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Tuesday, July 07, 2015

John Yoo and Me on the Supreme Court and the Separation of Powers

As part of "Celebrate Liberty" month (a joint project of the Federalist Society and the Washington Times), today's Times includes dueling op-eds by John Yoo and me on the separation of powers after and in light of the most recent Supreme Court Term. Here's John's piece; here's mine.

Perhaps not surprisingly, both pieces focus on the marriage cases. John's starts from the premise that "the Supreme Court cannot finally determine any fundamental constitutional dispute," and goes from there to urge popular resistance to the decision from those who disagree--not through disobedience or defiance, but rather "by seeking judicial nominees who will restore primary control over family law and marriage to the states." Thus, as John concludes, "Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not." 

My piece takes somewhat of a different view. Seizing upon the Obergefell dissenters' claims about the anti-democratic nature of the decision, I argue that an ambitious Supreme Court is actually a healthy thing for the separation of powers (as Madison argued in the Federalist No. 51), so long as the Court is properly exercising judicial power in the formal sense--by deciding cases and controversies within its jurisdiction. Thus, as I conclude, "it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree." It's one thing to criticize Obergefell for reaching the wrong answer to the constitutional question; it's quite another to criticize it for answering that question in the first place. (And the same works in reverse--progressives might critique HellerCitizens United, and Shelby County on the merits, but it's hard to dispute the claim that the constitutional questions in those cases were properly before the Court, but cf. Fisher.)

Even though we didn't have a chance to see each other's drafts in advance (or, as such, to respond to each otther), I actually think these pieces fit quite nicely--and help to illuminate the ever-ongoing debate over the proper judicial role.

Posted by Steve Vladeck on July 7, 2015 at 10:08 AM in Article Spotlight, Steve Vladeck | Permalink

Comments

Is it ok to agree with, at least to varying degrees, with both of your positions at the same time?

Posted by: Howard Wasserman | Jul 7, 2015 11:59:07 AM

Howard -- I don't see why not; indeed, as I wrote, I think the pieces fit together nicely. I think the harder question is whether folks buy the distinction I try to make between constitutional interpretations to which we object, and constitutional rulings that are more appropriately characterized as abuses of judicial power...

Posted by: Steve Vladeck | Jul 7, 2015 12:02:56 PM

I buy the distinction. But is there an "I know it when I see it" quality to it? Isn't that why critics of Obergefell or Roe always run to compare it to Dred Scott?

Posted by: Howard Wasserman | Jul 7, 2015 12:53:03 PM

Surely, there will be marginal cases that are close calls (e.g., did the Court really not have standing in Clapper v. Amnesty International; or did it really _have_ standing in Fisher I). But I'm willing to accept that we'll fight over _that_ category if folks will agree that, so long as the Court is presented with a justiciable case-or-controversy, it's not inappropriately arrogating judicial power just by interpreting the relevant constitutional provision in a manner with which we disagree. That doesn't _justify_ such an interpretation, but it changes, to me, the nature of the criticisms thereof.

Posted by: Steve Vladeck | Jul 7, 2015 12:55:53 PM

Why are you debating John Yoo? The only reason that he's not been disbarred is that he's got enough information to take down far too many important people.

His professional writing on the powers of the executive are both ridiculous, and have changed sharply with partisan politics.

Posted by: Barry | Jul 7, 2015 2:40:48 PM

Hi Steve. I think the close questions that matter are not about whether the court has jurisdiction (Clapper, etc) but whether an incorrect decision on the merits still amounts to an legitimate exercise of judicial power. The issue reminds me of the judicial immunity case, Stump v. Sparkman. Everyone agrees that the judge's decision to have a woman secretly sterilized was wrong, but the Court held that its was nonetheless still an act of "judicial power." Even if the court had jurisdiction (and it appeared that it did), I would say that some decisions are so deeply flawed on the merits that the decision is not a legitimate expression of judicial power. Put differently, persons exercising the "judicial power" must engage in "judging" as it is normally understood. Flipping coins or taking bribes to decide a case--even a case within the court's jurisdiction--is not "judging" in a constitutional sense. And just to be clear--I'm not saying Kennedy's decision approaches this threshold. Oh, and by the way, I have no idea where the threshold *actually* is, I just sort of think it has to be somewhere.

Posted by: Jack Preis | Jul 7, 2015 3:41:33 PM

The reason Stump was even arguably not judicial was the absence of formal procedures. If the judge had reached the same decision to grant the sterilization motion but had followed something resembling formal process, it seems to me it would plainly have been judicial. Same with flipping a coin or taking bribes.

So it seems that the line Jack is looking for is about following what looks like a judicial process in hearing *and* deciding the case (perhaps accounting for Fuller's elements). It is not about the substantive correctness of the conclusion.

