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In David Lat’s charming and engaging new novel “Supreme Ambition,” (I strongly recommend it!), there is a vacancy on the Supreme Court. Several of the law clerks in the novel gossip about possible Republican nominations to fill the seat of the now-deceased Justice Scalia clone, “Justice Keegan.” All of these names are not-too-veiled references to actual Circuit Judges, who would be on any short-list in a future Republican administration.

From the 8th Circuit, Judge Steven M. Colloton:

“Well, among judges, Steve Collins of the Eighth Circuit is getting buzz,” I said. “People like that he’s from the midwest rather than the Acela corridor. Joan Biskupic and Tony Mauro think he has the edge.”

From the 6th Circuit, Judges Jeffrey Sutton and Raymond Kethledge, and from the 10th Circuit, Neal Gorsuch:

“He’s well regarded,” said Amit, “but young. The same goes for Jeff Stuart and Ray Kelton on the Sixth Circuit, and Neal Gosford on the Tenth Circuit. Brilliant former SCOTUS clerks who come from flyover country— coastal qualifications, heartland appeal. But they need more judicial experience. LaFount might want to save them for later— like when Hannah Greenberg’s seat opens up. At least that’s what Jan Crawford thinks, and she has very good sources in conservative circles.”

From the D.C. Circuit, Judges Janice Rogers Brown and Brett Kavanaugh,

“Her sources say Rashida Williams of the D.C. Circuit,” I said. “Currently on the most prestigious circuit court, previously on the California Supreme Court. Smart, African American, a woman …” “And unconfirmable,” Amit said. “I agree with Jeff Toobin: put a typewriter in front of her and she turns into a loose cannon. Hard-core libertarians support Williams because of all these speeches and articles of hers criticizing the New Deal, but there’s no way she gets past the Senate. If a D.C. Circuit judge gets it, Brent Kirkpatrick is most likely.”

From the 5th Circuit, Judge Edward Prado:

“How about that Latino judge in the Fifth Circuit?” asked James. “He’s on a lot of the shortlists.” “Ramon Guerrero,” Amit said . . . “And they have a lot of sway on judicial issues.” “The hard right might care if Guerrero were out, but he’s not,” Amit said. “His main problems are that he’s a little old and he has some random dissents and concurrences in his past— affirmative action, abortion— that could come back to haunt him.”

From the 9th Circuit, of course, the inestimable Judge Frank Polanksi, I mean Alex Kozinski (9th Circuit):

“What about Judge Polanski? Could he get it over our boss?” I asked. …. “He has some advantages,” Amit said. “He’s more brilliant than the judge. He has the Polanski Mafia working behind the scenes for him— they’re at the White House counsel’s office, and the Senate Judiciary Committee, and the Office of Legal Policy at the DOJ. But he has disadvantages too. Some people view him as less predictable than Stinson, less consistently conservative— occasionally he ‘libs out’ on some issue he gets a bee in his bonnet over. We know how unreliable he can be when it comes to en banc votes.” “Judge Polanski is conservative but principled,” I said. “He ‘libs out’ when he feels the law requires a liberal result.” “Presidents prefer predictable over principled in SCOTUS nominees,” said Amit. “And Polanski’s a white male, which doesn’t help.” “

As a partial spoiler, one of these fictional judges is appointed to the Supreme Court.

Update: David Lat notes that Judge Stinson does bear some similarities to Judge Sykes.

(One reader of Supreme Ambitions(affiliate link) asked me whether Judge Sykes inspired the character of Judge Stinson. Although there are some similarities — both are fabulous, highly regarded, conservative women judges, talked about as possible SCOTUS nominees — Judge Sykes is way nicer than Judge Stinson, a judicial diva of the first order.)

There are different ways to teach Constitutional Law. Some teach it by doctrine. First you cover all of the congressional powers, then you cover all the executive powers, then you move onto the 14th amendment, then you do the Bill of Rights, etc. Because I only have four hours to teach all of ConLaw, this is the only way to cover everything in a meaningful way.

An alternative, and in my mind better approach given more hours, is to teach constitutional law chronologically. (I once tried to rank the top 300 cases of all time by year, and did a lecture where I ran students through all of these cases in two hours). Start with the Marshall Court, work through the Taney Court leading up to the Civil War, handle the post-Civil War cases as the Court grapples with the 14th Amendment, go through the late 19th century as the industrial revolution classes with society, chart the rise of the Progressive era in the early 20th century as the state police power grew, discuss the cases leading up to, during, and after the New Deal, followed by the Warren Court’s focus against segregation, criminal procedure cases, as well as sexual autonomy, into the Burger Court’s ratcheting back of some of that, followed by the Federalism focus on the Rehnquist Court, leading into the Roberts Court. (Randy Barnett’s ConLaw textbook, among others, does this very well).

