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The Kavanaugh Hearings Were a Missed Opportunity—For Both Sides

In Humanities, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, Politics, The Supreme Court on September 12, 2018 at 6:45 am

This article originally appeared here in The Intercollegiate Review.

By now you’ve heard about the combative spectacle that was last week’s Senate Judiciary Committee hearing for President Trump’s nominee to the U.S. Supreme Court, Judge Brett Kavanaugh. This momentous event was characterized not by political acumen, wit, cunning, or prudence, but by partisan obstruction, lawlessness, tantrums, hysteria, ignorance, frenzy, and anger.

Protestors screamed vulgarities and trite slogans, proving they were not interested in Kavanaugh’s responses or in substantive intellectual debate. Seventy of them were arrested on Tuesday alone. If anything, their recurring interruptions and crude histrionics gave Kavanaugh time to pause and think about his responses rather than tire out and let down his guard.

Online left-wing rabble-rousers peddled an absurd conspiracy theory about Zina Bash, a former clerk for Kavanaugh—only shortly before right-wing conspiracy theorist Alex Jones was banned from Twitter. Senator Cory Booker, a Democrat from New Jersey, publicly released documents that were allegedly confidential, claiming full knowledge of the possible repercussions of his act—namely, expulsion from the Senate. “Bring it,” Booker taunted Senator John Cornyn, who warned about the consequences of the supposed confidentiality breach. With unintended levity, Booker announced his “I am Spartacus” moment. Only the documents weren’t confidential after all; they’d already been approved for public release. Thus, Booker’s Spartacus Moment was merely a political stunt of faux bravery.

Why this hostility? Why these shenanigans?

A Deep Philosophical Clash

For starters, the midterm election cycle is upon us and the Mueller investigation appears to be nearing an end. Politicians like Booker are grandstanding for political gain as they consider running for president. Kavanaugh has been tapped to replace Justice Anthony Kennedy, moreover, who was the court’s so-called swing vote, whereas Justice Gorsuch filled Justice Scalia’s seat. Gorsuch’s appointment did not tip the balance of the court the way Kavanaugh’s might. Democrats also remain angry that Republicans did not act on President Obama’s nomination of Merrick Garland.

But something more is going on. We’re witnessing a philosophical clash regarding the proper role of the judiciary.

Kavanaugh identifies as an originalist and a textualist. Originalism comes in different permutations, having evolved since the days when it sought principally to recover the original intent of an author or authors. Its most prominent adherents today see it as an interpretive approach to the original public meaning of a text. It maintains that the words of the law should be construed according to their ordinary meaning as understood by a reasonable person at the time they were enacted.

Textualism, similarly, interprets words without resort to extratextual factors such as authorial intent or legislative history, focusing instead on the ordinary meaning of words as written. For the purposes of this piece, I use the term originalism without drawing distinctions between it and its close cousin textualism.

Getting Kavanaugh’s Originalism Wrong

Originalism so described seems uncontroversial on its face, but you wouldn’t get that impression from activists who have opposed Kavanaugh’s nomination. “Originalism conflicts sharply with American reality and American ideals,” writes Alan Brownstein, a retired law professor. He labels originalism “unamerican,” saying it accounts for the views of “only the people who were here in the 1780’s and 90’s or when specific constitutional amendments were adopted,” not for the views of the “vast new diversity of the American people today.”

This, I think, is wrong. Originalism properly understood is depolarizing, isolating judges from the political process rather than injecting them into it. The Constitution contemplates internal modifications, chiefly through the amendment process, which is, by design, difficult to facilitate. If originalism limits changes in law to those processes contemplated in the Constitution, as Brownstein alleges, then Brownstein has inadvertently labeled the Constitution “unamerican.” How can this founding document, which sets forth the basic framework of government for the United States, be “unamerican”?

Brownstein seems to imply that the amendment process, being slow and onerous, should not be the sole avenue for reform—that the courts ought to be a driver of progress when legislative solutions stall. The implication here is that the Constitution ought to be a “living” document that can be updated or improved through judicial correction and adaptation in cases. Judges should, accordingly, exercise quasi-legislative powers, promulgating binding rules and opinions to achieve justice or equality or to align with evolving standards of decency.

5 Reasons Everyone Wins with Originalism

Here’s why Brownstein is mistaken and why now more than ever a commitment to originalism would benefit both the left and the right.

