"Legislating from the Bench"

President Bush has said that he favors judges who will not "legislate from the bench" (hereinafter LFTB), and both Chief Justice Roberts and Harriet Miers have been praised as people who will refuse to LFTB. But is this a useful category? What does it mean? Consider the following possibilities:

1. Bipartisan restraint. Those who do not LFTB will vote to uphold the decisions of the elected branches unless those decisions are plainly and unquestionably unconstitutional. Such judges favor bipartisan restraint. For example, they will permit affirmative action programs; allow restrictions on abortion and same-sex relationships; and uphold regulations that greatly diminish the value of property (which were probably acceptable at the time of the founding, because the founders appeared to see "takings" as "physical invasions" of property, not as diminutions in the value of property). Bipartisan restraint has an honorable pedigree; Oliver Wendell Holmes generally favored it and Chicago's own Adrian Vermeule has a superb forthcoming book arguing on its behalf. But no current judge favors this approach, and it is most doubtful that President Bush means to endorse it. (A quiz question: In recent years, which justices have voted most often to strike down acts of Congress? Answer: Justices Scalia and Thomas, whom the President has singled out for special praise.)

2. Textualism. Maybe a judge will not LFTB if she follows the text of the Constitution. The problem is that almost all judges follow the text of the Constitution. (An exception: The first amendment says that "Congress" shall make no law abridging the freedom of speech; almost everyone agrees that the protection of speech applies even if the President or the courts are imposing the restriction. There are other exceptions, but they're rarely where the action is.) If a judge doesn't LFTB if she follows the Constitution's text, then almost no judge LFTB, and the category is unhelpful.

3. Originalism. A judge might refuse to LFTB if she follows the original understanding of the Constitution's ratifiers. That's one view, of course, but Chief Justice Roberts has disavowed originalism. Will he LFTB? In any case originalists would have to make quite major changes in existing understandings. They would abolish the general right of privacy, for example, and they would also have to permit the national government to discriminate on the basis of race and sex. (The equal protection clause applies only to the states.) If they are faithful originalists, dedicated to history, they would probably allow states to establish official religions. They would  also permit sex discrimination at the state level; some of them would strike down the Federal Communications Commission and key parts of the Clean Air Act and the Occupational Safety and Health Act. Maybe they're right, but is all this what it means not to LFTB? 

4. No new rights. Maybe a judge refuses to LFTB if she doesn't want to create new rights, not currently well-established. On this view, a judge who won't LFTB won't create (for example) a right to same-sex marriage. Maybe this is a modified version of bipartisan restraint, and I think that it might be close to what President Bush has in mind. But if this is the right understanding of LFTB, will judges who don't want to LFTB a) allow campaign finance restrictions, b) permit affirmative action programs, c) allow gun control restrictions, d) permit regulatory takings, and e) allow restrictions on commercial speech? In at least some of these cases -- maybe all -- a judge who intervenes will be establishing new rights, in the sense that she will be going beyond what constitutional law now recognizes. My hunch is that those who want judges not to LFTB don't want judges to follow all of (a), (b), (c), (d), and (e).

To know whether a judge is LFTB, or instead interpreting the Constitution, we need to identify the right theory of constitutional interpretation. Unfortunately, the document itself specifies no such theory; it doesn't, for example, say that judges should follow originalism. Of course judges should not LFTB, but to say that a judge will not LFTB tells us little about what she will do.

When a nominee is praised for refusing to LFTB, some kind of code, I think, is being used; the beauty of the code is that no one can be certain how exactly to translate it.

Comments

[Michael Martin]

I'm not sure I agree that "To know whether a judge is LFTB, or instead interpreting the Constitution, we need to identify the right theory of constitutional interpretation."

Maybe the praise for refusal to LFTB is an example of an incompletely theorized agreement. It leaves room for a variety of different theories, but demonstrates a general disapproval of some of them, or at least of some judicial activity that falls into the four categories you've given. Why does disapproval of LFTB have to be perfectly articulable in order to be a valid criterion for selecting a Supreme Court justice?

