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Alberto Gonzales, who has kept quite busy since re-entering legal academia as a Professor, and now Dean at the Belmont University College of Law, authored an interesting article in the William & Mary Bill of Rights Journal, titled “In Search of Justice: An Examination of the Appointments of John G. Roberts and Samuel A. Alito to the U.S. Supreme Court and Their Impact on American Jurisprudence.” Here is the abstract.

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges Roberts and Alito to the Supreme Court. This Article explains how Judges Roberts and Alito were evaluated, and our assessment of how they would perform on the Court. The Article then examines whether the Bush Administration correctly predicted how these two men would decide cases before the Court by reviewing some of their most significant opinions to date.

We begin with an explanation of the process used in developing our recommendation to the President followed by a thorough examination of the factors we weighed (such as political considerations and confirmation challenges). The Article includes a thorough, though certainly not exhaustive, review of the circuit court opinions of each man. This early body of work is then compared to their most recent work on the Supreme Court in certain key areas of the law. There is a remarkable, though not unexpected, consistency between Justices Roberts’s and Alito’s jurisprudence on the circuit courts and on the Supreme Court. Based on this comparison, the Article concludes that the Bush Administration successfully anticipated that Chief Justice Roberts and Justice Alito would decide cases using a consistent set of principles including judicial restraint, respect for precedent, and statutory interpretation based on plain language.

I’ll put the rest of this lengthy post below the fold.

(more…)

The vote in Plumhoff v. Rickard was ostensibly 9-0 to reverse, but Justices Ginsburg and Breyer declined to join certain parts of Justice Alito’s majority opinion. There was no separate writing, and no explanation why those parts weren’t joined. From the syllabus:’

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, SOTOMAYOR, and KAGAN, JJ., joined, in which GINSBURG, J., joined as to the judgment and Parts I, II, and III– C, and in which BREYER, J., joined except as to Part III–B–2.

We can only guess what they didn’t agree with. Here is the key language from III-B-2 that neither joined:

We now consider respondent’s contention that, even if the use of deadly force was permissible, petitioners acted unreasonably in firing a total of 15 shots. We reject that argument. It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over.”

Justice Thomas did this in a case a few years ago, but I can’t recall which case.

Apart from the fascinating federal courts issue of tribal sovereign immunity, Michigan v. Bay Mills Indian Community offers a deep discussion of stare decisis for common law decisions, and what inferences should be drawn from legislative inaction. The dispute arises over the precedential value of a 1998 case, Kiowa Tribe v. Manufacturing Technologies, that extended tribal sovereign immunity to commercial activities that exist off the reservation. This allows a number of tribal-owned businesses, such as casinos, to operate outside the normal scope of state law. Since 1998, Congress has not taken any steps to remedy this decision. From this, Justice Kagan infers that Congress has acquiesced to Kiowa.

All that we said in Kiowa applies today, with yet one more thing: Congress has now reflected on Kiowa and made an initial (though of course not irrevocable) decision to retain that form of tribal immunity. Following Kiowa, Congress considered several bills to substantially modify tribal immunity in the commercial context. Two in partic- ular—drafted by the chair of the Senate Appropriations Subcommittee on the Interior—expressly referred to Kiowa and broadly abrogated tribal immunity for most torts and breaches of contract. See S. 2299, 105th Cong., 2d Sess. (1998); S. 2302, 105th Cong., 2d Sess. (1998). But instead of adopting those reversals of Kiowa, Congress chose to enact a far more modest alternative requiring tribes either to disclose or to waive their immunity in contracts needing the Secretary of the Interior’s approval. See Indian Tribal Economic Development and Contract Encouragement Act of 2000, §2, 114 Stat. 46 (codified at 25 U. S. C. §81(d)(2)); see also F. Cohen, Handbook of Federal Indian Law §7.05[1][b], p. 643 (2012). Since then, Congress has continued to exercise its plenary authority over tribal immunity, specifically preserving immunity in some contexts and abrogating it in others, but never adopting the change Michigan wants.11 So rather than confronting, as we did in Kiowa, a legislative vacuum as to the precise issue presented, we act today against the backdrop of a congressional choice: to retain tribal immun- ity (at least for now) in a case like this one.12

