Futures and Options

Judge Sotomayor has adequate credentials to be a Supreme Court justice. What saddens me about her nomination – even more than the impending retrenchment of liberal, living constitutionalist philosophy, which was fully expected – is that it confirms that blatant identity politics are still alive and well. The only reason she was considered for the job (and the real reason she will be confirmed) is because she is a Hispanic woman. Obama said as much when he introduced her as his nominee. Having a Hispanic woman on the court is all well and good, but I cannot abide placing ethnic identity above pure legal ability when filling a position of this importance.  And there were two other potential nominees, Diane Wood and Elena Kagan, who possess legal minds that are arguably brilliant (even if they are a little too liberal for my taste).   It is a shame that such extraordinarily qualified legal thinkers would lose out to a competent but average judge because of ethnicity.

You know, I can understand wanting to have legislatures that are reasonably representative of the ethnic makeup of the populations they represent. Legislatures are supposed to be in touch with and reflect the views of the people they represent. But judges are not. Judges should, indeed must be blind to the race and gender and background and wealth of the litigants before them. And of course a judge’s own race, gender, background, and wealth, should have no bearing on her approach to a case, an apparently inarguable proposition that neither Obama nor Sotomayor seems to endorse.

Just in case the mortgage bailouts haven’t effectively taught the lesson that a person’s right to have luxuries is in no way connected to his or her ability to pay for those luxuries, Phizer has announced a program that will allow people who lose their jobs to continue receiving Viagra for no charge.

Monique Stuart says it best:

What a treat for the wives! Because there’s nothing more sexy than an unemployed husband who has been lounging on the couch all day.

Think that you actually own the property you have a title to?  Well, think again.  The National Parks Service has just announced that they will begin condemning land surrounding the Flight 93 crash site in order to meet their “need” for a 2,200 acre memorial site.  2,200 acres.  For a single memorial.  As a comparison, the National Mall covers less than 310 acres, and contains the following:

• The Washington Monument
• The National Museum of American History
• The National Museum of Natural History
• The National Museum of Art Sculpture Gallery
• The National Gallery of Art
• The United States Capitol Building
• The Ulysses S. Grant Memorial
• The National Botanic Garden
• The National Museum of the American Indian
• The National Air and Space Museum
• The Hirshhorn Museum and Sculpture Garden
• The Arts and Industries Building
• The Smithsonian Institution Building
• The Freer Gallery of Art
• The Arthur M. Sackler Gallery
• The National Museum of African Art
• The National World War II Memorial
• The Lincoln Memorial

Mount Rushmore, gigantic faces carved into the side of a mountain, covers less than 1,280 acres.  But the National Parks Service has determined that the Flight 93 memorial requires 2,200 acres or roughly the same total amount of land as the city in which I grew up; a city of nearly 5,000 people.  I understand the desire to have a memorial at the Flight 93 crash site.  I even think that it’s a good idea.  But 2,200 acres is clearly ridiculous.

Even ignoring the acreage excess, the fact that the National Parks Service is reneging on earlier promises not to use eminent domain is unconscionable.  This is land that people have had in their families for generations.  Land whose confiscation would require, in some cases, the current owner to relocate his business, at great expense.  All because the National Parks Service cannot be satisfied with “only” 1,700 acres (more acreage already than the National Mall and Mount Rushmore combined).

We can all agree that the passengers on Flight 93 were indeed heroes, but these passengers were acting to defend the individual freedom for which this country stands.  Using the government to forcibly confiscate individual property is no way to honor the sacrifice that they made.

Maine’s governor has signed a bill legalizing homosexual marriage.  Notably, the bill includes language that explicitly protects the rights of religious institutions to refuse to perform marriage ceremonies for homosexual couples:

3.  Affirmation of religious freedom.   This Part does not authorize any court or other state or local governmental body, entity, agency or commission to compel, prevent or interfere in any way with any religious institution’s religious doctrine, policy, teaching or solemnization of marriage within that particular religious faith’s tradition as guaranteed by the Maine Constitution, Article 1, Section 3 or the First Amendment of the United States Constitution. A person authorized to join persons in marriage and who fails or refuses to join persons in marriage is not subject to any fine or other penalty for such failure or refusal.

This is an excellent compromise as it grants homosexuals full access to the secular institution of marriage (with all applicable rights and responsibilities) while simultaneously protecting the freedom of religious groups to administer (or refuse to administer) the sacraments as they see fit.

People, this is how it should work.  No court-forced decisions.  Protection of religious freedom included with a change in secular policy.  If only the remainder of the states were this intelligent.

(In case anyone wants to see the text of the bill, it is available here.)

Cato has a very good opinion piece about Obama’s high-speed rail plan, something that has dropped off the radar screen for many in light of the recent (and wholly artificial) H1N1 flu hysteria.  Not content to leave the rail funding in only the “stimulus” bill (which has so much pork that it might as well be called sausage), there’s wasteful spending on “high-speed” rail in the 2010 budget as well.  The article does a fantastic job of noting the disadvantages of rail as opposed to the interstate highway system and sums things up quite beautifully:

Interstates paid for themselves out of gas taxes, and most Americans use them almost every day. Moderate or high-speed rail would require everyone to subsidize trains that would serve only a small elite. Which symbolizes the America that Obama wants to rebuild better?