First, originalism does not guarantee a particular political result. As Scalia, one of the original originalists, remarked, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” Scalia sometimes reasoned to conclusions that favored Democratic or liberal policies because the operative text so required.

Second, originalism fosters trust in democratic systems. Legislatures and the public need to know that newly enacted laws stand a chance to last as long as they comport with the Constitution. People lose confidence in their governing institutions if they believe the laws they passed can be easily tinkered with or discarded by unelected and hence unaccountable judges.

Third, although originalism may lead to harsh results in certain cases, it leaves it to the collective wisdom of the people, acting through their representatives, to alter the law to achieve fairness or justice. Concentrating revisionary lawmaking power in one judge or group of judges increases the probability that an uncommon or idiosyncratic conception of justice that does not represent the conception of the people will become binding over them.

Fourth, originalism makes the law clearer and more predictable, not subject to the unpredictable or arbitrary considerations of a judge or group of judges. When the law as written is applied, parties to a case and the general public can with reasonable sureness predict a range of possible outcomes. But if judges do not apply the law as written, the range of possible outcomes multiplies to the extent that the law itself becomes uncertain, and parties cannot rely on the law when they make everyday decisions. Vagueness in the law causes arbitrary exercises of governmental power. Clarity in the law restrains government actors from exercising powers in a manner that has not been formally approved by the legislature.

Finally, originalism ensures the independence of the judiciary. Kavanaugh has insisted that he is an independent judge. Democrats may dispute that claim, but they can’t dispute that originalism itself operates to secure judicial independence. Originalism is nonpartisan and does not consistently yield results that can be easily classified as conservative or liberal. Even jurists on the left have embraced originalism. Justice Kagan famously declared, “We are all originalists now.”

A week after politicos and activists celebrated the bipartisan spirit of Senator John McCain, the Kavanaugh hearings broke down into partisan pandemonium. Originalism should have been a unifying feature of the Kavanaugh hearings. It wasn’t. So here we are today, approaching the midterm elections in a country that’s as divided as ever. God help us.

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Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

What Is Federalism?

In Jurisprudence, Law, Philosophy, Politics on May 16, 2018 at 6:45 am

Federalism refers to the organization of several divided polities that share and compete for power under the jurisdiction of a central government that derives its authority from a binding contract or constitution to which the polities have submitted or otherwise consented either expressly or impliedly.

The goal and effect of federalism is to disperse, diffuse, and decentralize power among competing units of government, mediate conflicts that arise between diverse groups and interests within different polities, and integrate cultural and normative variety into the governing institutions that hold different polities together in political union.

What Is Polycentric Law?

In Humanities, Jurisprudence, Law on May 2, 2018 at 6:45 am

“‘Polycentric law’ refers to the overlapping and amalgamating of rules and jurisdictions, in contrast to the legislating of a monolithic legal code that denies cultural particularities. Polycentric law is not centrally planned.”[1]

In other words, there is no one uniform system that can be called polycentric, because polycentrism involves multiple centers of control competing with one another, sometimes merging, sometimes coinciding.

History has demonstrated that legal and normative orders tend to centralize. Polycentric law materializes when each of these centralized orders remains competitive, kinetic, viable, and characterized by bottom-up customs and traditions.

Pluralism inheres in polycentric orders in which the power to coerce or control is dispersed, neutralized, or offset through competition and private adjudication according to embedded cultural standards and practices.

 

[1] Allen Mendenhall, Literature and Liberty: Essays in Libertarian Literary Criticism (Lexington Books, 2014), p. 67.

How Much Legislative Power Do Judges Really Have?

In America, Arts & Letters, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Western Civilization, Western Philosophy on February 14, 2018 at 6:45 am

This article originally appeared here in The Intercollegiate Review.

During his confirmation hearing last year, Justice Neil Gorsuch told Senator Dick Durbin that Roe v. Wade was “the law of the land.” A recent Washington Post headline declared, in light of Obergefell v. Hodges, “Same-sex marriage is the law of the land.”

What does it mean that opinions of the United States Supreme Court are the law of the land? Is an opinion of the Supreme Court a law? If so, do judges make law? If judges make law, thereby exercising legislative powers, wouldn’t they be legislators, not judges?

