« How Companies Help Phishers and Fraudsters | Main | It's Alive! »

Thursday, August 25, 2005

Rappaport on Stevens

Mike Rappaport at the Right Coast has some thoughts about the Stevens speech reported in the New York Times

Stevens is reported to have said that he would have made different decisions as a legislator from the ones he made as a Justice if he had been presented with the question of the policy soundness of issues at stake in Raich and Kelo.  That is, as a policy matter he would prefer for the the Feds not to be able to go after California medical marijuana users and would have preferred that the property-holder not be kicked off her land in New London to make room for economic development.  Still, he claimed, the law required a different outcome and he went with the law.   

No major surprises here: sometimes judges would prefer a different outcome from the one they think is required by law.  Indeed, we generally like these stories (even when they come from Scalia) because they remind us that our judges aren't simply using their authority to enact their policy preferences.

Now what does Rappaport make of this unexceptional point?  Very hard to decipher.  Here's his analysis: 

In analying Stevens' comments, we can distinguish several ways in which a judge can behave:

-- First, the judge can decide a case as he would if he were a legislator.

-- Second, the judge can decide a case in accordance with the content of a constitutional provision (or of several interrelated constitutional provisions) that he believes would be desirable.

-- Third, the judge can decide based on the content of a constitutional provision that he believes the Framers gave to it.

While Stevens is portraying himself as restrained by the law, he in fact seems to fall under the first and the second categories.

In the case of Raich involving medical marijuana, Stevens is saying he would vote to allow the use of such marijuana.  That just means he is not following his desires in the first sense.  In the case of Kelo, it is a little harder to interpret Stevens.  Since Stevens claims to believe that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials," one might think he feels bound by the Framers' meaning.  But I don't think so.  Instead, I think he believes that what he regards as the most desirable reading of constitutional clauses generally is to allow the government to make economic decisions without constitutional restraint and therefore he is forced to construe the public use provision of the clause more leniently than he might otherwise desire. If I am right, then Stevens is restraining himself only in the second sense -- he is deciding the case differently than he would vote for as a legislator, but he is still choosing to give the constitutional provisions the meaning he believes are desirable.  He cannot claim to be bound by directions that he would not choose.

I find it hard to make much sense of this.  Is Rappaport's point that Stevens' purported preference for his account of the rule of law is still ultimately a ruling in accordance with his preferences generally such that Stevens gets no "credit" for ignoring the policy preferences he would have had as a legislator?  That can't be quite what Rappaport means because the justice who makes decisions based on what the Framers may have thought is just as committed to an interpretive preference that he gets to follow when interpreting a provision against her policy preferences.  For some reason, though, Rappaport thinks originalist decisions have some special status and furnish their judicial adherents with a free pass to make the claim that they ignored their preferences altogether in their judgments when they, all the same, get to rule in accordance with their interpretive preference.

So we learned something, I suppose, from Rappaport's analysis: policy preferences and interpretive preferences are two different matters and when a justice claims that she ignored her policy preferences, don't think she got nothing out of the decision because she got to follow her interpretive preference.  Fair enough.  But two points, then, in response:

1.  Originalists get no special consideration: they are also following their interpretive preferences.

2.  If we had to choose, I think we would tend to want justices who follow their interpretive preferences over their policy preferences when the two conflict.

Finally, good luck with your proposed amendment, Mike.  It sure beats a federal marriage amendment.  But, with all due respect to those of you worked up about Kelo, can't you think of more important and fundamental ways to amend the Constitution?

Posted by Ethan Leib on August 25, 2005 at 03:24 PM in Blogging | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Rappaport on Stevens:

» Restrain Yourself from The Debate Link
And so it seems that some righties can't get there heads around the fact that Stevens might actually believe the law binds him to this particular result. Mike Rappaport, for example, says "give me a break" and thinks Stevens merely wants to deflect c... [Read More]

Tracked on Aug 26, 2005 2:34:22 AM

» Blog Round-Up - Friday, August 26th from SCOTUSblog
PrawfsBlawg has this response to Dahlia Lithwick's recent article on the "living" Constitution and this post on a speech Justice Stevens recently gave, profiled by the New York Times here. The Right Coast also comments on Justice Steven's speech here.... [Read More]