Yesterday’s New York Times article on Obama as a law professor offers much to consider, once you get past the author’s obvious love affair with the president’s so-called pragmatism. There are three points in the article worth discussing: (1) judicial pragmatism; (2) judicial minimalism; (3) potential nominees to fill Souter’s seat.

First, pragmatism. It may be a beneficial trait in a politician, but pragmatism is the antithesis of a proper judicial attitude. Pragmatism connotes a willingness to approach every issue with an open mind and a commitment to finding the best outcome for every problem, regardless of preconceived ideology. Obama is the quintessential judicial pragmatist, the article claims; he cares not a whit for “high theory.” In this regard, Obama’s pragmatism in this regard is equated with reasonableness. He does not always strive for the liberal or conservative outcome; he merely wants results that are reasonable in any particular case. Now, to be sure, no judge should strive for a liberal or conservative agenda in all cases, and of course every judge must approach each case free of preconceived notions of how that case should be resolved. But it does not follow that job of a judge is to consider what the most reasonable policy outcome of a case is, and decide the case on those grounds. The role of a judge is to apply the law – constitution, statutes, regulations, and prior cases – to the particular set of facts before him. Ideally, judges would be like calculators with robes and lifetime tenure: plug in the facts, plug in the law, and they would spit out the correct answer. And if the law you feed in is garbage, the answer you get out should be garbage as well; a judge is not free to tweak the input or the output simply because he thinks it smells bad. In the end, Obama’s disregard of “high theory” is simply a lack of firm commitment to the mandates of our legal texts. And let’s be realistic: the article’s implicit endorsement of pragmatism over “abstraction” is an implicit dig at the Court’s current champion of abstract high theory, Antonin Scalia.  The popular narrative of Scalia’s jurisprudence often grants that he is a principled jurist  but holds that his commitment to principle (in Scalia’s case, the “conservative” principle of originalist interpretation) comes at the cost of ignoring the real-life consequences of the Court’s decisions, which all too often hurt the little guy.  Scalia is too principled, it seems.   But a brief glance at his actual record quickly explodes the notion that Scalia’s principles always lead him to the “conservative” outcome.  For example, his commitment to the text of the Constitution and statutes have led him to be an unlikely champion of the rights of criminal defendants and terrorist detainees in Guantanamo (in the earlier detainee cases).  He didn’t decide those cases the way he did because he is a pragmatist; he decided them based on a principled reading of legal texts.

Second, judicial minimalism.  This one is trickier.  The article suggests that Obama is skeptical of the courts imposing too much social change all at once; the courts shouldn’t get too far out in front of public opinion, or they risk losing their legitimacy in the eyes of the public.  Fair enough.  As a descriptive matter, I think Obama is correct here.  The Supreme Court always enjoys a much higher approval rating than the President and Congress, partly because most of the really big political decisions that affect people’s lives don’t come from the Court.  The Court tends to make fewer people mad than the other two branches (with some notable exceptions).  But let us examine the presuppositions of Obama’s supposedly minimalist views, and how they relate to his views on pragmatism.  First, Obama’s view (or at least the article’s take on his view) is that some amount of social change is indeed within the province of the Supreme Court. As an abstract matter, social change is not part of the Supreme Court’s job description.  We typically leave that to the state and national legislatures.  Judges, by contrast, are supposed to judge – to compare the case they have in front of them to the socio-legal standards already enshrined in our Constitution and laws. Even a “minimalist” approach to social change is too much, if the texts at issue do not mandate it.  Conversely, the governing texts may legitimately require the Court to get way out in front of public opinion (Exhibit A: Brown v. Board of Education), and so an overly minimalist attitude might prevent a judge from doing real justice.  Bottom line: judges should not be minimalists any more than they should eagerly search for ways to impose.  They should simply go where the language of our legal texts lead them.

Finally, a word on the three possible nominees mentioned in the article:  Cass Sunstein, Elena Kagan, and Diane Wood. Notwithstanding the previous two paragraphs, I think all three are extraordinarily intelligent and highly-qualified for a seat on the Court.  They are legal thinkers who take ideas (dare I say “abstraction”?) and texts seriously, and in the vast majority of cases would perform their duties admirably.  (Full disclosure: I argued in front of Judge Wood during a moot court competition and have seen her on the bench several times; she is tough, well-prepared, and doesn’t let lawyers get away with anything.)  Conservatives will not agree with them on everything, but we need to have realistic expectations of any Obama nominee.  The President is owed deference on his nominations, as long as they are qualified, as Sunstein, Wood, and Kagan undoubtedly are.