If Supreme Court opinions are laws, how can they be overturned by later justices? Were the overruled decisions never actually law to begin with? Were they temporary laws? Were the American people simply bound for years by erroneous rules or judgments?

Ask these vexing questions of ten experts in constitutional law and you’ll hear ten different responses.

Why so complicated? Perhaps because the framework of American government is at stake. Centuries of political theory, moreover, cannot be condensed or expressed in concise opinions involving particular issues about fact-specific conflicts. Judges and justices are not positioned to delineate philosophical principles with nuance and sophistication. Yet they are tasked with administering the legal system and are guided by deeply held convictions or inchoate feelings about the nature and sources of law.

When we debate the role of judges vis-à-vis the legislative or executive branch, we’re invoking the separation-of-powers doctrine enshrined in the U.S. Constitution. That doctrine derives principally from the theories of Locke (1632–1704) and Montesquieu (1689–1755).

In his Second Treatise of Government, Locke claimed that the preservation of society was “the first and fundamental natural law.” Today we worry about the corruption and incompetence of members of Congress, but in Locke’s era, when the monarch exercised extraordinary powers, the legislature was a bulwark against tyranny. It represented the will of “the people.” The preservation of society thus required robust legislative authority.

“This legislative is not only the supreme power of the commonwealth,” Locke intoned, “but sacred and unalterable in the hands where the community have once placed it; nor can any edict of anybody else, in what form soever conceived or by what power soever backed, have the force and obligation of a law which has not its sanction from that legislative which the public has chosen and appointed.”

Why must the law emanate from the legislature? Because the legislature, in his view, embodied “the consent of the society over whom nobody can have a power to make laws.” Locke’s paradigm holds, accordingly, that the legislature speaks for the people, from whom legitimate government obtains its limited authority; legislation reflects a general consensus among the people about controlling norms, beliefs, and values. The judiciary is curiously absent from this paradigm.

Montesquieu articulated a tripartite model of governance, adding the judiciary to Locke’s calculus. He argued that a state of political liberty would not exist if any of the three branches of government—executive, legislative, or judicial—arrogated to itself powers belonging to another branch. The branches competed, effectively offsetting their respective powers through checks and balances.

Montesquieu and Locke were among the most cited thinkers during the American Founding. They were indispensable sources for the framers of the U.S. Constitution. The first three articles of the Constitution establish our three branches of government.

Concerns about the scope and function of judicial power have begun to divide legal scholars on the right. On one side are proponents of judicial restraint as practiced by Robert Bork, William Rehnquist, and Antonin Scalia; on the other side are advocates of judicial engagement, which calls for a more active judiciary that strictly enforces restrictions on government action.

The judicial-restraint camp contends that the judicial-engagement camp would have the judiciary infringe on legislative authority in violation of the separation-of-powers mandate. The judicial-engagement camp contends that judges deferring to political branches often abdicate their duties to enforce not only the constitutional text but also unenumerated rights allegedly inherent in that text.

The view that judges cannot make law is increasingly unpopular. “The dubious aspect of separation-of-powers thinking,” Richard Posner says, “is the idea that judges are not to make law (that being the legislator’s prerogative) but merely to apply it.” Posner submits that “judges make up much of the law that they are purporting to be merely applying,” adding that “while the judiciary is institutionally and procedurally distinct from the other branches of government, it shares lawmaking power with the legislative branch.”

If Posner is right, then Montesquieu’s trifurcated paradigm collapses. That, or our current system is not maximally amenable to liberty as conceived by Montesquieu.

Parties to a case generally recognize judges’ rulings as binding. Courts and institutions generally accept Supreme Court decisions as compulsory. Even individuals who defy judicial rulings or opinions understand the risk they’re taking, i.e., the probable consequences that will visit them. Judicial rulings and opinions would seem, then, to be law: they announce governing rules that most people respect as binding and enforceable by penalty. If rulings and opinions are law, then judges enjoy legislative functions.

Yet the natural law tradition holds that law is antecedent to government promulgation—that indissoluble principles exist independently of, and prior to, pronouncements of a sovereign or official. On this view, the positive law may contradict the natural law. Which, then, controls? Which is the law, the one you’ll follow when push comes to shove?

Your answer might just reveal how much legislative power you believe judges really have.