When President Bush disapproves of legislation from the bench, I think he has in mind the kind of judicial activity that results in large scale institutional reform. There are legitimate questions about whether judges have the democratic pedigree to engage in that type of activity. So it might be a disapproval of Brown II but not Brown I. Or of the state judges in California ignoring a state-wide referendum.

In general, I think that Prof. Sunstein should be pleased with Bush's disapproval of LFTB, since whatever theories are compatible with that disapproval, they should tend to be minimalist.

[Adam]

Professor Sunstein you again bring up the trope about Scalia and Thomas voting the most to strike down Acts of Congress without even a mention of how often any of the Court's members vote to strike down state laws. Why not give a complete accounting of such activism? Perhaps because it will reveal that the rest of the Court votes for such legislative nullification more? What persuasive reason is there for distinguishing between the Court striking down state laws and striking down Acts of Congress?

I don't expect answers to these questions, because it is more important, I'm sure, to bash justices you don't like than it is to talk seriously about the subject.

[Ben]

Adam,

Before bashing Professor's Sunstein's analysis, you might want to consider having some sort of factual basis to back up your objections. Sunstein referenced that the "conversvative" justices tend to overturn acts of Congress more often because there is data on such. If you can find some data saying the "liberals" are more likely to overturn when it's a state law, I'd love to see it.

[DaveO]

I am confused by your reference to Affirmative Action as a program a LFTB Court or Justice would not reverse on Constitutional grounds. It clearly violates the Equal Protection Clause, but the Court has decided it serves a compelling policy interest greater than the compelling policy interests actually enumerated in the Constitution itself. A Court that viewed the Constitution's written words as the supreme law of the land would have no choice but to reverse it.

[Travis]

I've more than once seen reference to where judges find themselves frustrated because Legislatures have passed intentionally vague laws, essentially necessitating that judges LFTB by creating case law to work out the details that legislators gave up on detailing (perhaps intentionally as part of political compromise). I've the impression that this problem is pervasive.

[Adam]

Ben:

I have a real job that prevents me from spending hours performing research on this subject. Furthermore, the data is out there in the form of the very same Supreme Court opinions Sunstein used for his "analysis" of the rates of striking down Acts of Congress.

I have a hypothesis, based on my experience reading Court opinions, that liberals vote to strike down state laws on Constitutional grounds a lot more than conservatives (See, e.g., Lawrence, Stenberg, Roe).

It's Sunstein's job to be an intellectually honest researcher. To date he has not been on this point.

[Michael Martin]

Adam,

Perhaps Sunstein chose to focus on federal laws because they have nationwide impact. You'd probably have to overturn somewhere between two and fifty times as many state laws to achieve the same nationwide impact.

[Adam]

Thanks to Prof. Sunstein for attacking this subject; I've been wondering what this LFTB means for awhile. I'd like to respond to some of the comments Mr. Martin made yesterday.

he said: Maybe the praise for refusal to LFTB is an example of an incompletely theorized agreement. It leaves room for a variety of different theories [snip]

This is a fair point, and I've spent some time this morning trying to figure out what some properties LFTB are, even if they aren't fully coherent. (Disclaimer: I'm no scholar, so I feel a bit presumptious here...) Avoiding the creation of new rights seems a part of it. Another seems to be reversing some (but not all) new rights that have been found in the last 20 years or more. Strictly interpreting explicit rights might be another (I'm thinking religion here), but maybe loosely interpreting others (like property).

he says: Why does disapproval of LFTB have to be perfectly articulable in order to be a valid criterion for selecting a Supreme Court justice?

This I don't understand; surely it's important to articulate the criteria for selecting judges. Are you suggesting our leaders should select a judge who adheres to a certain doctrine, when we don't really know what that doctrine is, and indeed it might have different meanings within the judge's and Senator's minds? Of course, you use the modifier 'perfectly', so I'm a bit out of bounds. But only a bit, I think; shouldn't 'perfectly articulable' be our goal? From this citizen's perspective, any amount of misunderstanding when choosing a judge is undesirable.

But if instead of articulable, you meant coherent, there I agree.