In dissent, Justice Thomas finds “unavailing” this argument about legislative inaction:

In support of its adherence to stare decisis, the majority asserts that “Congress has now reflected on Kiowa” and has decided to “retain” the decision. Ante, at 18; see also ante, at 19 (“[W]e act today against the backdrop of an apparent congressional choice: to keep tribal immunity . . . in a case like this one”). On its face, however, this is a curious assertion. To this day, Congress has never granted tribal sovereign immunity in any shape or form—much less immunity that extends as far as Kiowa went. What the majority really means, I gather, is that the Court must stay its hand because Congress has implicitly approved of Kiowa’s rule by not overturning it.

This argument from legislative inaction is unavailing. As a practical matter, it is “ ‘ impossible to assert with any degree of assurance that congressional failure to act rep- resents’ affirmative congressional approval of ” one of this Court’s decisions. Patterson v. McLean Credit Union, 491 U. S. 164, 175, n. 1 (1989) (quoting Johnson v. Transporta- tion Agency, Santa Clara Cty., 480 U. S. 616, 672 (1987) (SCALIA, J., dissenting)); see also Girouard v. United States, 328 U. S. 61, 69 (1946) (“It is at best treacherous to find in congressional silence alone the adoption of a con- trolling rule of law”); Helvering v. Hallock, 309 U. S. 106, 121 (1940) (“[W]e walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle”). There are many reasons Congress might not act on a decision like Kiowa, and most of them have noth- ing at all to do with Congress’ desire to preserve the deci- sion. See Johnson, 480 U. S., at 672 (SCALIA, J., dissent- ing) (listing various kinds of legislative inertia, including an “inability to agree upon how to alter the status quo” and “indifference to the status quo”).

Even assuming the general validity of arguments from legislative inaction, they are a poor fit in this common-law context. Such arguments are typically based on the prem- ise that the failure of later Congresses to reject a judicial decision interpreting a statute says something about what Congress understands the statute to mean. See, e.g., id., at 629, n. 7 (majority opinion). But it is not clear why Congress’ unenacted “opinion” has any relevance to de- termining the correctness of a decision about a doctrine created and shaped by this Court. Giving dispositive weight to congressional silence regarding a common-law decision of this Court effectively codifies that decision based only on Congress’ failure to address it. This ap- proach is at odds with our Constitution’s requirements for enacting law. Cf. Patterson, supra, at 175, n. 1 (“Congress may legislate . . . only through the passage of a bill which is approved by both Houses and signed by the President. Congressional inaction cannot amend a duly enacted statute” (citation omitted)). It is also the direct opposite of this Court’s usual approach in common-law cases, where we have made clear that, “in the absence of an applicable Act of Congress, federal courts must fashion the governing rules.”  

Allowing legislative inaction to guide common-law deci- sionmaking is not deference, but abdication.6 

6Of course, stare decisis still applies in the common-law context; I reject only the notion that arguments from legislative inaction have any place in the analysis.

I also reject the majority’s intimation that stare decisis applies as strongly to common-law decisions as to those involving statutory interpretation. The majority asserts that stare decisis should have “‘special force’” in this case because “‘Congress remains free to alter what we have done.’ ” Ante, at 16 (quoting Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989)). Although the Court has invoked this reasoning in the statutory context, I am not aware of a case in which we have relied upon it to preserve a common-law decision of this Court. Indeed, we have minimized that reasoning when interpreting the Sherman Act precisely because “the Court has treated the Sherman Act as a common-law statute.” Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 899 (2007) (emphasis added); see also State Oil Co. v. Khan, 522 U. S. 3, 20–21 (1997) (“[T]he general pre- sumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress ‘expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition’”). Surely no higher standard of stare decisis can apply when dealing with common law proper, which Congress certainly expects the Court to shape in the absence of legislative action. See, e.g., National Metropolitan Bank v. United States, 323 U. S. 454, 456 (1945).

In 1990, Chief Justice Burger called the individual rights model Second Amendment a “fraud.” We all know he said it. He said it over and over again. Academics, pundits, and others like to cite this fact over, and over, and over again, as evidence that the NRA rewrote constitutional history in the last 25 years. The latest example is Michael Waldman, president of the Brennan Center for Justice, “How the NRA rewrote the Second Amendment” in Politico. It begins:

“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.