Review of Richard Posner’s “The Federal Judiciary”

In Arts & Letters, Book Reviews, Books, Jurisprudence, Law, Writing on December 27, 2017 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

“I’m not a typical federal judge,” Richard Posner says in his new book The Federal Judiciary, which seems designed to affirm that claim.

Released in August, this tome shouldn’t be confused with his self-published Reforming the Federal Judiciary, released in September. The latter has generated controversy because it includes documents internal to the Seventh Circuit Court of Appeals, including personal emails from Chief Judge Diane Wood and confidential bench memoranda. The former, the subject of this review, is no less blunt, though one suspects the editors at Harvard University Press ensured that it excluded improper content.

Publication of both books coincides with the sudden announcement of Posner’s retirement. This quirky and opinionated jurist is going out with a bang, not a whimper, after serving nearly 36 years on the bench. He could have taken senior status; instead he’s withdrawing completely, citing his court’s handling of pro se appellants as the prime reason.

The Federal Judiciary presents “an unvarnished inside look” at the federal court system, which, Posner insists, “is laboring under a number of handicaps,” “habituated to formality, resistant to change, backward-looking, even stodgy.”

Posner is a self-styled pragmatist who champions resolving cases practically and efficiently through common-sense empiricism without resorting to abstractions or canons of construction. He adores Justice Oliver Wendell Holmes Jr., whose jurisprudence resembled the pragmatism of C. S. Peirce, William James, and John Dewey. His methodology relies on analyzing the facts and legal issues in a case, and then predicting the reasonable outcome in light of experience and the probable consequences of his decision. Accordingly, he follows his instincts unless some statute or constitutional provision stands in the way. Most of the time, the operative rules remain malleable enough to bend toward his purposes.

This fluid approach to judging stands in contradistinction to that of Justice Antonin Scalia, for whom Posner has little affection. In fact, Posner establishes himself as Scalia’s opposite. Where Scalia was formalistic and traditional, Posner is flexible and innovative. Where Scalia was doctrinaire, Posner is pragmatic. Where Scalia was orthodox, Posner boasts, “I am willing to go […] deep into the realm of unorthodoxy.”

Posner’s criticisms of Scalia can seem irresponsibly personal, involving not only Scalia’s originalism and textualism (legitimate objects of concern) but also his religious views on Creationism (about which, Posner declares, Scalia was “wrong as usual”). He calls Scalia’s belief in the devil “[c]hildish nonsense” and denounces Scalia’s unhealthy lifestyle. In a low moment, he calls Scalia “careless” for dying next to a sleep apnea machine the ailing justice wasn’t using. This rebuke is irreverent, but is it constructive or extraneous? Does it advance Posner’s judicial methods while weakening the case for Scalia’s?

Aspiring to be “relentlessly critical and overflowing with suggestions for reform,” Posner attacks the “traditional legal culture” that, he says, “has to a significant degree outlived its usefulness.” Cataloging the targets of his iconoclastic ire would be exhausting. He jumps from subject to subject, castigating “judicial pretense” and treating with equal fervor such weighty topics as statutory interpretation and such trivial matters as the denotation of “chambers” versus “office.” He confers delightfully disrespectful labels (“slowpokes,” “curmudgeons”) on his colleagues but can also seem petty (complaints about food in the US Supreme Court cafeteria come to mind).

Most of his critiques have merit. His persistent assault on the sanctimony and pomposity of federal judicial culture is acutely entertaining, signaling to some of his more arrogant colleagues that they’re not as important or intelligent as they might think.

Posner likes to shock. What other judge would assert that the Constitution is “obsolete” or ask when we’ll “stop fussing over an eighteenth-century document” that institutes the basic framework of governance for the country? A bedrock principle underlying the separation-of-powers doctrine holds that the judicial branch interprets law while the legislative branch makes it. Posner, however, announces that federal judges legislate even though they’re unelected. Conservative commentators would offer this fact as condemnation, but Posner extols it as an indispensable prerogative.

Although he alleges that judges are political actors, he’s impatient with politicians. He ranks as the top weakness of the federal judiciary the fact that politicians nominate and confirm federal judges and justices. (The president nominates and the Senate confirms.) The basis of this objection is that politicians are mostly unqualified to evaluate legal résumés and experience.