A question: what is the relationship between LFTB and 'judicial activism'? I'm not sure I understand what either means...

[Will Baude]

If "impact" is to be the measure then we would also have to pay attention to how much of the federal law was struck down, how much it actually mattered in cases on the ground, to what degree its effects were duplicated by standing state and federal laws, and so on. Striking down RFRA as applied to state and local governments (see Boerne) has a much different effect than forcing Congress to append a jurisdictional has-traveled-in-commerce requirement to the Gun Free School Zones Act (see Lopez).

[AdamP]

Oops, looks like there are two Adams commenting here. My mistake.

[Adam]

Michael:

What a thoughtless comment. A vestige of the once-enumerated powers of the federal government is that states regulate far more in the area of traditional police powers -- i.e. health and morals legislation. Like prohibitions on nude dancing, murdering unborn children, etc.

If you think Sunstein chose federal laws because of "nationwide impact" rather than because it gave him the result he wanted (criticism of Scalia and Thomas), then you have another thing coming, as they say.

[Michael Martin]

Adam,

Not completely thoughtless. States do regulate in areas that the federal government does not. But they also do that regulation one state at a time. Of course some Supreme Court decisions (like the one last term in the wine cases) will affect multiple state regulations. But that's consistent with what I said. Overruling a state law will only have the territorial impact of overruling a federal law if every state has adopted the same law. If not, then there will at least be 1 other state, or as many as 49, that are unaffected.

"It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Brandeis in New State Ice.

But I think Will Baude has the more relevant point here -- it's really about the kind of laws that are being overruled; not their quantity.

[J]

Adam's right in pointing out that asking which Justices have "voted most often to strike down acts of Congress" is a tendentious and inaccurate measure of "bipartisan judicial restraint." Prof. Paul Gewirtz tried to make this claim in a recent New York Times Op-Ed piece that was roundly criticized. (Prof. Laurence Tribe called it "naïve." See
http://www.law.harvard.edu/news/tribe/)

Not only does this leave out the propensity of liberal Justices to strike down state laws regulating abortion, sodomy, etc., but it also omits the Court's practice of using the canon of "constitutional avoidance" to re-write Acts of Congress to effectively achieve the same result as partial judicial invalidation, see, e.g., INS v. St. Cyr, 533 U.S. 289 (2001); Zadvydas v. Davis, 533 U.S. 678 (2001), a practice equally disrespectful of congressional prerogatives.

That said, I don't know whether Prof. Sunstein meant to imply that Justices Scalia and Thomas are the least adherent to "bipartisan restraint" based on their propensity to strike down acts of Congress; he merely recited the data. Although it does seem fair to say that the data are inapposite here.

[FXKLM]

I think what most opponents of LFTB really have in mind is judges allowing their policy preferences to influence their decisions. I think they're looking for some combination of all of all four of the possibilities Prof. Sunstein suggested. It's not that they have a strong preference for a particular judicial philosophy. They just want judges who will apply their philosophy consistently and ignore policy arguments.

The problem with that theory is that it's completely inconsistent with the president's praise for Miers's real-world experience and understanding of the impact of Court decisions on ordinary people. An intellectually honest opponent of LTFB would demand judges like Holmes who seemed not to care what the practical effect of his decisions would be. When Bush criticizes LTFB, I doubt it's anything more than empty rhetoric that he thinks will appeal to the legally unsophisticated.

[AdamP]

I agree with J: I think Prof. Sunstein was just trying to say that Justices Scalia and Thomas don't adhere very well to bipartisan restraint. If they did, you'd be hard pressed to find any metric by which they lead other justices in striking down laws. (Strict bipartisan restraint should mean a justice would never find any law unconstitutional.)

The rest is logic: since S & T are held up as exemplar at not LFTB, then LFTB can't mean bipartisan restraint.

The more I think about it, the more I believe that LFTB is a purely political creation, whose beauty lies in its different meaning to different people. Most people haven't read the Constitution, so when they hear someone renounce LFTB, they think to themselves, "That's right. Judges should stick to the real meaning of the Constitution (referring to their own uneducated vision, as opposed to the actual words)".