Moving chronologically allows you to trace certain arcs across the law–the Supreme Court’s cases are not rendered in isolation but as part of a story of our national history. I try to do this in my class, and test this by making one of my exam questions situated in the past, and asking the students how a Court at a given point in time, only with precedents that came before that year, would resolve the issue (for example, how would the New Deal Court handle Obamacare).

Tracing these arcs allows you to isolate and analyze an issue in very different contexts. A perfect example of this is the (to oversimplify) debate between activism and restraint. Generally speaking, people label a decision activist if they disagree with the ruling. But, when viewed across time, the dynamics are hard to pin down.

In a recent speech at the Heritage Foundation, Senator Rand Paul traced just such an arc. Much of the commentary about this speech has been based on a few sound bites about whether activism or restraint is a better judicial philosophy. But the importance of Paul’s speech wasn’t the label–“I’m a judicial activist”–but the perspective. This is something many legal scholars, let alone Senators, lack.

Paul’s speech explored the notions of judicial restraint and activism (or what I, and my friends at IJ would call “engagement”) through six cases: Plessy v. Ferguson, Lochner, Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade, and NFIB v. Sebelius. Paul explains that a common thread runs through each case:

If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise.

He traces this thinking back to the King of the Progressives, Holmes:

That comes from Oliver Wendell Holmes, the great Progressive when he dissents in the Lochner case. What does he say?

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority. So if you are for judicial restraint, I guess then what happens when a legislature does bad things?

Plessy, and decisions upholding Jim Crow also cited majority rule:

But the question has to come also if you don’t have a better majority. If you have a Jim Crow majority in the south, does the court have a role in overturning something where a person’s individual rights are at stake? I think they do. I think it’s an important debate because ultimately ideas are important. … . I think the federal government was right to overturn state governments that were saying separate but equal is fine. Plessey v. Ferguson is a mistake. Plessy v. Ferguson is judicial restraint. So when we get to Brown I’m an activist.

The FDR Court employed restraint:

We move on a little bit later and we get into the New Deal. Here it is not state but the federal governments. They are passing all kinds of laws, assuming new powers that weren’t essentially in the Constitution. So you once against have an activist court in the beginning until FDR got his way, you have an activist conservative court who overturns federal laws one after another. And until finally a majority of the FDR appointees who say “oh no judicial restraint is the way to go.”

Same for Roberts in NFIB:

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority . . . In that, basically Justice Roberts says it is not his role to replace the majority will. Some of you might say I’m still for judicial restraint. I don’t care about any of these cases. We just need a better majority. That is an argument.

But in cases where liberty prevailed, the Justices were activist.

We have a time line. We go back and start in 1905 with Lochner and go through the way through Obamacare. The question is, in each of the case who should conservatives be for is the question: restraint or activist. We go back to Lochner. In the Lochner case the question is whether state legislatures were becoming more progressive and they were restricting the right or the liberty of contract.

So what happened is you had an activist court in the Lochner case that rules 5-4 says states can’t interfere with the right to contract. So the question is whether you are for activism or restraint when it is with regard to state governments interfering with the liberty to contract.

Brown v. Board of Education, activism prevails.

Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.

Paul favorably cites Griswold, even though he respects states rights.

Then we go to the next one. What is the big bugaboo when we talk about activism versus restraint? It is Griswold [v. Connecticut]. And you- say why are we even having this discussion. Does any of this have anything to do with the politics or current events?

Does anyone remember George Stephanopoulos’s question in presidential debate last time. He asked them all about Griswold. A lot of people didn’t know what Griswold was about, probably. But it had to do with birth control. State government said you can’t sell birth control to women. So if you are a state’s rights person you say I guess hands off. If you believe in judicial restraint, you are like let the states do what they want. That is a state right. Or you might say well individuals have rights also and states can’t tread upon individual rights? And then you might say, well maybe I am for Griswold and I am for overturning the state says you can’t have birth control. And so there’s a question again—are you an activist or restraint.

(I should note that Paul was apparently reviewing Presidential debates. Take that for what it’s worth).

Paul also tackles Roe in something of a libertarian approach, short of saying it is a horribly wrong decision.

Some say Griswold led to Roe, I guess you’re for Roe also. But in Roe, you have a competition of rights, you have a competition of rights between a mother and a child. So it is a little different than just whether or not you are restricting someone’s liberty. Because I think there are two individuals involved. The other side would say there’s not. But I don’t think the Roe is as clear cut as far as restraint or activism.