A refrain Posner employs to advance his argument — “Moving on” — might serve as his motto for judges, who, in his mind, must break free from undue restraints of the past. “The eighteenth-century United States, the nineteenth-century United States, much of the twentieth-century United States,” he submits, “might as well be foreign countries so far as providing concrete guidance (as distinct from inspiration) to solving today’s legal problems is concerned.” This isn’t meant to be hyperbole.

His citations to Wikipedia and tweets — yes, tweets — enact the forward-looking attitude he celebrates: he’s not afraid of new media or of pushing boundaries. Consider the time he asked his law clerks to doff and don certain work clothing to test facts presented by litigants in a case before him.

His advice to colleagues on the bench: Let clerks refer to you by your first name; do away with bench memos and write your own opinions; stop breaking for three-month recesses; stagger hiring periods for law clerks; don’t employ career clerks; don’t procrastinate; don’t get bogged down in procedure at the expense of substance; be concise; read more imaginative literature; avoid Latinisms; abolish standards of review. If you’re an appellate judge, preside over district-court trials. And whatever you do, look to the foreseeable future, not backward, for direction.

Readers of his most recent book, Divergent Paths, will recognize in these admonitions Posner’s distinctive pet peeves. He believes that judges who don’t author their opinions are weak or unable to write well. If judges were required to write their opinions, he supposes, fewer unqualified lawyers would sit on the bench: inexpert writers, not wanting to expose their deficiencies, would not accept the nomination to be a federal judge.

Posner’s love of good writing is so pronounced that he praises Scalia, his chosen nemesis, for his “excellent writing style.” He sprinkles references to Dante, Tennyson, Keats, Fitzgerald, Nietzsche, T. S. Eliot, Orwell, and Edmund Wilson and supplies epigrams by Auden, Yeats, and Alexander Pope. Those who didn’t know it wouldn’t be surprised to learn that Posner majored in English at Yale.

Still one comes away with the impression that he has sacrificed precision for speed. He appears to have cobbled together several blog posts and other articles of only ephemeral significance to pad his polemic. He discusses judges’ “priors” on page 116 but doesn’t define that term (“a mixture of temperament, ideology, ambition, and experience”) until page 148. Liberal with block quotes, scattered in focus, he recycles by-now familiar arguments against Bluebook and legal jargon and other staples of the legal academy. Even those who agree with him on these points will balk at the redundancy.

The repetition isn’t only at the thematic level: it involves diction and syntax. He tells us on page 408, “Pope Pius XII made peace with evolution in 1950.” Then a page later, he states, “The Church had had a ‘problem’ with evolution until Pius XII had made his peace with it in 1950.” On page five, he writes, “almost all federal judicial opinions are drafted by law clerks […] in the first instance, and edited more or less heavily by the judge.” He then echoes himself on page 22: “[M]ost judges (and Justices) require their law clerks to write the initial draft opinion, which the judge then edits.” He describes this same process again on page 276. “I write my own opinions,” he declares only to repeat himself later: “I write and edit my own opinions.” These are mere samples of a striking trend in Posner’s book.

A former law professor, Posner concludes by assigning grades to the federal judiciary in eight categories: selection of judges (B), judicial independence (A-), rule of law (A), finality of judgments (B), court structure (B), management (C), understanding and training (C), and compensation (B+). Total? Around a B average. For all the fuss, that’s a decent score.

Posner’s characteristic arrogance is grandly exhibited. “I’m a pretty well-known judge,” he assures us. His preface includes a short bibliography for “readers interested in learning more about me.” He names “yours truly” (i.e., himself) in his list of notables in the field of law-and-economics, an indisputable detail that a more humble person would have omitted. Posner’s self-importance can be charming or off-putting, depending on your feelings toward him.

Yet he’s honest. And forthright. Not just the federal judiciary but the entire legal profession thrives off mendacity, which is not the same as a lie or embellishment. It’s a more extravagant, systemic mode of false narrative that lawyers and judges tell themselves about themselves to rationalize and enjoy what they do. Posner sees through this mendacity and derides it for what it is. His frank irritability is strangely charming, and charmingly strange. The federal judiciary has lost a maverick but gained a needed detractor.

Judge Andrew Napolitano’s 2017 Commencement Address at Faulkner University Thomas Goode Jones School of Law

In Academia, Arts & Letters, Christianity, History, Humanities, Jurisprudence, Justice, Law, Law School, liberal arts, Libertarianism, Philosophy on December 5, 2017 at 6:45 am

What Is Magna Carta?

