The Volokh Conspiracy

CUNY Law Professor Jenny Rivera has been nominated for a position on the New York Court of Appeals. In a hearing earlier this week, some of the questioning focused on her article, An Equal Protection Standard for National Origin Subclassifications: The Context that Matters, 82 Wash. L. Rev 897 (2007), the abstract of which includes the following:

This Article argues that context that is specific to and conscious of the experience and legal position of national origin groups matters just as much as racial themes and context in race-based legislation. It analyzes equal protection challenges to Latino classifications and presents a new approach to equal protection doctrine and discourse in which Latino national origin subclassifications are contextualized and recognized as legally relevant and operative. The Article demonstrates that the context that matters in national origin classification cases depends on factors associated with country of origin subclassifications, as well as the homogeneous classification of all persons of Latin American and Latino Caribbean descent as Latino.

This Article’s proposed uniform standard of review for national origin subclassifications depends upon the legal, historical, cultural, and political context of subclasses. To justify a contextualized definitional and constitutional analysis, it draws on the history surrounding the definition of “Latinos” and “Hispanics” in the United States. Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as “Latinos” and as subclass members.

Rivera was asked in the hearing if and how the views advocated in her article reflected how she would interpret and apply the law if a similar case came along in her capacity as a judge. She responded that her work as a scholar was just the work of a scholar, while the work of a judge is entirely different. A scholar raises questions and thinks outside the box while a judge simply follows the law. The strong suggestion is that scholarly work would have no influence at all. Watch here starting at the 1:08:55 mark:

I have seen other professor-nominees respond in the same way to this sort of questioning, and I find it a little puzzling. One one hand, I understand the reason for a nominee’s sudden conversion to legal formalism. Formalism lets the nominee draw a sharp distinction between the work of a scholar and the work of a judge: Because the judge merely follows the law, the scholar’s writing becomes irrelevant. With that said, this sort of formalist account offers neither a satisfactory account of what judges actually do nor of what legal scholars should do. For judges, the statement that they will follow the law doesn’t say anything interesting; the heart of the issue is what influences they consider relevant to determining what “the law” is. And for scholars, I would hope that a scholar’s interpretation of how to interpret the Constitution is more than just a throw-away thought experiment that even the scholar would ignore entirely if nominated to the bench.

My sense is that the extent to which a scholar’s work provides insight into their likely decisions depends on the nominee. With some, it’s an excellent indicator; with others, not so much. With that said, just as a matter of performance at a hearing, I think there’s a more candid answer than pure formalism that most nominees can legitimately use. A nominee can answer that their scholarship was directed to the U.S. Supreme Court, not lower courts or state courts. Lower federal and state court judges are bound by the U.S. Supreme Court’s precedents interpreting the U.S. Constitution, while U.S. Supreme Court Justices are not. As a result, nominees to lower federal courts and state courts can legitimately say that they will ignore their own scholarship on federal law (at least in subjects with lots of precedents on the books) because that scholarship was directed to the very different audience of the U.S. Supreme Court — a court to which they have not been nominated. I think that’s a more honest answer, although I realize that it’s much easier for nominees to rely on formalism than to get into a discussion of vertical stare decisis.

I have criticized Missouri v. Holland for concluding — in one unreasoned sentence — that a treaty can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is a bold claim to make without citation. I’m afraid that it is incorrect on each point.

First, treatises. Just five years before Missouri v. Holland, a leading treatise on the treaty power was written by Henry St. George Tucker — law professor, dean, congressman, ABA president. Tucker considered the precise claim at issue here: “that when a treaty may need legislation to carry it into effect, has embraced a subject which Congress cannot legislate upon, because not granted the power under the Constitution, that the treaty power may come to its own assistance and grant such right to Congress, though the Constitution, the creator of both, has denied it.” The treatise emphatically rejected this proposition, and for just the right reason: “[s]uch interpretation would clothe Congress with powers beyond the limits of the Constitution, with no limitations except the uncontrolled greed or ambition of an unlimited power.” Henry St. George Tucker, Limitations on the Treaty-Making Power, s 113, at 129-30 (1915).

Second, congressional debates. The most important such debate about the treaty power was the one surrounding the Louisiana Purchase. The debate is too involved to recreate here, and a wide variety of positions were expressed, but suffice it to say that there was no consensus that a treaty could increase the legislative power of Congress. One of the most clear-eyed Senators powerfully expressed the contrary view, apparently concluding: (1) the treaty itself was constitutional because non-self-executing; (2) Congress’s power to execute the treaty must be found among the list of Congress’s powers; the power does not instantly and automatically arise from the treaty and/or the Necessary and Proper Clause; (3) if Congress lacks the present power to execute the treaty, it does not follow that the treaty is void; it follows, rather, that the treaty calls for a constitutional amendment. See Executing the Treaty Power at 1926-27.

