The confirmation hearings for the nomination of Brett Kavanaugh to the Supreme Court began this morning. In past confirmation hearings, I have found the committee members' opening statements to be largely worthless and often insufferable, so I won't watch it live. I am recording it. The arrest of the protesters might be entertaining to watch later.
There are news reports that the White House released portions of Judge Kavanaugh's opening statement, but the full text of what was actually released is not on the White House website nor on any news site I can find. Given the White House's frequent denunciations of media bias (often justified), one would think that the communications office would be eager to publish everything they release in full text so that the general public can read it unfiltered, but that does not seem to be the policy. The following excerpt has been widely quoted in the press:
"A
good judge must be an umpire--a neutral and impartial arbiter who favors
no litigant or policy. ... I don't decide cases based on personal or
policy preferences. I am not a pro-plaintiff or pro-defendant judge. I
am not a pro-prosecution or pro-defense judge. I am a pro-law judge."
In criminal law, the Supreme Court's most important decisions are those interpreting the crime and criminal procedure related provisions of the Constitution. Other decisions generally affect only federal cases, not state, and they can be overridden by Congress if wrong. The constitutional decisions affect every case, and when wrong they stay with us and do damage for a very long time.
In constitutional criminal law, a "pro-law" orientation will favor the defense on occasion. In the Court's worst decisions, though, the defense position can only be reached by fabricating non-existent rules. This has been particularly true in Eighth Amendment cases in recent years, although some of the "classic" Warren Court cases under the Fourth and Fifth fit this description as well.
The umpire analogy echoes Chief Justice Roberts' opening statement, and I expect similar criticism.
Some rules are indeed balls and strikes. The pitched ball enters the strike zone or it doesn't, and in close cases umpires must determine that fact as best they can. Whether a punishment is "unusual" in the sense that word is used in the Eighth Amendment simply requires looking at the historical and contemporary usage throughout the country. A punishment used in half the country is definitely not unusual in the Eighth Amendment sense. One abolished by statute in every state definitely is. How about one authorized and used occasionally in only two states? Close call.
Other rules are more like the "excessive celebration" rule of the NFL, prior to its recent cutback. How much celebration is "excessive"? It's a judgment call, though over time precedents build up to give us a better idea of what is allowed and what is not. The "unreasonable searches and seizures" rule of the Fourth Amendment is this kind of rule. That is why Professor LaFave's treatise takes up half a bookshelf.
This is why judgment matters. This is why fidelity to the original understanding of the Constitution, as important as it is, does not answer all questions. (I have never heard anyone on my side of the originalism debate claim that it does, though I have heard people on the other side attack the unmade claim in "straw man fallacy" arguments.) So of course a judge's attitudes and values do matter.
They matter less, though, if the judge is dedicated to the principle that only the people can change their Constitution. Justice Black stated the principle perfectly in his concurrence in McGautha v. California (1971). "Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power." (Whether Justice Black consistently observed that principle himself is a debate I won't get into here.)
For judges faithful to this principle, the range in which their attitudes and values affect the outcome is much more limited than it is for those who subscribe to the "living Constitution" view. Conservatives who are originalists are thus far less dangerous to the liberal agenda than conservatives or libertarians who would bring back early twentieth century judicial activism.
Is your last line suggesting, Kent, that a judge or justice who claims to be an "originalist" is not likely to be an "activist"?
Justice Scalia's work in Heller purports to be "originalist," and yet also is fairly described as "activist," no? Same might also be said about Justice Scalia's work in Blakely and Johnson.
I am not here seeking to make an argument for or against originalism, but rather just observing that at least one prominent "originalist" justice had plenty of notable opinions in the criminal justice arena that seems pretty "activist."
You appear to be using the term "judicial activist" differently than I do. By definition, it is the polar opposite of originalism.
A decision that restores the meaning of a constitutional provision to its originally understood meaning is not "activist." The term does not refer to making a big change in the law.
If Dickerson had gone the other way, for example, that would not have been judicial activism even though it would have been a huge change in the law. It would have been getting rid of a rule that, beyond question, was made up by the Supreme Court without any basis in the text or history of the Fifth Amendment.
In Heller and Blakely, Justice Scalia believed he was restoring the provisions in question to their original meaning. Johnson I would have to go back and look at again.
One additional point--adherence to originalism might be "activist" if the decision upsets well-settled legal interests, and there are no countervailing reasons. For example, to overturn Obergefell, which was an activist decision would be activist because it would destroy reliance interests and merely give the states back the right to prohibit SSM. Janua, of course, is another matter--all you have to do is look at Kagan's laughable dissent. (By the way, Abood could have been cut to ribbons from a thousand cuts.)
Roberts' decision in the Obamacare case was activist, as it perverted normal rules of statutory construction. The idea that statutory interpretation is a "wait and see" thing is about as ridiculous an idea that has ever come down the pike in Supreme Court history. Roberts should be remembered ignominiously.