In Arts & Letters, Britain, History, Humanities, Jurisprudence, Law, liberal arts, Western Civilization, Western Philosophy on November 29, 2017 at 6:45 am

Making Legal Education Great Again

In America, Civics, Conservatism, History, Humanities, Jurisprudence, Law, Law School, Legal Education & Pedagogy, liberal arts, Liberalism, Pedagogy, Philosophy, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on August 30, 2017 at 6:45 am

This piece originally appeared here and was published by the James G. Martin Center for Academic Renewal.

Legal education has become a surprisingly regular topic of news media for several years now. Most of this commentary has focused on enrollment and matriculation problems, bar passage rates, accreditation standards, student debt, and the job market for recent graduates. These are pressing issues that raise vexing questions for law school administrators, and they warrant the attention they’ve received.

Little attention, however, has been paid to curriculum, except as it pertains to those issues. And not just curriculum, but subject matter within the curriculum.

There are certain subjects—let’s call them “the permanent things”—that always have and will interest scholars of the law because of their profound influence on legal norms and institutions: history, philosophy, literature, and theology. Whether they belong in law schools or some other department, whether they prepare students to become practice-ready or not, these topics will remain relevant to subsequent generations of jurists and legal scholars. There will be a place for them somewhere within the world of legal learning and letters.

Law school faculty and research centers have expanded over recent decades to include studies of these humanistic fields. As long as these fields populate law school, there’s a felt need for rigorous liberal education in them.

Ordered liberty in the United States has historically rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and traditional liberties grounded in the conviction that all humans are created equal and endowed by their creator with certain inalienable rights. These values characterize the American experiment. Our society is built on them, and its continued vitality depends upon maintaining and promoting our commitment to them.

Yet these values are ridiculed and attacked in universities across the country. When they’re taught, they’re often treated as products of a morally inferior era and thus as unworthy of our continued respect. And because these values aren’t seriously or rigorously taught, students lack working knowledge about them and are therefore unprepared for the kind of civic engagement that young people desire and demand.

A decline in civic education has caused misunderstanding and underappreciation of our foundational norms, laws, and liberties. Religious liberty is mischaracterized as license to harm and on that basis is marginalized. Economic freedom is mischaracterized as oppression and is regulated away. Well-positioned reformers with good but misguided intentions seek to fundamentally transform the American experiment from the ground up. They work to limit foundational freedoms and increase regulatory power.

Without well-educated lawyers and civil servants equipped to resist these reformers, the transformation of America will result in the destruction of the freedoms enabled by our founding generation. We cannot allow this to happen. The Blackstone & Burke Center for Law & Liberty at Thomas Goode Jones School of Law, for which I serve as executive director, therefore seeks to educate the legal community in such areas as natural law, natural rights, religious liberty, economic freedom, freedom of speech, freedom of association and assembly, and other liberties that find expression not just in the American but in the larger Western jurisprudential tradition.

I define “legal community” broadly to include law students, law professors, public policy institutes, political theorists, judges, and businesses in addition to practicing lawyers. Because my center is housed in a law school, it’s well positioned to instruct future lawyers while bringing together faculty from different disciplines who are steeped in liberal education.

Numerous organizations promote these values in the political arena, but few attempt to reconnect foundational values with the law. The Blackstone & Burke Center aims to fill this gap by bringing together scholars and students committed to American constitutional government and the common law foundations of our cherished liberties. Our target audience will include law students, judges, and civics groups.

For law students, we offer the Sir Edward Coke Fellowship. We’ve accepted our inaugural class of fellows, who, beginning this fall, will study formative texts in Western jurisprudence in monthly seminars that supplement their core coursework. Next semester, we’ll read and discuss works by Aristotle, Grotius, Hayek, Alasdair MacIntyre, and Robert P. George. The center will be a key networking opportunity for fellows seeking careers at foundations, think tanks, universities, and public policy organizations.

Fellows will also help to organize a judicial college for state jurists. Thanks to the Acton Institute, Atlas Network, and the Association for the Study of Free Institutions, the Blackstone & Burke Center possesses the grant money needed to host its first judicial college in October. Professor Eric Claeys of Antonin Scalia Law School at George Mason University will direct this event, the readings for which include selections from not only cases (old and recent) but also Aquinas, Locke, Blackstone, and Thomas Jefferson. The readings for judges are extensive, and the seminar sessions are meant to be intensive to ensure that judges get as much out of the experience as possible.