Twenty-five years later, Burger’s view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in bars—even in churches.

(As an aside, in what alternate reality is Burger a “rock-ribbed conservative”?????)

This citation to Burger only proves the point that at the time he made this statement in 1990, virtually everyone was ignorant about the history of the Second Amendment. Did anyone ask Burger what he thought about the Privileges or Immunities Clause? Or the Third Amendment? It hadn’t been studied, or litigated, or even discussed in the mainstream.

That is, except for one article in the mainstream by Sandy Levinson, titled “The Embarrassing Second Amendment.” Sandy, no shill for the NRA, found that the Second Amendment does embody an individual right to keep and bear arms. Sandy has recently come to peace with the Second Amendment.

My own view is that District of Columbia v. Heller was probably (though not certainly) rightly decided, though I despise Justice Scalia’s opinion for the majority, which I regard as a thoroughly meretricious reading of the text and of the relevant historical materials. 

The article begrudgingly notes that Levinson,  as well as Tribe and Amar, came to the same conclusion.

Still, all this focus on historical research began to have an impact. And eventually these law professors, many toiling at the fringes of respectability, were joined by a few of academia’s leading lights. Sanford Levinson is a prominent liberal constitutional law professor at the University of Texas at Austin. In 1989, he published an article tweaking other progressives for ignoring “The Embarrassing Second Amendment.” “For too long,” he wrote, “most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do.” Levinson was soon joined by Akhil Reed Amar of Yale and Harvard’s Laurence Tribe. These prominent progressives had differing opinions on the amendment and its scope. But what mattered was their political provenance—they were liberals

I appreciate that there is a vigorous debate over the Second Amendment, but trotting out an uninformed, off-the-cuff 25-year old remark by one of the worst Chief Justices of the 20th century does not do much. This Burger is not well done.

As another aside, I’m shocked that there is a market for yet another book arguing for the collective understanding of the Second Amendment. I imagine Saul Cornell has done everything that can be done on this front.

Plus, I’m not sure what to make of this gratuitous shot at (my) Professor Joyce Malcolm.

Some of the assumptions were simply funny. In his book on judicial philosophy, Supreme Court Justice Antonin Scalia, for example, lauded Professor Joyce Lee Malcolm’s “excellent study” of English gun rights, noting sarcastically, “she is not a member of the Michigan Militia, but an Englishwoman.” But a historian fact-checked the justice: “Malcolm’s name may sound British, and Bentley College, where Malcolm teaches history, may sound like a college at Oxford, but in fact Malcolm was born and raised in Utica, New York, and Bentley is a business college in Massachusetts.”

What the hell is the relevance of this? Carl Bogus, the historian who wrote this,  disclaims in a footnote “In no way am I suggesting that Malcolm is less qualified to write on the subject because she is an American.”

Cass Sunstein reviews Richard Epstein’s magnum opus, The Classical Liberal Constitution, in The New Republic. The super-clickbait headline is “The Man Who Made Libertarians Wrong About the Constitution: How Richard Epstein’s highly influential, highly politicized scholarship cemented Tea Party dogma.” The general gist is that Richard is a Torts, Property, and Contracts scholar, no ConLaw scholar takes him seriously, and therefore we should marginalize him.

Most constitutional scholars continue to think that Epstein’s views are eccentric, but his views have had a large influence. … When Epstein comes to constitutional law, he is, in a sense, a stranger in a strange land. 

Epstein’s theories conflate public and private law:

All of Epstein’s particular discussions are instructive, and most of them are provocative. It is tempting to engage them in detail. But the risk of particularized engagement is that it would lose the forest for the trees. The larger point is that Epstein has a general framework, highly libertarian in character, which he deploys to tackle a large array of problems. He used a similar framework in his early writings on private law. The overlap is no coincidence: a certain conception of classical liberalism, a political theory emphasizing individual immunity from government, lies at the heart of both.

The book is one of political theory, not constitutional theory.

