AALS Mid-Year Meeting: The Changing Roberts Court:
This is the first of a few posts summarizing some of the plenary panels from the AALS mid-year Conference on Constitutional Law, currently underway in Cleveland, Ohio.
The opening plenary panel focused on "The Changing Roberts Court." Moderated by Lori Ringhand (UGeorgia), the panel featured Eric Segall (Georgia State), Erwin Chemerinsky (Duke/UCIrvine), and Lee Epstein (Northwestern). Soon-to-be-Dean Chemerinsky led off noting that every GOP presidential candidate for the past 40 years has sought to shift the Supreme Court through the nomination of conservative jurists. Such efforts have had little effect, Chemerinsky observed, until now. With the confirmation of Chief Justice Roberts and Justice Alito, he suggested, there is now a fairly reliable conservative majority on the court as, on most issues, Justice Kennedy appears to be "anchored" to the conservative majority.
Chemerinsky's thesis, as he described it, is that the Roberts Court should really be called the "Reagan Court," because the unifying element of the Court's conservative leanings is not a commitment to any particular conservative judicial doctrine (e.g. originalism), but a commitment to the political and ideological positions espoused by conservative Republicans in the 1980s. Further, Chemerinsky argued, the Court is not particularly "minimalist" or restrained in its approach, particularly when Justice Kennedy joins the conservative bloc. According to Chemerinsky, the Court's opinion in cases like Parents Involved and Garcetti v. Ceballos are evidence of a conservative majority that is quite willing to push a conservative agenda quite aggressively, often with little regard for precedent. I think Chemerinsky overstates his case (see my take on last term here) and, as he readily acknowledged, the current term has not produced the same sort of results (at least not yet).
In calling the Court the "Reagan Court," Chemerinsky explained, he means that (so long as Kennedy is willing) this is a court majority that consistently sides with the government over individuals when individual liberties or civil rights are at stake. As example, Chemerinsky points to the school desegregation, abortion, and religion cases. Yet this is a difficult position to square with cases like Wisconsin Right to Life, in which the conservative justices sided with the ability of non-profit groups and independent voices to challenge incumbent politicians and government regulators.
Another thing that makes this the "Reagan Court," Chemerinsky explained is its pro-business orientation. This is "the most pro-business Supreme Court since 1937." Yet as we have discussed before on this blog, this charge misrepresents the nature of the Roberts' Court's business docket. For instance, Chemerinsky cites the Court's antitrust decisions (e.g. Leegin) -- a subject he admitted he "know[s] nothing about" -- for this proposition, yet this is a pro-consumer, anti-competitor decision. It's an anti-regulation decision, to be sure, but that does not make it a "pro-business" court.
Finally, Chemerinsky said this is the "Reagan Court" because it consistently "favors executive power over separation of powers." Certainly here Chemerinsky's claim is quite strong. The Reagan Justice Department advanced fairly aggressive notions of executive power (although not always as aggressive as those of the current administration) and the conservative majority is certainly sympathetic to such arguments, particularly in the national security context. Here, however, it is worth noting that Justice Kennedy has been less "anchored" to the four conservative justices in this area than in many others and in lower profile, administrative law cases (such as Mass v. EPA) the Court has been anything but deferential to the executive branch.
Eric Segall was next, and argued that the "Roberts Court" should be called the "Kennedy Court," as he is the "key swing vote," and the only thing standing in the way of overturning numerous precedents of the Warren and Burger Courts, particularly in the context of individual liberties and criminal procedure. As Segall noted (as have many before), Justice Kennedy is the swing vote in a high percentage of cases particularly those divided on ideological grounds. While this term is shaping up quite differently, last term Justice Kennedy was almost never in dissent. Further, in many key areas, Justice Kennedy has authored the majority opinion for the Court. In many ways, Segall notes, Justice Kennedy is far more influential and powerful on the current Court than was Justice O'Connor. Insofar as Justice Kennedy has appeared to be less influential in the current term, Segall suggested, this is because the Court has (thus far) decided fewer "divisive" cases (defining "divisive" as 5-4 decisions split on ideological lines).