The center will also provide basic civics education to local communities. For several years, the Intercollegiate Studies Institute issued reports on the poor state of civic literacy in the United States. The National Association of Scholars recently issued a detailed report on the inadequacies and politicization of the “New Civics.” The current issue of Academic Questions, moreover, describes the sorry state of civics knowledge in the United States and the tendentious methods and institutions that teach political activism rather than deep learning.

Against these alarming trends, my center organized and hosted a reception featuring a U.S. Library of Congress interactive Magna Carta exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks and now remains in the possession of the Alabama Supreme Court Law Library. The reception included prominent judges, business and university leaders, lawyers, and the general public.

For example, Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta during the reception, and young people conversed casually with judges about the legal system, federalism, and the challenges and opportunities facing the legal profession in the 21st century. This fall, the center is cosponsoring an event with the Foundation for Economic Education on the campus of Auburn University to explore the relationship between law and markets, and I hope to see as many high-school students as college students in attendance.

Legal education is strikingly different today than it was when Thomas Jefferson apprenticed under George Wythe, or when Abraham Lincoln read law before receiving from a county circuit court certification of his good moral character, then a prerequisite to practicing law.

Nevertheless, legal education looks much the same as it did in the late nineteenth century, when Christopher Columbus Langdell, dean of Harvard Law School, instituted a curriculum, pedagogy, and case method that came to characterize “the law school experience.” If there’s been a paradigm shift, it’s been toward more practical aspects of legal education such as clinical programming. Yet many lawyers remain ignorant of the history and philosophical conventions that shaped their profession over centuries.

The Blackstone & Burke Center for Law & Liberty is a modest corrective in that it doesn’t seek to remake legal education or demolish longstanding practices and procedures in one fell swoop. Rather, it does what it can with the resources and tools available to strive to renew an America where freedom, opportunity, and civil society flourish. In the long run, I think, these reasonable efforts will have powerful effects and far-reaching benefits, both within the legal academy and beyond.

On Judicial Concurring and Dissenting Opinions

In Humanities, Jurisprudence, Law on August 23, 2017 at 6:45 am

This post is adapted from a law review article that may be downloaded here (citations available in the original).  

A unanimous judicial opinion admits little doubt about its authority.  Yet a dissent, especially when it is joined by another justice, deprives a majority opinion of its full import, calling into question the soundness and quality of the reasoning that prevailed in the case.  Future judges may, after all, reclaim from obscurity the rationale of a dissent, thereby abrogating the majority opinion against which the dissent was situated.  Concurrences and dissents notify future readers of alternative grounds of argument.  Concurrences may complicate the interpretation of the leading or majority opinion, but the fact that they signal the need for closer scrutiny and inspection is, in my view, advantageous.

Each case in a common-law system represents a ratified principle or principles nested within a chain of other cases.  Patterns of precedent gain increasing authority the longer and more widely they are followed.  Dissents add to the population of principles within the total system of rules that govern society, but they chart a path away from the settled course if they attract adherents and gradually disturb consensus about what the operative rule should be.

A decision in a single case may seem inconsequential because it is plugged into a vast network of cases.  Yet each case is important in the aggregate because it contributes to the wide distribution of choices by purposeful actors (voters who elect legislators, legislators who enact statutes, lawyers who contextualize statutes and produce lines of argument, judges who interpret statutes and formalize lines of argument, and litigants who initiate cases that either adopt or challenge prevailing rules).  Each case thus contributes to the filtering processes by which sketchy correspondences develop between past and present holdings.  Principles become clearer as associative links between cases grow more noticeable and as like cases combine into a cumulative force that demands attention.  Each case is necessary as a practical test for some principle to win judicial recognition.  A judge considers the law of the case synchronically, as if the operative rule were fixed, because he or she is bound by statute or precedent or some other source of positive law at that moment.  But concurrences and dissents, when they challenge the operative rule, force future judges to consider the law diachronically, as if it were subject to change and perhaps derived from some other source of law (e.g., when a judge dissents even though a statute or constitutional provision leads seemingly inexorably to the conclusion reached by the majority).