Third, Supreme Court cases: In 1836, the Court said this: “The Government of the United States … is one of limited powers. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.” Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736 (1836) (emphasis added).

Fourth, for good measure, here is a caustic editorial on just this point in the New York Tribune (Dec 8, 1879): “it will be a new discovery in constitutional law,” the Tribune sneered, “that the President and Senate can, by making a treaty, enlarge the power of Congress to legislate affecting internal affairs.”

So, it was hardly “universally accepted,” before Missouri v. Holland, that a treaty could increase the legislative power of Congress; if anything, the conventional wisdom seemed to lean the other way. In any event, as of 1920, the issue certainly deserved far more than one unreasoned sentence in Missouri v. Holland.

Happily, the stare decisis force of an opinion turns, in part, on the quality of its reasoning — and it diminishes substantially if the opinion provides no reasoning whatsoever. This is why it is such good news that the Court is now poised to give this important question the analysis it deserves.

Last week’s post, What Should Conservative Lower Court Judges Do With Liberal Supreme Court Precedents?, drew some interesting comments. I wanted to respond to one common argument: Lower court judges take an oath to defend and are bound by the Constitution, not the Supreme Court’s erroneous version of the Constitution. As a result, the argument runs, they should put aside Supreme Court precedents and follow the true Constitution instead. Put another way, lower-court judges should interpret the Constitution as best they see it, not as best the Supreme Court sees it.

Let’s assume this argument is correct, and let’s see how it would play out in practice. In particular, let’s say you’re a new federal district court judge. You’ve just been confirmed by the Senate, and on your first day there are three cases on your docket: 1) a constitutional challenge to a state law flatly banning the possession of guns, exactly like the law struck down in McDonald; 2) a constitutional challenge to a federal law banning the possession of guns in school zones, exactly like the law struck down in Lopez; and 3) a constitutional challenge to a campaign finance law that is extremely similar to the one struck down in Citizens United.

How should you decide these cases as a new Federal District Court Judge? If you believe that lower court judges are bound by precedent, then your decisions are easy. You have to strike down the gun law under McDonald and Heller; you have to strike down the second law under Lopez; and you have to strike down the third law under Citizens United. Whether you happen to agree with these 5-4 Supreme Court decisions is irrelevant, as you are bound by them and have to apply them. All three laws must be struck down.

But now imagine that you think each judge has to interpret the Constitution independently: Each judge must follow what he or she personally believes is the true Constitution, not what the nine Justices of the Supreme Court have said. So you read all the relevant precedents — McDonald, Heller, Lopez, and Citizens United — to see which arguments you think are most persuasive. Upon reading them, you find yourself persuaded by the dissents in each of these cases. You don’t think the majority arguments are persuasive, for a range of reasons. You think each of the the 5-Justice majority opinions simply got it wrong, and the 4-Justice dissents got it right.

In that situation, you would have to uphold all three statutes: You would have to uphold the gun ban, despite McDonald and Heller; uphold the federal ban on gun possession in a school zone, despite Lopez; and uphold the campaign finance law, despite Citizens United. You would have to do this because you’re following the true Constitution — at least, the true Constitution as you see it, which is the best any one person can do — rather than following what you see as the mistakes of the past Supreme Court. And you’d have to do this in every case, as would every judge, state and federal. Every new case and every appeal would hinge on what the judges thought in that case, with no issue ever being settled: Whether the Second Amendment is an individual right and applies to the states, for example, would be up to every new judge in every new case.

I think that situation would be really bad, as no constitutional right could ever be stable. Indeed, no rights of any kind could be stable. Your rights would only be what the judge you happened to draw thought was the correct answer at the particular time you happened to ask him. Sounds like chaos to me.

“But wait,” some readers will object, “My argument is that judges should follow the true Constitution, and I think McDonald, Heller, Lopez, and Citizens United are all correct. Because they are correct, judges should follow them.” The problem with this argument is that people disagree on what cases are correctly decided. You think one way; others think another way; there is disagreement. The question is how to settle these disagreements when visions of the true Constitution differ. The idea of a Supreme Court is that we need to settle these issues for all practical purposes somehow, and getting a large-ish group of some of the smartest judges together and having them vote is a relatively good way to do that. It’s not perfect, of course. But given the profound disagreement on what the true Constitution means, it’s a ton better than letting every judge decide every case from scratch.