Segall's view is that "there are two Justice Kennedy's serving on the Supreme Court." The first is a fairly traditional justice, a moderately conservative justice who is a "formalist" in that his opinions "pay lip service to the traditional approaches to constitutional interpretation." The other Justice Kennedy, Segall noted, is the "romantic" Justice Kennedy, who grounds his opinions in sweeping first principles and focuses on the policy implications of his decisions. This latter Justice Kennedy is the one who "infuriates Justice Scalia and other members of the right wing" with his flowery language, citations to foreign sources of law, and failure to ground decisions on text, original meaning, precedent or tradition. According to Segall, this Justice Kennedy is refreshingly "transparent," because he openly acknowledges that many decisions cannot be decided without recourse to philosophical principles or policy preferences. In cases such as Lawrence v. Texas or even U.S. Term Limits v. Thornton, he relies upon meta-principles and eschews "hiding behind indeterminate legal sources." Indeed, some of these decisions don't even read like Supreme Court opinions, but ruminations on political principle. In Segall's view, Justice Kennedy is more consistent than many presume, in that his preference for more traditional or romantic approaches to decisions is rather stable, but it also keeps him in the middle for many important cases. So, Segall concluded, "in order to understand the Court, we're going to have to understand the man."
Lee Epstein offered a slightly different view: "The Roberts Court So Far: Why Conservatives Should Continue to Yearn, and Liberals Should Continue to Fear." In her view, the Roberts Court is more of a continuation of the "Republican Court" that was ushered in by President Nixon's appointments beginning in 1969 than the beginning of a new conservative or Reaganite judicial era.
Unlike the other panelists, Epstein's approach was more quantitative, focusing more on the larger trends than on individual doctrinal developments or individual high-profile cases. From this perspective, Epstein argued, that the Court began to tilt in a "conservative" direction beginning in 1969, and has remained fairly conservative since. Based on the overall percentage of cases decided in a "liberal" or "conservative" way, the Court was reliably liberal during the Warren Court, and has been fairly reliable since. Similarly, she notes, there has been relatively little change in the ideology of the median justice on the Court over the past few decades.
While Justice Kennedy is slightly to the right of Justice O'Connor on some issues, there are other instances where he was to her left, and joined with the liberal justices to form majorities while she was still on the Court (see, e.g., Roper v. Simmons. Another interesting observation is that while Justice Alito is more "conservative" than Justice O'Connor, this effect has been offset by Justice Breyer's slight migration to the left in recent years, resulting in relatively little change in the Court's overall ideological balance. Moreover, Epstein cast doubt on claims that key cases from last term would have come out differently had O'Connor remained on the Court.
AALS Mid-Year Meeting: Executive Power:
This morning's plenary panel is on executive power. Moderated by conference chair Mark Tushnet, it features the line-up of Kathleen Clark (WashU), Joseph Margulies (Northwestern), Sai Prakash (USD), and Adrian Vermeule (Harvard). Tushnet opens with the observation that the law of executive power seems to "come in waves." There was "Nixon Law" (impeachment, exec privilege, war powers), then "Clinton Law" (impeachment, privilege, and immunity), and now "Bush Law" (war powers, secrecy).
Kathleen Clark addressed "Accountability Mechanisms and National Security Secrecy." In short, her claim is that assertions of national security secrecy undermine political accountability mechanisms within the separation of powers. From this perspective, secrecy not only serves to advance executive functions, but also to insulate the executive branch from oversight by other branches and the public at large.
Clark provided a useful typology of accountability mechanisms based upon how they were created and where they are situated, ranging from those that are wholly internal to the executive branch (such as the Office of Legal Counsel opinions, the Office of Professional Responsibility, etc.), Congressional accountability mechanisms (oversight hearings, legislative protection for whistleblowers etc.), judicial accountability mechanisms (Bivens actions, etc.), and those that are external to the government (media, elections, etc.). In each of these cases, Clark observed, assertions of secrecy can undermine, if not wholly disarm, the accountability mechanisms.