There are millions of published cases from both federal and state courts across the United States; the relation between principles and rationale in each of these cases cannot possibly be based on factual resemblances alone.  Only slight factual affinities, for instance, may lead judges to label an activity “theft” or “murder” in one case but not in another.  Cases do not consist merely of facts that require naming and classification according to a fixed legal lexicon.  The facts of a case may square with a legal principle that can be named, but the precise application of the principle remains unknown until a judge articulates it in an opinion.  The judge differentiates between principles in light of facts that are specific to each case.  The principles represent, in this sense, theoretical concepts abstracted from facts in specific cases.  When several cases hitch up to announce similar principles derived from comparable facts, the principles accrue authority.  Textual patterns signal how judges will rule in like cases; they thus ensure the predictability of rules.

The heritability of principles through cases enables judges to construct genealogies for principles to reveal a common ancestry.  An opinion represents one operative resolution among a heterogeneous mass of decisions.  An opinion in isolation derives its clarity and meaning by linking its rationale to associated concepts in prior cases.  Only by linking itself to like antecedents can an opinion establish its authority as the apparent sum of a limited number of legal options.  Case precedent is thus a social and discursive institution, embedding principles within a system or network of citation and imitation.  Each opinion unites certain principles with facts until eventually several opinions merge to form a cumulative family of similar cases.  Each opinion thereby serves as a resource for future judges who need to find and assemble principles that will situate the facts of a case within a settled pattern of decision-making.

Dissents are corrective mechanisms that guide future judges and justices away from problematic precedents.  They also facilitate and instantiate the values of free expression, as well as competition among ideas, that the First Amendment enshrines.  Justice William Brennan suggested that dissents involve “the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side.”  He echoed Justice Holmes by invoking “the conviction that the best way to find the truth is to go looking for it in the marketplace of ideas,” and to this end he referred to opinions figuratively as “the product of a judicial town meeting.”  Melvin Urofsky argues that dissents facilitate a “constitutional dialogue,” a phrase that “includes not just debates justices on the high court have with one another in specific cases or over particular jurisprudential ideas but also discussions between and among jurists, members of Congress, the executive branch, administrative agencies, state and lower federal courts, the legal academy, and last, but certainly not least, the public.”

The constructiveness of concurrences and dissents is evident from those which later courts have vindicated.  Examples include Justice Brandeis’s concurrence in Whitney v. California (1927) and his dissent in Olmstead v. U.S. (1928),  Justice John Marshall Harlan’s dissents in the Civil Rights Cases (1883) and Plessy v. Ferguson (1896), Justice Wiley Rutledge’s dissent in In re Yamashita (1946), and Justice Hugo Black’s dissent in Betts v. Brady (1942).  Recently the Supreme Court of Alabama released Ex parte Christopher (2013), a case that overruled a quarter-century-old precedent established in Ex parte Bayliss (1989).  Chief Justice Roy Moore, who authored the majority opinion in Christopher, had urged the overruling of Bayliss in a special writing he authored in Ex parte Tabor (2002).  Reanimating his Tabor writing in Christopher, the Chief Justice and a majority of the Court demonstrated the mode in which non-binding dissents may express reasoning that courts later adopt, in effect turning dead-letter into living authority.

Counterintuitively, a dissent may itself represent the plurality opinion.  In Ex parte Harper (2015), for example, Chief Justice Moore authored an opinion that drew only one concurrence as to the rationale.  Three other justices concurred in the result of the opinion but rejected the opinion’s rationale.  One justice recused from the case.  Justice Lyn Stuart authored a dissent that two other justices joined.  Thus, the dissent, with a block of three justices, had more support as to the rationale than did Chief Justice Moore’s rationale with which only one justice agreed.  Technically, then, the dissent carried more precedential weight than the opinion that disposed of the case.

The ideal of freedom of speech and expression is an inadvertent byproduct of the practice of dissenting, the primary function of which is to ascertain the proper legal argument, rationale, rule, or standard of review for a particular case.  A competition among values and ideas emerges inductively from the free play of clashing judicial opinions.  A variety or diversity of ideas embedded in case precedent enables a constructive flexibility in the rules that govern human activity.  By multiplying the options available to future judges, dissents ensure that courts have wider latitude to reach the right result in complex cases.  Dissents preserve in the textual record arguments that may in the long run seem more plausible, seemly, and correct.  They make it possible for future jurists to say, “This other argument is better and should be dispositive in the case before me.”

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