Epstein insists that “in no legal system at any time could the question of construction be reduced to a search for original public meaning of terms that are found in the constitutional text.” In a crucial passage, he acknowledges that “a bare text raises more questions than it answers, which makes it imperative to isolate the general theory that animates the text—usually the protection of personal autonomy, liberty, and property—and then construct the defenses that are consistent with that world view.” In his account, it “is only through the use of a general theory” that hard questions can be answered. He objects that a risk with modern originalism is that “it ignores the relationships between text, structure, and basic normative theory.” Recall, too, his suggestion that “the resolution of key interpretive disputes” will, and should, be influenced by “our basic conception of the proper scope of government action.”

But what is the source of the general theory and “our” basic conception? What does it even mean to say that a general theory “animates the text”? The most convenient answer would come from history. Epstein could have produced a very different kind of book, steeped in the political thought of the late eighteenth century. With such a book, he might have tried to demonstrate such “animation” by carefully linking a theory of the “protection of personal autonomy, liberty, and property” to the particular choices made by those who ratified the Constitution. That would be a highly interesting book, but it is not at all clear that it would be a convincing account of the views of the Founding generation.

In any case, Epstein did not write it. He is much closer to being an Anglo-American political theorist than an American constitutional historian.

Here, I think Sunstein hits closest to home.

Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one. Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires. Of course other people think differently. There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of “restoring” the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history. …

Epstein has written a passionate, learned, and committed book. But he is asking his fellow citizens, and the fallible human beings who populate the federal judiciary, to jettison many decades of constitutional law on the basis of a general theory that the Constitution does not explicitly encode and that the nation has long rejected. Epstein is right to say that in some contexts, a movement toward what he calls “classical liberalism” would be in the national interest. But a judicially engineered constitutional revolution is not what America needs now. 

I had similar thoughts about Richard’s book.

And, oh, by the way, the Tea Party’s entire view of constitutional law is because of Richard Epstein.

 Epstein is far too independent-minded to lead or follow any ideological movement, but if Tea Party constitutionalism has academic roots, or a canonical set of texts, they consist of Epstein’s writings. More than anyone else, he has elaborated the view that our Constitution is libertarian, in the sense that it sharply restricts the power of the national government, and against both the nation and the states, creates strong rights-based protections of private property and freedom of contract.

And Sunstein nudges the Paul family tree:

Everyone knows who Rand Paul’s father is, but in an intellectual sense it is Richard Epstein who is his daddy.

At some FedSoc convention, someone joked that Richard Epstein was the love child of Ayn Rand and Jerry Lewis.

There are also gratuitous shots at Judge Doug Ginsburg, Judge Janice Rogers Brown, and the Cato Supreme Court review.

That view hardly commands a consensus, but it is not limited to the law schools. In a speech delivered in several places and ultimately published in the Cato Supreme Court Review, a highly respected judge, Douglas Ginsburg of the United States Court of Appeals for the District of Columbia Circuit, wrote that federal judges were faithful to the Constitution until the 1930s, when “the wheels began to come off.” Among other things, Judge Ginsburg objected that the Court has “blinked away” central provisions of the Bill of Rights, including the Takings Clause, which, he lamented, has been read to provide “no protection against a regulation that deprives the nominal owner of most of the economic value of their property.”

Ginsburg’s colleague, Judge Janis Rogers Brown, has spoken in even stronger terms. She asserts that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality.”

In other words, exactly what you expect from a Sunstein essay.

Though, there is a great vignette of a Posner-Epstein lunch from the UChicago Faculty workshop.

When I joined the faculty of the University of Chicago Law School in 1981, there were two defining figures: Richard Posner and Richard Epstein. Posner was the world’s most important voice in the emerging field of “law and economics.” At the time he believed that courts should “maximize wealth.” Epstein, a defender of personal autonomy with strong libertarian inclinations, was Posner’s most vocal critic. At the University of Chicago Law School lunch table, where the faculty ate four times each week, the two had some fierce struggles. Tempers flared. No one who was there will forget those lunches, which sometimes seemed like a form of combat.

With a convenient shot at Scalia.

Epstein is not an originalist, certainly not in a strict or narrow sense. (Not incidentally, Scalia was also on the University of Chicago Law School faculty in the early 1980s, and he too had strong disagreements with Epstein.)