Clark's presentation highlighted an interesting tension between secrecy and accountability. Without question, secrecy in national security and other matters is sometimes essential (though downplayed by clark). There are some things governments must do under cover. Yet Clark is certainly correct when actions (and their justifications) are kept secret, even formal accountability mechanisms may cease to function. Striking the right balance is particularly difficult. To focus on an example Clark used as a case study -- NSA surveillance -- some degree of secrecy is necessary to ensure the effectiveness of certain types of surveillance activities. At the same time, the high degree of secrecy about this particular program made it particularly difficult for Congress (let alone the public) to ensure that Executive Branch was complying with relevant statutory and constitutional constraints. Even if one believes that the Bush Administration's surveillance initiatives were necessary for national security, allowing the executive branch to initiate and engage in such activities in virtually complete secrecy reduces the likelihood that such activities will be conducted in a responsible fashion and deactivates the political checks that ultimately constrain overbroad assertions of executive power.
Sai Prakash spoke on the theory of the unitary executive in the Bush Adminsitration.
Where many argue the Bush Administration has been too aggressive in asserting the theory of the unitary executive, Prakash's view is that the Administration has paid "too little" attention to the theory of the unitary executive. This theory, Prakash hastened to add, has "nothing to do" with many the Bush Administration's assertions of executive power. As he explained, the theory says little if anything about war powers, foreign affairs or the executive's ability to disregard congressional enactments. Rather, the theory of the unitary executive is almost exclusively concerned with "law execution." In other words, it is about the executive branch as a unified whole under the control of the President, and says little about the scope of the executive power or even the executive branch's ability to contravene Congressional command.
In practice, Prakash argued, much of what occurs within the executive branch occurs independent of meaningful Presidential oversight. In some instances we actually have
"multiple, plural executive counsels," rather than single chief executive because of the existence of independent agencies, such as the FCC and SEC, that are able to operate without executive oversight. As a consequence, the President does not "take care" that the laws within these agencies' control are executed. For those concerned about a "unitary executive," this is of greater concern than whether the executive has the authority to act unilaterally with regard to national security or foreign affairs. (Perhaps, as Clark suggested in comments, the Bush Administration has sought to follow a "unilateral executive" model, rather than a "unitary executive" model.)
Joseph Margulies discussed the Bush administration's detention policies and their relation to the architecture of executive power. Margulies argued that the Bush Administration's policies on detention are largely unchanged from 2001 and 2002, despite extensive criticism and a (near) consensus that its policies are wrong-headed if not also illegal. One aim of Margulies' talk was to explore why the policies are so resistant to change if they lack legitimacy or support.
Margulies suggested that criticism of the Bush Administration's detention policies is universal, but I think he overstates his case. There is no question that academic criticism of the Administration's detention policies is (almost) universal. A similar consensus appears to exist abroad (at least in public). Some aspects of the Administration's policies have also been challenged from within the executive branch and by the courts, including the Supreme Court. Yet on the political right there remains substantial support for the executive branch's unilateral authority to detain enemy combatants as unlawful combatants and military adversaries. Many individuals, within the administration and without, believe that such measures are necessary for the security of the nation, and must be pursued even in the face of substantial opposition.
Margulies explanation for the present situation is that there is a dominant cultural and political narrative that existing policies are "flawed" and should be criticized. This makes it necessary for political elites to disclaim existing policies. Yet there is relatively little public concern for detention policies. That is, the average voter is far more concerned about other issues, so the political consequences of maintaining existing policies are virtually nonexistent. So political elites can condemn existing policies, but need not do anything to change them. One implication of this, Margulies suggests, is that it can be particularly difficult to control or discipline unpopular exertions of executive power absent electoral change.
Adrian Vermeule sought to look forward to the next administration, and consider how a President McCain or Obama will approach executive power. Drawing on theoretical and empirical research in the political science literature, Vermeule noting the prevalence and importance of "cross-over policy-making" -- the tendency for left-wing presidents to supply right-wing policies and vice-versa. As explained by Vermeule, there is a tendency for Presidents to successfully advance policies that appear contrary to their ideological orientation. One reason such efforts are successful is because voters, lacking information, find executive claims to be more credible when they are contrary to the executive's stated ideological preference. So, for instance, the public is more suspicious of hawkish policies from a hawkish president than from a dovish president, and vice-versa. This is self-limiting, as a right-wing president who moved too far to the left will lose his reputation as a"right-wing" president, but is nonetheless significant.