I struggle, Kent, with the notion of "restor[ing] the meaning of a constitutional provision to its originally understood meaning" when dealing with modern innovations like LWOP or AK-47s or sentencing guidelines or cell phones or cars or drones. How can I know if and when a decision significantly expanding (or significantly retracting) the automobile exception under the Fourth Amendment or the application of vagueness doctrines (as in Johnson) is "restor[ing] the meaning of a constitutional provision to its originally understood meaning"? For that matter, especially in light of how federalist is using the term, how do I know if any decision is "activist"? Justice Stevens explained the modern Apprendi line of cases in Booker as "preserving an ancient guarantee under a new set of circumstances." Is this originalism at work or activism?
I am not eager to play semantics here, but I am eager to question the notion that originalism really provides a significant restraint on judges eager to import their own policy preferences into law. Especially given various disputes among even avowed originalists like Thomas and Scalia (e.g., Scalia though mandatory minimum were not subject to Sixth Amendment limits, Thomas had a much stronger claim they should be in Alleyne), I have a hard time accepting the notion that "Conservatives who are originalists are thus far less dangerous to the liberal agenda than" any other type of conservative judge. As I see it, an awful lot of conservative outcomes (as well as many liberal outcomes) can be justified using various different conceptions of "originally understood meaning" applied to modern realities. Of course, the same is true of other interpretive philosophies, ergo the persistent fighting over who gets on SCOTUS (and your eagerness for Justices "with a sufficient appreciation of the public-safety implications of court rulings").
It’s not that difficult. For example, citizens were allowed to have canons during the time of the FFs. Can you really make a case that any rifle would have been banned?
The fact that a principle has fuzzy edges where its application is debatable does not mean that it is not important and valuable. Jury trial remains very important even if there is disagreement whether it requires 12 jurors or unanimity or whether or how it applies to sentencing factors. At its core, it means that (absent a waiver) a defendant cannot be convicted of a crime and sentenced to prison by a judge without a jury, and that remains an important principle.
So it is with originalism. Fidelity to the Constitution as originally understood is nothing less than respect for the people's right of self-government. The fact that there are some areas where application of the principle is debatable does not diminish its importance. As a practical matter, there are areas where originalism does provide clear answers as long as one is genuinely and faithfully applying it and not engaging in sophistry.
For example, one academic (and only one, to my knowledge) tried to make an originalist argument for the Fourth Amendment exclusionary rule. The attempt was ludicrous, and I demolished it in my brief in Utah v. Strieff.
In the economic regulation area, I do not believe that the notion that the due process clause not only has a substantive component but also that this component constitutionalizes laissez-faire economics can be squared with the original understanding. Admittedly I haven't studied the "Rehabilitating Lochner" argument in any depth. It's not my field, and I don't have time. But I am very skeptical that it is possible.
People may attempt to put originalist lipstick on an activist pig, but it's still a pig.
What sort of conservative outcomes do you see that a genuine, committed originalist would force on an unwilling public by striking down statutes and declaring them unconstitutional? For state legislation, I don't see a large field for that. We have seen ordinances struck down that effectively prevented law-abiding people from owning guns for self-defense, but the more sensible limitations are not in doubt. See Heller, 554 U.S. at 626-627.
For federal legislation, it is possible there could be some rollback of the notion that the federal government can fully regulate anything which "affects" interstate commerce (which essentially everything does). The Obamacare case could have gone the other way. But the kind of massive deregulation the hard-core libertarians want is not going to be forced by the judiciary if we have genuine originalists on the high court.
So can a state constitutionally prevent a person with a misdemeanor drug conviction from buying a rifle? How about a misdemeanor DV conviction? How about a 17 year old? A person diagnosed with bipolar disorder?
Can a state constitutionally prevent me from buying armor-piercing bullets for a rifle? Grenades? Bombs/nuclear materials to make modern day canons?
Can it prevent me from mounting a rifle on a drone? From limiting public display of rifles near schools or government building? If you think orginalism provides easy answers, I am eager to hear them, Tarls.
Kent, I posted my questions to Tarls before seeing your discussion, but they seem to follow effectively. There are lots of what you might call "sensible limitations" on guns and ammunition embraced by states that would seem inconsistent with an "originalist" understanding of the Second Amendment that suggests (all?) citizens should be allowed to have canons. And, of course, it is unclear who should be considered a "citizen" worthy of having rights using originalism: is it just landowning men of a certain age and race --- see, e.g., Failures of Originalism: The Uncertain Meaning of 'Citizen of the United States', https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2044805.
Speaking of the challenges of originalism in modern times, what of incorporation. Is incorporation supported or rejected by true originalists (and on what theories)? Would a committed originalist be committed to incorporating the Grand Jury clause against the states? How about the Seventh Amendment? How about reversing Raich, which seems very suspect on originalist grounds. How about reversing Miranda and Terry, both of which involve court-made law as much as the exclusionary rule and both of which could stand some serious rethinking.
I am always intrigued by claims that serious originalism would make for a better approach to constitutional interpretation, but Justice Thomas seems to have very few friends when his originalism gets really serious (in part, I think, because nobody really knows what lies in real originalism's Pandora's Box).
My statement about "sensible limitations" is based on the passage of Heller I cited to support it:
I don't know if Tarls is correct about citizens being allowed to own cannons or not, but it doesn't matter. They certainly weren't in common use.
I do not believe the possession of canons, on the other hand, presents a Second Amendment question.