However not all decisions should defer to the majority. Some courts should apply a presumption of liberty, rather than a presumption of constitutionality. For this Rand cites Randy:

If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise. Now there is a school of thought that thinks differently.

Randy Barnett writes about something of this. He talks about the presumption of liberty, that maybe we should start with the presumption of liberty.

I liken it to sort of saying well maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted.

[one person clapping ]

Yes, I’ve got one convert! Yes! My point is not to convert you from judicial restraint to judicial activism but to think about it. I think it is not as simple as we make it sound. We say we don’t want judges writing laws. I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty? Do I want them to presume liberty and put the burden on the government to prove constitutionality?

The presumption of liberty is not unrebuttable. But it puts a thumb on the scale of the individual, over that of the state.

Paul also effectively rebuts the caricature of libertarian theory–that we want no government, and states can do whatever they want. By citing my friend Timothy Sandefur’s excellent new book, Paul explains why John C. Calhoun did not fit in with the notion of courts acting to preserve liberty.

What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want? Is that the conservative position? I think it’s not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice. The 14th amendment gives the Supreme Court, it gives the federal government a role in saying the states can’t do certain things.

There is a book called the Conscience of the Constitution by Timothy Sandefur, which I think is a great book, because he talks about it if we were to say, well gosh if we just believe in states rights, federal government has no role in the states, well could you be basically in favor of what John Calhoun said. John Calhoun not only supported slavery, John Calhoun supported sort of a tyranny of a state government. He thought state government could do anything it wants. Is that the liberty position? Is that the conservative, limited government position that we believe so much in a small federal government that there is no role nationally to say to a state government they can’t say certain things.

Paul’s parting comments about the separation of powers ring very true. As Madison wrote in Federalist No. 51, Ambition must be made to check Ambition.

Another constitutional question we have is on the separation of powers and I think this is an equally important question. It is legislative question and possibly a judicial question as well. There is a Professor from Tufts who wrote recently and he said the separation — there is an equilibrium that is supposed to be there between the different powers, between the different branches, but we’re having a collapse of the separation of powers. We’re having a collapse of this equilibrium. Our Founding Fathers [James Madison in Federalist No. 51] talked about there being sort of an ambition that we would pit one ambition against another. An ambition for the legislature should be an ambition that is pitted against the ambition of the presidency. The hope was — and many times in our history this ambition was I think beyond party label.

However, Congress has failed to check the President, and has ceded far too much power to the Executive, especially when the President is of the same party as the majority in Congress.

Unfortunately I think now things are so partisan that if it is a Democrat president usurping authority all Democrats will support them. But if it is a Republican president usurping and taking on too much executive power, all Republicans will support him.

Instead of what our founding fathers intended was, that Congress would object to having its power taken away by the executive branch, and these ambitions would be pitted back and forth the ambitions, and those ambitions would push us forward towards more of an equilibrium.

Paul concludes that his goal is to prevent “too much power from gravitating to one person or body.”

And for me I think more important than belonging to one particular party or another is the ideas of the Constitution and how the whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or one person.

While I’m here in Washington, in the future as long as I’m here that will be my overriding goal is to try to limit power and to keep too much power from gravitating to one person or body. And I think this is above and beyond all partisan politics. And I will continue as long as I’m given that privilege. Thank you very much.

I couldn’t agree more. I hope he stays true to these words.

First place goes to Pete Williams of NBC News, for tweeting the news at 3:30.

The US Supreme Court has agreed to take up the issue of same-sex marriage.

— Pete Williams (@PeteWilliamsNBC) January 16, 2015

Second place, by a few seconds, at 3:31 goes to Kimberly Robinson of Bloomberg BNA.

#SCOTUS grants cert in same-sex marriage case — Kimberly Robinson (@KimberlyRobinsn) January 16, 2015

Third place, a moment later was Greg Stohr of Bloomberg.

Supreme Court agrees to rule on gay marriage. #SCOTUS

— Greg Stohr (@GregStohr) January 16, 2015

Initially I gave the victory to Kimberly, as Pete didn’t use the correct hashtag #SCOTUS, so his tweet got lost in my timeline. Kimberly gracious confessed that she wasn’t first. I think we all need to agree to use the #SCOTUS hashtag to break news.   Bloomberg was the first to correctly announce the outcome of NFIB v. Sebelius. If I recall, Pete Williams (wisely) hedged for a few moments while he was on the air, as did Jan Crawford. Update: Honorable mention goes to Chris Geidner of Buzzfeed, who tweeted at 3:31 with a story link.