What does this mean for the next Administration? Perhaps, Vermeule suggested, this means that a President Obama would "engage in some symbolic civil-libertarian policies" on high-profile issues, but could also maintain or expand some Bush Administration national security and counterterror policies more successfully than a President McCain. Just as "only Nixon could go to China," only a President Obama could escalate existing policies, and perhaps only a President McCain could withdraw from Iraq or negotiate with Iran. This asymmetry in political constraints means (in technical terms) that the mode and the mean of presidential policies are likely to diverge. In lay terms, while the majority of a President Obama's policies are likely to be liberal, his ability to advance very liberal policies is truncated; he has more room to move to the right than to the left. Consider the Bush Administration: While definitely advancing "right-wing" policies on most issues, there are key areas in which the Bush Administration has moved farther to the "left" than would have a Democratic President (e.g. No Child Left Behind, Medicare Drug Benefit, federal spending). Looking forward, this means that on a handful of issues, it is likely that Obama could advance quite right-wing policies. The difficulty, of course, is that it can be difficult to know where a given President is likely to advance policies contrary to his ideological orientation.
AALS Mid-Year Meeting: Regime Politics and the Roberts Court:
This morning's plenary considered "Regime Politics and the Roberts Court." Moderated by Stephen Griffin (Tulane), the panel featured Pamela Karlan (Stanford), Thomas Keck (Syracuse), and Neil Siegel (Duke). As Griffin explained, the aim of "regime politics" analyses in political science is to explain constitutional doctrine by reference to the governing partisan coalition of which the Court may be a part. In this regard, such analyses seek to situate the Court in the broader context of American politics, political regimes, and governing coalitions. While Justices may reflect the Presidents that nominated them, and the time at which they were nominated, they may also respond to broader political changes and social movements.
Thomas Keck noted that regime politics may produce certain predictions about how a given Court will act. For instance, if one views the Court as part of a governing partisan coalition, one might expect the Court to support the governing coalition's policies. According to Keck, over half of the Roberts Court's decisions the Court endorsed the position urged by the Office of the Solicitor General in a brief to the Court, and an even greater percentage of the Court's decisions could be characterized as "wins" for the policy positions that the Bush Administration favors, explicitly or otherwise. Here Keck included cases in which the Court reached results that he believes the Administration favored even if no SG brief was filed, or even if an SG brief was filed (perhaps reluctantly, due to institutional constraints or other considerations) on the other side.
Keck then considered ways in which the Court could actively assist a presidential administration by invalidating or limiting unfavorable policies. Such actions are important because there may be policies "left over" from prior administrations or adopted over the administration's opposition. Therefore Court intervention can assist the administration, particularly if the administration is seeking to advance a particularly controversial policy position or would like the Court's acquiescence in scaling back the interpretation of existing regulatory statutes.
Applying this analysis to the Roberts Court, Keck concludes that the story of the Roberts Court, thus far, is "the active deployment of judicial power" in support of the policy agenda of the Republican Party in a large proportion of its cases. Without seeing how Keck characterized the Roberts Court's various decisions it is difficult to evaluate his overall thesis. But I do quarrel with some of the examples he provided. Keck cited Rapanos v. United States, for instance, as a "win" for the Bush Administration because the Court adopted a narrow interpretation of a "liberal" regulatory statute, the Clean Water Act. In effect, Keck argued, the Court did the executive's dirty work by restricting the CWA's reach as, he explained, the Bush Administration would have wanted. The problem with this characterization, however, is the Bush Administration actively resisted the adoption of a narrowed interpretation of the CWA's reach and, despite a prior narrowing construction in SWANCC v. Corps of Engineers, had refused to adopt a narrowed reading administratively. To the contrary, the Administration continued to enforce the CWA fairly aggressively, and acted as if the SWANCC decision had imposed no real constraints on the government's regulatory authority. So, if Rapanos is a "win" for the governing coalition, it is an odd sort of win -- a victory for opponents of the broad federal regulatory authority, perhaps, but not much of a win for the Bush Administration. Furthermore, there are a large number of cases in which the Administration takes a given position because it is "the Administration," and any Administration would advance the same position, making it problematic to characterize some of these cases as "wins" for any given regime.
Neil Seigel opened by noting that it is possible to identify political regimes with "constitutional components." That is to say that political regimes are organized, in part, around a given conception of the role of the courts and constitutional law. Thus as regimes change, one consequence can be a change in judge-made constitutional law, as one regime's conception of the Constitution is supplanted by another.