From a politician's standpoint, LFTB is best left undefined. But maybe it's a phrase that's no help to anyone in interpretation.

[AdamP]

FXKLM,

you said: I think what most opponents of LFTB really have in mind is judges allowing their policy preferences to influence their decisions.

I'm not sure about this. I think a rather liberal justice, who finds general and sweeping unenumerated rights in the Constitution, would be labelled as legislating from the bench, even if s/he was evenhandedly applying an objective philosophy. So if there's anything to it, there must be more than that.

Unless one thinks that no 'immodest' philosophy can be objective...

[Dennis]

I'm wondering if Prof. Sunstein will accept the following as an appropriate meaning of NLFTB:

1) Is there constitutional text either supporting the asserted right or the asserted power? If there's none, your inquiry ends (right/power can't be constitutional).

2) If the text is ambiguous, consult originalism (meaning original understanding, not original intent) to inform your interpretation. Interpret.

The above 2-step (2-prong, to keep faithful to legal jargon) formula answers Prof. Sunstein's numbered points:

a) bipartisan restraint--if Congress's acts are ultra vires, then striking them down is precisely the right approach (remember step 1: assertions of rights and powers must be grounded in the Constitution). Merely that Scalia/Thomas strike down more statutes than the others is neither here nor there. Why should it matter who strikes down more? After all, striking down is not the same as LFTB. If it were, I doubt Marshall would've penned Marbury.

b) textualism--there's doesn't seem to be much disagreement over whether a judicial inquiry must first refer to the text.

c) originalism--Prof. Sunstein's parade of the horribles is, indeed, what might happen if we adhered to the above model. But is that so bad? My impression is that it's better to entrench social norms via Article V of the Constitution, and not via judicial intervention. But maybe I'm just old fashioned.

d) no new rights--exactly! Or, rather, have as many new rights as you can amend the constitution. Now, I acknowledge that it's hard to do this. However, now dead people explicitly decided to make it hard. A living Constitution will not resurrect those dead men (the Framers). What's wrong with respecting their wishes by adhering to Article V amendment procedures?

That's my take on NLFTB. Of course, a careful reader will recognize the test as something to which Justice Scalia (don't know about Thomas) tries to adhere. Maybe he's not successful in some cases. So we put this approach on a pedestal and strive to be faithful to it. If we are so faithful, can we be accused of LFTB?

[b-psycho]

The Originalist interpretation of being anti-LFTB only looks awkward because there's been way too much ignoring of the Constitution by Congress. Naturally if dung piles up high enough one can't help but look silly shovelling it though they did not place it there...

[Niels Jackson]

What does Sunstein mean that "almost all judges follow the text of the Constitution"? This is surely an incomplete statement, at best. What is the *text* that applies to abortion?

[j]

Niels -- I believe the Professor merely means that each judge attempts (and I think generally in good faith) to decide a constitutional case with reference to the constitution's text. It is merely that people's interpretation of the constitution's text differs. Rarely, though, does a judge decide that the constitutions text is not important.

Even Bolling v Sharpe made such an attempt.

Prof -- a nice post. It is interesting to see the politics shift; the LFTB mantra was part of the progressive crittique of Lochner, and has been picked up on the conservative crittique of Roe.

[williak]

Quick question:

Considering the promise (demand) of more "federalism" as the Commerce Clause reach is trimmed back, wouldn't substantial divergence of statutes and states' constitutional interpretation be bound to occur over time in and between the states? A kind of "different strokes for different folks", "vote with your feet", "red/blue state" solution to current political polarization, delighting both extremes and sounding OK to the vast middle.

At some point thereafter, wouldn't Fed Equal Protection kick in and require a stop be put to all this "roll your own" foolishness? I'm especially thinking of the same-sex marraige train wreck happening before our eyes. But different levels of state-supported abortion services post-Roe/Casey overturn serve just as well. Don't we end up right where we were in the first place (now) - only national law delivered top down is perceived as the fairest in the land?

williak