BREAKING: Supreme Court Will Hear Cases Challenging Same-Sex Marriage Bans – http://t.co/F0gmjKWLtU#SCOTUS#LGBT

— Chris Geidner (@chrisgeidner) January 16, 2015

Update: Here is the second-by-second timeline for 3:31, with #SCOTUS (If you didn’t use that tag you are lost to history). (1) Kimberly Robinson, (2) Greg Stohr, (3) Sara Kopit, (4) Me retweeting Kimberly, (5) Michelle Olsen, (6) Brent Kendall, (7) Chris Geidner, (8) Freedom To Marry.

By dint of first docket number, this case will–for the time being at least–be called as Obergefell v. Hodges. Make your predictions at FantasySCOTUS for question #1 (granting licenses) and question #2 (recognition of out-of-state marriages). Now, who gets to argue it? With 90 minutes on the first question, and 60 minutes on the second, there is more than enough time to go around. And when do we get the SG asking to intervene.

 

Here is my unofficial transcript, largely based on the C-SPAN closed captions, of Senator Paul’s remarks at Heritage about judicial activism and restraint. I’ll offer my comments in another post. I should flag that Senator Paul mentioned the works of Timothy Sandefur and Randy Barnett in his remarks.

I’d like to make it a little more interactive. We’re going to poll the crowd to begin with. Media and cameramen may participate also. Who in the crowd thinks judicial restraint is a great philosophy versus judicial activism? Who in the crowd thinks legal philosophy would be judicial restraint?

[All hands go up]

This is going to be a tough sell. How many think judicial activism is the way to go and that is really what we should have as an activist court?

[No hands go up].

Nobody.

This is really going to be a tough sell. Do you know why justice Roberts did not strike down Obamacare? Judicial restraint. So I guess everybody here is for Obamacare—thinks the court should should stay the heck out and Obamacare is just fine because the majority wants it. And that’s what justice Roberts said. We should not get in the way of the majority.

Do you know where that comes from? That comes from Oliver Wendell Holmes, the great Progressive when he dissents in the Lochner case. What does he say?

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority. So if you are for judicial restraint, I guess then what happens when a legislature does bad things?

What happens when a legislature says, well, we’re going to pass Jim Crow through the 19th century, most of the 20th century. Should we have an activist court that comes in and overturns that?

I won’t bore you with slides but we have one side. Where is it going to be? I can’t see it. That’s not going to help me any.

[Powerpoint didn’t work]

We have a time line. We go back and start in 1905 with Lochner and go through the way through Obamacare. The question is, in each of the case who should conservatives be for is the question: restraint or activist. We go back to Lochner. In the Lochner case the question is whether state legislatures were becoming more progressive and they were restricting the right or the liberty of contract.

So what happened is you had an activist court in the Lochner case that rules 5-4 says states can’t interfere with the right to contract. So the question is whether you are for activism or restraint when it is with regard to state governments interfering with the liberty to contract.

We move on a little bit later and we get into the New Deal. Here it is not state but the federal governments. They are passing all kinds of laws, assuming new powers that weren’t essentially in the Constitution. So you once against have an activist court in the beginning until FDR got his way, you have an activist conservative court who overturns federal laws one after another. And until finally a majority of the FDR appointees who say “oh no judicial restraint is the way to go.”

Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.

What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want? Is that the conservative position? I think it’s not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice. The 14th amendment gives the Supreme Court, it gives the federal government a role in saying the states can’t do certain things.

There is a book called the Conscience of the Constitution by Timothy Sandefur, which I think is a great book, because he talks about it if we were to say, well gosh if we just believe in states rights, federal government has no role in the states, well could you be basically in favor of what John Calhoun said. John Calhoun not only supported slavery, John Calhoun supported sort of a tyranny of a state government. He thought state government could do anything it wants. Is that the liberty position? Is that the conservative, limited government position that we believe so much in a small federal government that there is no role nationally to say to a state government they can’t say certain things.

So when it comes to Brown, I’m not a judicial restraint guy either. I’m a judicial activist when it comes to Lochner. I’m a judicial activist when it comes to the New Deal. But I’m also a judicial activist when it comes to Brown. I think the federal government was right to overturn state governments that were saying separate but equal is fine. Plessey v. Ferguson is a mistake. Plessy v. Ferguson is judicial restraint. So when we get to Brown I’m an activist.

Then we go to the next one. What is the big bugaboo when we talk about activism versus restraint? It is Griswold [v. Connecticut]. And you- say why are we even having this discussion. Does any of this have anything to do with the politics or current events?