As an illustration, Seigel pointed to Supreme Court doctrine on the use of racial considerations in education. Whereas it was once clear, and largely uncontested, that the Equal Protection Clause allowed local school boards to consider race in pupil assignments, the Roberts Court has now ruled otherwise in the Parents Involved. This change, Seigel suggested, constitutes a "180 degree" turn in the Court's Equal Protection jurisprudence, is best explained politically. It was the consequence of a political movement, rather than mere lawyering and legal advocacy.
While some changes in constitutional law doctrine in political terms, and many scholars analyze court behavior in this fashion, Seigel noted that the Court does not describe what it does in such terms. Rather, judges and justices characterize judicial decision-making as akin to umpiring an athletic contest. As then-Judge Roberts explained at his confirmation hearing, his job was to call balls and strikes, not impose his preferred rules on the game. Some scholars believe such rhetoric is necessary for the Court's legitimacy. That is, the public accepts the Court's authority because it views the Court as a largely apolitical actor. Seigel questioned this account, noting that public conceptions of the Court and its role has changed over time, and it is not clear that the public "can't handle the truth" about the Court as an active participant in American politics.
Pam Karlan opened noting that it is a little odd to be considering regime politics in the Roberts Court because we "are way too early in the process." She nonetheless noted that one can already discern a gap between what the Court (or at least the Chief Justice) says and what it does. While Chief Justice Roberts has expressed a willingness for the Court to grant more cases its docket remains small, and while Roberts has often stated a desire to have more unanimous cases, there have quite a few divisive 5-4 decisions (at least there were last term).
In considering "regime politics" Karlan noted that it is important to define the relevant "regime." Is it a given Presidential Administration? Or an ideological political movement of which the Administration may be a part or may owe some allegiance? After all, some presidential administrations are "movement" presidencies (Reagan, G.W. Bush), while others are not (G.H.W.Bush). How, then, should one evaluate the Court's role in regime politics?
In the balance of her remarks, Karlan considered how the Court chooses between facial and as-applied challenges and the consequences of such choices.
In Gonzales v. Carhart, for instance, the Court upheld the federal Partial-Birth Abortion Act against a facial challenge, despite the lack of a health exception. According to the Court, any women for whom the prohibition posed a health threat could challenge the statute "as-applied" to them. Yet, as Karlan noted (citing Justice Ginsburg's dissent) a statute either has a health exception or it does not, and can (and should) be evaluated on that basis.
Somewhat similarly, in Crawford, the Indiana Voter ID case, the Court's plurality rejected a facial challenge to the state statute, but held that future as-applied challenges could be considered. This is not much help to the potentially disenfranchised voters, Karlan noted, as it would be particularly difficult for any potentially disenfranchised voter to challenge the statute until after the relevant election. Not only are such challenges difficult to bring, in claose electoral contests they cannot be brought without an understanding of the partisan political consequences of such litigation.
Through these examples, Karlan sought to suggest that decisions that appear quite modest or minimal on the surface can actually be quite significant, and have far-reaching consequences. Forcing litigants to file as-applied challenges may effectively insulate problematic statutes from meaningful judicial review. Yet as Columbia's Michael Dorf noted during the Q&A, it is possible to bring anticipatory as-applied challenges that can address some of the concerns Karlan raised.
[As an aside, Karlan made the surprising claim that she could not recall of a recent instance in which a retiring justice has been replaced by justice to his or her left. The most obvious example here is Justice White, who was replaced by Justice Ginsburg. It is also relevant that given the role of precedent and inertia in judicial doctrine, even the replacement of a justice to the "right" of his or her predecessor may not produce a rightward shift in the Court's jurisprudence -- a point supported empirically by Lee Epstein's data presented on the first panel.]
AALS Mid-Year Meeting: Federalism and the Roberts Court:
On Wednesday morning I led a session on "Federalism and the Roberts Court," in which we considered the likely trajectory of the Court's federalism jurisprudence. Efforts to reinvigorate the judicial safeguards of federalism were a hallmark of the Rehnquist Court's jurisprudence. A slim majority of the Court sought to advance this cause in two areas: Enumerated Powers (commerce clause, Section 5 of the 14th Amendment) and State Sovereignty (sovereign immunity and commandeering). Further, these cases tended to split along traditional ideological lines.