Posted by: Howard Wasserman | Jul 7, 2015 7:00:13 PM

Fair point about Stump, Howard. Thanks. But I'm actually thinking about something more than just process--or at least more than process in the sense of notice and opportunity to be heard. I guess my point is that Article III's grant of "judicial power" to federal judges limits their discretion to a degree separate and apart from the "cases and controversies" on which they may apply their judicial power. Just as some disputes fall outside the boundaries of "case or controversy," some approaches to adjudication fall outside the boundaries of "judicial power" as it has traditionally been understood.

I am in favor of the result in Obergefell but am uncomfortable with the way Justice Kennedy spoke of the judicial role in discerning "liberty." To be sure, I think the majority's analysis was well within the boundaries of the Anglo-American tradition of judging. I'm simply think that jurisdiction, notice, and opportunity to be heard are not enough to confer legitimacy on a *judicial* decision. I think that judges must engage in reasoning that is peculiar to the judicial department, as distinct from the legislative or executive department.

Posted by: Jack Preis | Jul 7, 2015 8:33:06 PM

Well Barry, normally people debate because they disagree on what they're debating about. So maybe that's why Prof. W is debating Prof. Yoo. If you think his writings really are ridiculous, then you should welcome the debate.

Posted by: AYY | Jul 8, 2015 12:27:44 AM

"Well Barry, normally people debate because they disagree on what they're debating about. So maybe that's why Prof. W is debating Prof. Yoo. If you think his writings really are ridiculous, then you should welcome the debate."

They've been covered. And my point, which you've managed to miss, is that Yoo's opinions are not worthy of debate, any more than those of that Birther dentist/lawyer who's filed several dozen court cases against President Obama, claiming.

Posted by: Barry | Jul 8, 2015 11:19:23 AM

Barry, when you say his writings are ridiculous you are in effect debating him. You're just doing so without trying to support your arguments very well and without giving him a chance to rebut the criticism.

Whatever might have been covered wasn't covered in your comment, so maybe that's why I missed it. Maybe others missed it too. Just like we might have missed the point of the analogy to the dentist/lawyer.


Just because you think Prof Yoo's views aren't worthy of debate doesn't mean the discussion ends at that point. As I remember they said something to that effect about Galileo.

Posted by: AYY | Jul 8, 2015 1:15:39 PM

It is fine to provide a movement to work against Supreme Court opinions and let things fall on the merits. Shades of Prof. Balkin's writings. I am sort of with Barry on John Yoo not being an ideal foil but up to you.

"by seeking judicial nominees who will restore primary control over family law and marriage to the states"

Various past cases (e.g., Loving and Turner) unanimously held that there are some constitutional checks in this area that states can not override. So, you know, good luck with that. I'm with those who support rights of same sex couples, including here.

Posted by: Joe | Jul 8, 2015 2:14:02 PM

Posted by: AYY "Just because you think Prof Yoo's views aren't worthy of debate doesn't mean the discussion ends at that point. As I remember they said something to that effect about Galileo."

Well, wrong. They debated him.


Did or did not John Yoo conspire to torture prisoners, in violation of federal law?

Posted by: Barry | Jul 9, 2015 1:05:54 PM

"They debated him"

Heh. Exactly.

"Did or did not John Yoo conspire to torture prisoners, in violation of federal law?"

I don't know. He doesn't confide in me. But what does this have to do with whether Prof. W. is accountable to you for where he writes his op eds?

Posted by: AYY | Jul 10, 2015 1:01:50 AM

"... if folks will agree that, so long as the Court is presented with a justiciable case-or-controversy, it's not inappropriately arrogating judicial power just by interpreting the relevant constitutional provision in a manner with which we disagree."

I don't know if I agree with that. Take Heller, where I think I roughly agree with Judge Wilkinson. I'll stipulate, purely arguendo, that the majority was, at least, closer than the dissent to the original meaning/intent/expected applications/original-methods-sunshine of the Second Amendment. But I don't believe that a decision grounded, however correctly, on the original meaning of the Second Amendment has any legitimacy - not when voters are divided on this issue, not where views on the issue differ immensely from state to state and locality to locality, not where there's no process theory or fundamental rights rationale for enforcing gun rights in a countermajoritarian way, and not when whatever reasons the authors of the Second Amendment had for enacting it are a million miles from the pros and cons of guns today. I don't see that gun control is a question for the courts and constitutional litigation at all. Now, I could say that the Second Amendment's non-justiciable, but I don't think that. So Heller's a justiciable case where I think the Court inappropriately arrogated judicial power. Roe might be another.

Posted by: Asher | Jul 10, 2015 1:46:35 AM

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