Does anyone remember George Stephanopoulos’s question in presidential debate last time. He asked them all about Griswold. A lot of people didn’t know what Griswold was about, probably. But it had to do with birth control. State government said you can’t sell birth control to women. So if you are a state’s rights person you say I guess hands off. If you believe in judicial restraint, you are like let the states do what they want. That is a state right. Or you might say well individuals have rights also and states can’t tread upon individual rights? And then you might say, well maybe I am for Griswold and I am for overturning the state says you can’t have birth control. And so there’s a question again—are you an activist or restraint.

Some say Griswold led to Roe, I guess you’re for Roe also. But in Roe, you have a competition of rights, you have a competition of rights between a mother and a child. So it is a little different than just whether or not you are restricting someone’s liberty. Because I think there are two individuals involved. The other side would say there’s not. But I don’t think the Roe is as clear cut as far as restraint or activism.

Why is this pertinent?

Because we move all the way up to Obamacare. When we get to Obamacare, whether he believes it or not I don’t know. But Justice Roberts laid down the gauntlet and said judicial restraint is why the majority can do whatever they want. Not only, he basically said if there are two equal arguments for whether it’s constitutional or unconstitutional, whether it’s a tax or a penalty, we just have to accept that the presumption is of constitutionality.

This kind of gets back to this idea of restraint. If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise. Now there is a school of thought that thinks differently.

Randy Barnett writes about something of this. He talks about the presumption of liberty, that maybe we should start with the presumption of liberty.

I liken it to sort of saying well maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted.

[one person clapping ]

Yes, I’ve got one convert! Yes! My point is not to convert you from judicial restraint to judicial activism but to think about it. I think it is not as simple as we make it sound. We say we don’t want judges writing laws. I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty? Do I want them to presume liberty and put the burden on the government to prove constitutionality?

I think this is important and becomes so with regard to Obamacare. In that, basically Justice Roberts says it is not his role to replace the majority will. Some of you might say I’m still for judicial restraint. I don’t care about any of these cases. We just need a better majority. That is an argument.

But the question has to come also if you don’t have a better majority. If you have a Jim Crow majority in the south, does the court have a role in overturning something where a person’s individual rights are at stake? I think they do. I think it’s an important debate because ultimately ideas are important.

I think it was Victor Hugo who said ideas are really more important than a strong army. ideas are the presupposition behind that precede all of this and empower all of us. I think whatever kind of government we want, what kind of role the judiciary has, it is important to decide and examine ourselves whether we are for the restraint or activism with regard to the court.

Another constitutional question we have is on the separation of powers and I think this is an equally important question. It is legislative question and possibly a judicial question as well. There is a Professor from Tufts who wrote recently and he said the separation — there is an equilibrium that is supposed to be there between the different powers, between the different branches, but we’re having a collapse of the separation of powers. We’re having a collapse of this equilibrium. Our Founding Fathers [James Madison in Federalist No. 51] talked about there being sort of an ambition that we would pit one ambition against another. An ambition for the legislature should be an ambition that is pitted against the ambition of the presidency. The hope was — and many times in our history this ambition was I think beyond party label.

Unfortunately I think now things are so partisan that if it is a Democrat president usurping authority all Democrats will support them. But if it is a Republican president usurping and taking on too much executive power, all Republicans will support him.

Instead of what our founding fathers intended was, that Congress would object to having its power taken away by the executive branch, and these ambitions would be pitted back and forth the ambitions, and those ambitions would push us forward towards more of an equilibrium.

It isn’t just on immigration the president has usurped and recreated and brought on the executive branch power that is not there. It is also in Obamacare, amending the rules. We are going to have another ruling in the Supreme Court coming up.

But it is also on the power of war. The power to declare war was absolutely and without question given to the legislature. We’ve been at war now for five months and no vote in congress. So before Christmas I decided I would declare. And I decided I would declare war on a water bill.

And people are like why is he trying to declare war on a water bill? I say well it is my only avenue for having any power around here. I’m not chairman of the committee. I don’t get to decide the agenda. They have been working on this for six years. And as Jim [DeMint] will attest to, they will get pretty annoyed if you amend something they are trying to do it.

So I amended it with the declaration of the war against ISIS. I think they are a threat to our embassy Baghdad and the consulate in Erbil. And they are a threat to Americans, by killing Americans frankly. And there should be a debate. The president shouldn’t do this alone. So these debates have to go on.

And for me I think more important than belonging to one particular party or another is the ideas of the Constitution and how the whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or one person.

While I’m here in Washington, in the future as long as I’m here that will be my overriding goal is to try to limit power and to keep too much power from gravitating to one person or body. And I think this is above and beyond all partisan politics. And I will continue as long as I’m given that privilege. Thank you very much.

[ applause ]

And I would ask people to raise hands if I converted you from restraint to activism but I’m afraid to.