Recently, there was an instructive exchange over at the Volokh Conspiracy between Eric Posner and Jonathan Adler on the causes and implications of the observed negative correlation between a country’s wealth and its impact on the environment. To be precise, this is not a simple linear correlation; it’s actually more of an inverted-U shaped curve, but it’s clearly an empirical refutation of the I-PAT hypothesis (environmental impact = population x affluence x technology) that was in vogue in the 1970′s.  Posner and Adler (and Posner again) discuss the potential causes of this relationship (specifically, the role of government institutions) and whether the same pattern will arise in the global warming context.  Well worth reading.

Last week, the EPA issued a proposed finding that greenhouse gases endanger public health and welfare because they contribute to global warming. These findings will surely be challenged in court, but they will just as surely be upheld, given the considerable (and appropriate) deference that courts give to agencies for scientific determinations of this kind. The upshot is that the EPA will be moving forward to regulate carbon dioxide and a number of other greenhouse gases under the Clean Air Act. Indeed, the EPA hardly has a choice in this regard, after the Supreme Court ruled in Massachusetts v. EPA that the agency does indeed have the power to regulate greenhouse gases under the CAA. I think there were a lot of problems with that opinion, but it’s on the books, and so the question is what the next step is for greenhouse gas regulation.

Almost anything would be better than the EPA trying to shoehorn CO2 regulation into the existing framework of the Clean Air Act. The CAA was drafted to deal with more conventional air pollutants like nitrogen dioxide; it is simply not equipped to regulate the basic by-product of our entire, modern, industrialized economy. At the outset, the CAA requires EPA to set a National Ambient Air Quality Standard (NAAQS) for each pollutant–standards which state and local pollution control agencies would then have to meet for their area by whatever means they see fit. This system has worked reasonably well for some conventional pollutants, and it certainly has the virtue of giving local governments meaningful control over pollution policy. But setting a NAAQS for carbon dioxide would be entirely pointless, because the concentration of greenhouse gases (unlike many conventional pollutants) is not determined by local factors, so local governments would have absolutely no control over their concentration. Los Angeles could reduce its own carbon footprint to zero, and it wouldn’t make a lick of difference to its local greenhouse gas concentration as long as China and India keep building power plants.

And of course, EPA has the power to directly regulate both “stationary sources” and automobiles under the Clean Air Act. The threshold for regulation of a stationary source under the Act is currently 250 tons of pollutant per year, which for conventional pollutants usually applies to very large sources like power plants. But there are an incredible number of stationary sources, including things like apartment buildings, that emit more than 250 tons of CO2 per year. Is EPA really going to start regulating all of them?

And consider the enormous predicate decision that EPA would need to reach before embarking on such an adventure: what is our desired level of greenhouse gas emissions? That decision has undeniably enormous economic implications and is simply not one that can be reached with a narrow, objective analysis of scientific data. This is not like figuring out how much mercury is acceptable in drinking water. Capping greenhouse gas emissions will have an tremendous impact on the world’s economic activity for decades. If that is a decision that must be made, Congress is the body that has to do it. A nominally politically accountable government agency acting as the Soup Nazi of greenhouse gases is not a future that any of us should welcome, whether you accept the global warming science or not.

I join Zenmervolt in applauding the Ninth Circuit’s decision to incorporate the Second Amendment. I’m not a huge fan of the selective incorporation doctrine (it’s another one of those mushy multi-factor made-up balancing tests), but the reality is it’s here to stay, and any court applying the doctrine honestly would have to come to the same conclusion the Ninth Circuit did yesterday.

I write separately to note that although the plaintiffs challenging the county’s gun ban won on the incorporation issue, they actually lost the overall case. The Court found that the ban on possession on county lands fell within the “sensitive places” exception to the Second Amendment right highlighted by the Heller opinion. The Court didn’t go into much detail in explaining why all “county lands” are considered “sensitive places” for purposes of the Second Amendment; certainly there would be a more compelling justification for the ban in some particular venues than in others. This sort of question highlights the relative novelty of Second Amendment litigation. Unlike, say, the First or Fourth Amendments (but not the Third Amendment), which are backed up by reams of caselaw analyzing how those rights apply in particular circumstances, the precise scope of the Second Amendment right is yet to be delineated. Once the incorporation hurdle has been passed (and I have little doubt that most of the other Circuits, and eventually the Supreme Court, will follow the Ninth’s lead), the rubber will really meet the road, and Courts will get down to the gritty business of figuring out what is and isn’t a permissible limitation of the right to bear arms. Stay tuned.

And for a more expert analysis of the Ninth Circuit’s decision, and links to other relevant sources, see Eugene Volokh’s post here.

This is a Very Good Thing.

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.¹⁷ We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.¹⁸

Perhaps even more telling, however, is the footnote cited at the end of that landmark finding (bold is my own):

¹⁸The County and its amici point out that, however universal its earlier support, the right to keep and bear arms has now become controversial. See generally Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

This seems to be a significant blow to the concept of judicial activism, especially coming from the 9th Circuit which has a history of interpretive rulings.

This is a victory.  It isn’t the victory, but it’s a solid win.  Thanks to Cato for bringing this to my attention.