reflect some hangover effect from the New Deal years—including increased suspicion of presidential authority left over from the court-packing crisis. It is possible, of course, to argue that FDR was not nearly as popular in the 1940s as he had been in the 1930s. If this is true, then the contingent, oscillating nature of a particular office-holder's popularity may have affected the ultimate presentation in Barnette.

Photo credit.

When Does the Supreme Court Acknowledge Out-of-Court Developments?

Cross-posted at Legal History Blog:

What do Brown v. Board of Education, West Virginia State Board of Education v. Barnette, and Lawrence v. Texas and all have in common? All three rulings expanded constitutional freedoms by invalidating a state law or local practice. In each instance, the Justices faced the prospect of overruling a much criticized opinion, which they did more or less in vindicating a pro-rights position. Where they diverged dramatically is in the extent to which decision makers proved willing to acknowledge that external events helped alter their jurisprudence.

Imagine a sliding scale measuring the transparency of a jurist's treatment of how cultural change impacts doctrinal content. Lawrence is most open about out-of-court factors causing "serious erosion" of controlling precedent. Justice Kennedy discusses two types of influences: (1) the actual practice of enforcement of anti-sodomy laws, which imposes a "stigma" and "carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example"; and (2) "substantial, and continuing criticism, disapproving of [Bowers v. Hardwick's] reasoning in all respects," from academic objections to disapproval by state courts, international courts, and foreign nations.

Barnette comes next, as the published decision, too, contains references to academic objections to Gobitis and the collateral legal consequences faced by the Jehovah's Witnesses. But the Court was originally poised to go further. Early drafts repeatedly referenced the "responsible statements of the Department of Justice," "psycopathic patriotism" unleashed by Gobitis, the drawbacks of the "flag salute movement," and the Nazi persecution of Jehovah's Witnesses abroad. Jackson eventually acceded to the concerns of his law clerk and Harlan Fiske Stone that these statements were unseemly or violated the canons governing judicial craft. Instead, Jackson gutted Gobitis largely by disagreeing with its reasoning point by point.

On this scale, Brown, perhaps the decision in which the average citizen most expects to find a resounding recitation of the degradation inflicted by the law, proves least willing to confront the social world directly. The only changed circumstance discussed at any length is not altered moral views on segregation or systemic harms exacerbated by the courts, but rather the evolving importance of public education. That social fact is cited to avoid a strong originalist methodology as well as to distinguish Plessy v. Ferguson but not overrule it outright. Even before the Justices could agree to end racial segregation in schools, they were united against inflaming the people's passions unnecessarily.

This raises questions that the study of history can help answer. First, under what circumstances do judges feel free, or even under some pressure, to acknowledge out-of-court developments? On this view, the Supreme Court may have felt most confident that it was jumping on the bandwagon in Lawrence, but was most reticent in Brown. But were the Justices responding to elites or broader attitudes? To what extent did it matter that they were dealing with race, religion, or sexual orientation?

Second, how much of the difference in presentation is due to changing norms of judicial writing? According to this way of thinking, the legal process school still constrained how legal outcomes were explained in the mid-twentieth century but by 2003 we had not only all become realists, many of us had become social scientists as well. Do changes in presentation reflect a relaxed orientation on the part of jurists or an accommodation of what consumers of judicial opinions expect?

Third, the Supreme Court's portrayal of its own work may reveal competing, equally plausible models of representative democracy. Brown contemplates judicial participation in constitutional lawmaking, but arguably treats reason as something ideally practiced according to relatively self-contained precepts; denying extrajudicial influences preserves some notion of integrity. Lawrence, and to a lesser extent Barnette, may represent a more unruly approach, in which "public reason" is achieved in a complicated dance involving institutions interacting with broader social forces. If so, such a model may be less pretty or intrinsically coherent, but its virtues may lie in the mediation of historical complexities as forthrightly as possible.

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The Law Clerk's Memo to Robert Jackson in Barnette

Cross-posted at Legal History Blog:

One of the more fascinating documents in Robert Jackson's files on West Virginia State Board of Education v. Barnette is an undated memo from "JFC"—Jackson's first law clerk brought over from the Department of Justice, John F. Costelloe.

One idea suggested by Costelloe involves when courts ought to permit an individual a First Amendment exemption from an otherwise valid law. Costelloe wonders how to protect rights without interfering with the "many items of school discipline which will inevitably offend the tastes of students"—a concern that bedevils jurists to this day. He proposes a kind of "substantial difference" test: "a minimal requirement for refusal to salute the flag in a public school should be a showing of difference in political, ethical, or religious opinion to a degree which may fairly be called substantial." Given his mention of political and ethical objections, Costelloe envisions an approach that could be adopted in contexts beyond the flag salute. Jackson apparently resisted this suggestion and finessed the standard.

Another set of comments establishes that some members of the Supreme Court and their clerks were aware of, and found important, certain extrajudicial events and perspectives. First, Costelloe advises Jackson that it is possible to describe the persecution of the Jehovah's Witnesses as a perversion of Gobitis, and not in any way sponsored by the Court: "Because lawless mobs may have misunderstood its meaning is not in itself a reason to change it." This comment echoes one separately made by Chief Justice Harlan Fiske Stone. But notice that these criticisms help to explain why the final opinion downplays the extent of the persecution, but they do not disprove that out-of-court events affected the Justices' thinking. Nor do the changes to the text alter the likelihood that Jackson himself believed that Gobitis bore some responsibility for certain anti-democratic attitudes and behavior.

Second, Costelloe refers to the "June 16, 1940 radio address [in which] Solicitor General Biddle said that the Attorney General had ordered that an investigation be commenced." A reference in the opinion to this speech was later deleted.

Third, Costelloe endorses Jackson's plan to cite to the article by Victor Rotnem and F.G. Folsom, Jr., two lawyers from the Civil Rights Division of the Department of Justice—which I have called an unofficial amicus brief. Costelloe notes that the article "contains many statements of opinion quite inapposite to a formal report by a governmental agency or statement by a governmental opinion speaking in that capacity," and that it is therefore "intended more for advocacy than for exposition." Even so, he concludes: "I should think that it would be desirable to indicate the position of these gentlemen in the Department of Justice." Though Jackson and others likely read and considered DOJ's extrajudicial appeal, this reference was excised from the opinion before publication.

Fourth, the law clerk "think[s] it would be well to work into the opinion rather exhaustive references to the secondary materials on the Gobitis case. The list of Gobitis haters begins with Powell, . . . and continues until we reach the anonymous student notes. Their practical unanimity is, I think, of some significance and possibly of some help." These out-of-court writings make the final cut. Why cobble together all of these sources unless you are trying to suggest one consensus has rapidly eroded and another has emerged—supported by thoughtful Americans, including members of the Executive Branch?