These issues -- enumerated powers and state sovereignty -- have been largely absent from the jurisprudence of the Roberts Court thus far. While such traditional federalism concerns were quite evident in some prominent cases (e.g. Gonzales v. Oregon, Rapanos), such concerns merely served to narrow the Court's statutory interpretations, and the justices largely avoided any consideration of the underlying constitutional questions.
This far, the action has shifted to questions of preemption and the dormant commerce clause. The latter area, in particular, seems ripe for change as the Court's recent decisions in this area (e.g. United Haulers, Ky. Dept. of Revenue v. Davis) suggest the Court may be ready to simplify or even scale back its enforcement of commerce clause limits on state regulatory authority. Also interesting is that the Roberts Court's cases in these areas have not broken down along traditional ideological lines. Consider, for instance, the divisions in Watters v. Wachovia Bank, a preemption case in which Roberts and Alito split, and Kennedy's dissenting votes in the dormant commerce cases. In short, the early returns suggest that federalism in the Roberts Court could be quite different than federalism in the Rehnquist Court.
Will this pattern continue, or will the Court return to the federalism battlegrounds of the Rehnquist years. Given the small size of the Court's docket, it may not mean much that it has yet to hear a significant enumerated powers or state sovereignty case. Such cases could still be waiting in the wings and a more traditional ideological split in preemption or dormant commerce clause cases could yet emerge.
Federalism was also the theme of two papers presented this morning. One presented by Bradley Joondeph (Santa Clara), "Federalism, the Rehnquist Court, and the Modern Republican Party," suggested that the bottom-line consequence of the Rehnquist Court's approach to federalism has been more a limitation on the regulation of private economic activity than a meaningful enhancement of state autonomy. This occurred because while the five right-leaning justices on the Rehnquist Court were relatively united in cases constraining Congressional authority to constrain state autonomy, the justices divided in cases considering federal constraints on state authority, such as dormant commerce clause and preemption cases. As a consequence, he suggested, the Rehnquist Court's federalism jurisprudence appears to be more in line with the political agenda of the modern Republican Party than on a principled commitment to state autonomy. Whether this trend continues in the Roberts Court, Joondeph concludes in his paper, may depend upon the extent to which the Chief Justice and Justice Alito are more supportive of state autonomy in dormant commerce and preemption cases.
While Joondeph suggests a "regime politics" explanation for this pattern, he did not endorse claims that this tension in the Rehnquist Court's federalism jurisprudence does not necessarily demonstrate any real hypocrisy. After all, federalism is not necessarily about "state sovereignty" or "state autonomy," all the flowery language about state "dignity" and the like in various Justice O'Connor and Kennedy opinions notwithstanding. Rather, many conceive federalism as about the allocation of power between the state and federal governments and, in the preemption context, the consequences of constitutional exercises of federal power on residual state autonomy. Thus, if the judiciary should be active in policing the boundaries of federalism, it would make sense that justices who support limits on federal power might also support many limitations on state autonomy.
In a paper titled "The Populist Safeguards of Federalism," Robert Mikos (UCDavis) questioned academic claims that there is a popular preference or call for the "federalization" of various policies, and that there are many reasons why citizens might actually prefer state and local regulation of particular problems. As a consequence, Mikos argued, Congress may not be particularly prone to intrude upon state autonomy as some academics presume. Indeed, in his written paper, he concludes "Under most circumstances, the populist safeguards shield state power from federal encroachments, thereby tempering the need for judicial review."
I did not find Mikos' presentation to be particularly convincing as it does not seem to account for the demonstrable increase in the size and scope of the federal government. Even if the populist demand for federalization is less than is often presumed, and there is more widespread support for state and local authority than some expect (points I am willing to accept), massive federalization has occurred in many areas traditionally left to state and local governments, and often without any efficiency or interstate externality-control justification. Thus, unless one accepts that such expansion of the federal government is desirable, and does not constitute "encroachment" on state and local governments, it seems that his ultimate conclusion is simply unsupportable.
While Mikos opted to focus on the popular affinity for state and local control, popular preferences are often not determinative as to whether the federal government intervenes in a given area. Concentrated interests, both economic and ideological, often exert greater influence on policymaking and seek federalization to establish a uniform federal policy on a matter of concern. Political officials and elites can also benefit from federalization, both to enhance their own power or diminish political accountability.