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Several people criticized my previous post, which faulted Justice Stevens for writing a book proposing six new amendments to our Constitution. The commenters noted that I have not articulated why it is inappropriate for a Justice to propose Amendments to the Constitution. In truth, I thought this issue was so obvious that it didn’t need much explication, but I will do so here because this is an important issue.

I start with the  fact that Justice Stevens is still an Article III Judge. He has not retired. He is still eligible to hear cases on the Courts of Appeals (though I understand that he does not do so). Therefore, any norms of propriety (to say nothing about the apparently inapplicable code of Ethics) on Article III Judges apply equally to Justice Stevens, even though the book markets him as a retired Justice.

Second, I turn to the canonical Correspondences of the Justices. These letters from Chief Justice Jay, in response to a request for opinions by Secretary of State Jefferson, to President Washington, set the tone, and tradition, that the Justices serve a special role in our society of deciding cases or controversies, and do not opine on political questions or issue advisory opinions.

Recall what Chief Justice Jay wrote:

We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on the 18th of last month, [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.

For sure, the Judges of the United States Courts are uniquely qualified to opine on issues of constitutional law. I’m sure that they also have special insights on constitutional law. But, the separation of powers compels the judges to check this ambition, and counsels against the “propriety of our extra-judicially deciding” issues of constitutional law. They resolve the cases before them. That’s it. This is sage advice.

What is offering a constitutional amendment, if not saying that the current Constitution is deficient in some way. By saying the Constitution should be amended in X way, a Justice is clearly saying the Constitution does not say X now. This is an advisory opinion, outside the context of a “case” or “controversy.” This should be avoided for the reasons Jay stated, quite well.

Consider this example. What if the President asked Justices Stevens, O’Connor, and Souter (all active Article III judges) to chair a commission (like the Warren Commission) to propose six amendments to the Constitution. Does anyone think this would be a good idea? Would this be much different from the request Thomas Jefferson made of the Supreme Court two centuries ago? I see little difference if Justice Stevens does this at the request of the President, or on his own accord. In either event, an Article III judge is opining on the state of constitutional law, what the Constitution does not say, and what it should say.

I have not read the book, but I suspect that all six amendments would have the effect of making his dissents into majority opinions (this has been a common theme in his recent speeches). If this is the case, then Stevens cannot possibly believe these amendments are necessary. He firmly believes the Second Amendment, in the Constitution as written, is limited to militia service. The law only says otherwise, Stevens thinks, because of one vote on the Supreme Court. Same for Citizens United. He firmly believes that the First Amendment does not protect corporations. Only one vote, not an amendment, stands in the way of fixing that (Alito for O’Connor). He said as much during a recent vent.

During the ABA Q & A period, Justice Stevens was asked if he thought it was necessary to have a constitutional amendment to overrule the 2010 Citizens United case. He replied: “Well, either a constitutional amendment or one more vote.”

Law Professors often discuss Justice Brennan’s private conversations with his clerks about the “Rule of Five” to prompt a discussion on legal realism. But Brennan kept these remarks inside the Court. It’s another thing when a sitting Justice makes such a boldface statement that the Constitution is only what Five Justices say it is. I’m sure many may agree with Justice Stevens, but this is a very precarious topic to convey to the public, in such a flippant manner. It shocks the stability of the Institution itself. And to come from a distinguished Justice, who is now selling a book on this point is very troubling.

If John Paul Stevens wants to hit the lecture tour, and reduce the Court to an institution where five votes gets anything done, while offering constitutional amendments, he is welcome to. But he should not do so while sitting as an Article III judge.

In nearly every state, the ethical rules prohibit the ownership of law firms, and the sharing of profits, with non-lawyers. The District of Columbia has a modified version of Rule 5.4 that permits such arrangements. Though, it is somewhat unclear what happens when such a firm attempts to do business in other states.

ABA Journal reports on a WaPo story, that a new Law Firm, Tandem Legal Group, has opened in the District, with both lawyer and non-lawyer ownership.

The firm’s services are not entirely unique, but its ownership structure is. McDevitt is not a lawyer — from 2002 to 2012, he was chief executive of Owings Mills-based weight loss company Medifast — and the District is the only jurisdiction that allows law firms to share profits with non-lawyers. In all other states, McDevitt would have to be salaried.

I’ve been surprised that legal analytics firms haven’t taken advantage of D.C.’s alternate rule structure to get around Rule 5.4.

I’ve previously commented on the sense of many in Washington that the Heritage Foundation, since the arrival of Jim DeMint, and changed from primarily a policy think tank to a partisan supporter of political goals. There is a very big difference.

The Times has a feature on this shift from policy to politics:

From its inception in 1973, the Heritage Foundation has provided the blueprint for theRepublican Party’s ideas in Washington. In doing so, it has proved to be the most durable organization of its kind.

But under Mr. DeMint, a South Carolinian who gave up his Senate seat last year to take the helm, Heritage has shifted. Long known as an incubator for policy ideas and the embodiment of the party establishment, it has become more of a political organization feeding off the rising populism of the Tea Party movement.

“Politics follows the culture,” Mr. DeMint said in an interview. “The conservative movement has been derelict in not putting together an organized movement across this country.”

In recent months, some of the group’s most prominent scholars have left. Research that seemed to undermine Heritage’s political goals has been squelched, former Heritage officials say. And more and more, the work of policy analysts is tailored for social media.

With the collapse of the wall between Heritage Foundation and Heritage Action, there has been an exodus of top scholars, and an unfortunate brain drain. Specifically, Heritage Action staffers would accompany policy experts to Capitol Hill:

Efforts by Heritage Action have included pressuring members of Congress to vote against nearly every piece of legislation intended to attract both moderate and conservative Republicans, scoring their votes and often crusading against noncompliant members. Heritage Action staff members began to accompany policy experts to Capitol Hill.

“We need to educate the people who are making the sausage and those who are being force-fed it: the American people,” said Edwin J. Feulner, 72, a founder of the Heritage Foundation, whom Mr. DeMint replaced.

Under Mr. DeMint, the research arm of Heritage has been all but consumed by Heritage Action, which, some former officials and members of Congress say, has weakened the Heritage Foundation’s influence on Capitol Hill, alienated all but the right fringe of the Republican Party and marginalized the serious research that had been a Heritage Foundation hallmark.

“DeMint has not only politicized Heritage, he’s also trivialized it,” said Mickey Edwards, a founding trustee of the Heritage Foundation and a Republican former congressman.

As a result, Heritage was kicked out of the weekly Republican Study Committee.

Perhaps no event has been more indicative of the foundation’s new relations with Congress than the decision by House Republicans last summer to kick Heritage Foundation analysts out of the weekly meeting of their Republican Study Committee.

Heritage officials had been the only outsiders allowed in the meeting. But as Heritage Action became more aggressive, study committee members demanded to know why the people criticizing them in their districts were listening in on their strategizing in Washington.

This evolution at Heritage stresses the significance of the Cato Institute, which resisted their own revolution.

So much for any Second Amendment cases. It seems the Court has done to the Second Amendment what it has done to Habeas in Gitmo. Abdicate to the lower courts. Not a single grant since McDonald.

In a new article, titled “Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory,” Marc DeGirolami and Kevin Walsh take aim at Judges Posner and Wilkinson, who eschew applying any constitutional theory, even though this approach to constitutional law is a theory itself! Here is the abstract:

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?

This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.

I addressed this point in a review of Wilkinson’s book I wrote a few years ago. Judicial restraint is a theory.

The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.

A belief in judicial restraint must come from somewhere. It is not in the text of the Constitution. It must be from somewhere in the cosmos.

More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.

And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”

Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.

In a debate between Randy Barnett and Wilkinson at the last Federalist Society convention, the weakness of Wilkinson’s position became evident. Both his discussion, and book, were very much under-developed.