Tracked on Aug 26, 2005 9:33:08 AM

» Blog Round-Up - Friday, August 26th from SCOTUSblog
PrawfsBlawg has this response to Dahlia Lithwick's recent article on the "living" Constitution and this post on a speech Justice Stevens recently gave, profiled by the New York Times here. The Right Coast also comments on Justice Stevens' speech here.... [Read More]

Tracked on Aug 26, 2005 9:35:02 AM


Okay, with the clarification, I agree. To the degree either Type 1 or Type 2 preferences come into at all, there is often quite a bit to be said for Type 2 preferences. The Rule of Law as a Law of Rules and all that.

Which plays into the broader point that judges who rule against their Type 1 preferences rarely rule against their Type 2 preferences.

Posted by: Will Baude | Aug 27, 2005 12:07:28 AM

One clarification: I wasn't condoning constitutional utilitarianism. It was an analogy to help differentiate Type 1 and Type 2 preferences.

Posted by: Ethan Leib | Aug 26, 2005 11:49:52 PM

Those who focus on constitutional law often are not generalists; they often are concerned with particular lines of work. For instance, Thurgood Marshall could very well think some aspects of the Constitution left a bit to be desired, and still focus on the parts he did like. Ditto for those who focus on criminal law but disagree with some of the congressional power provisions, etc. In fact, there are enough provisions for everyone to have some that they don't like. The cited book underlines the point as does those who follow a true judicial restraint philosophy.

Many subjects come to mind. People against slavery didn't suddenly not become judges because they knew the Constitution in some ways secured it. Ditto those for or against abortion (all those liberal anti-Roe sorts like Ely), or some sorts of speech, or the death penalty, or ...

The Constitution as a whole doesn't "suck" per se in many of their opinions sure ... but they very well can decide many opinions in which their policy and constitutional judgments differ. If the two differ 75% of the time, sure, maybe they will go into another line of work.

But, especially given how Stevens is a precedent sort of guy (he opposed affirmative action before he supported it), why opposition in this area is not possible is unclear.

Posted by: Joe | Aug 26, 2005 11:39:07 PM

Ethan: I don't happen to think judges should decide cases on a utilitarian basis at all, but I do agree that there are circumstances under which rule-utilitarian judges would be better than act-utilitarian ones. (But not all circumstances; as Adrian Vermeule has pointed out, the judiciary is a "they", not an "it", so a judge's power to credibly commit to the rules he announces can be very limited sometimes).

More generally: I confess I find the commenters who think this thread is one about judicial activism very baffling. It's just an interesting fact that most people who devote their lives in large part to constitutional law (which Supreme Court justices, among others do) tend to be people who think that the rules contained in the constitution are good rules. They may still think those rules sometimes cut against their own preferences in specific cases but I know of any member of the Supreme Court who thinks that many of the Constitutionally mandated rules are themselves bad rules on the whole.

I happen to think this empirical fact isn't nefarious-- people who think the Constitution sucks find other lines of work-- but that's just me. And for an example of contradictions to my general observation, see Bill Eskridge's Constitutional Stupidies, Constitutional Tragedies.

Posted by: Will Baude | Aug 26, 2005 9:08:29 PM

First off, Stevens' "claim" was made by all sides. Many conservatives (to my view annoyingly) throw in "if I was a legislator I ..." in their opinions while deciding the opposite. And, it's nothing special. For instance, even Thomas would admit there is a decent amount of discretion in the Commerce Clause. This allows policy decisions he would oppose but would be constitutional. The theme seems to me obvious.

Second, one gets an idea that people think he's lying. These forget the guy is a libertarian Republican sort that in the 1970s said in a dissent he didn't think much of the minimum wage as a policy, but precedent and logic mandated that singling out application of the fed. minimum wage law to state employees at a 10A violation was silly.

"But I don't think so. Instead, I think he believes that what he regards as the most desirable reading of constitutional clauses generally is to allow the government to make economic decisions without constitutional restraint and therefore he is forced to construe the public use provision of the clause more leniently than he might otherwise desire."

Why? I personally think Stevens believes the "most desirable reading" is what the Constitution itself demands. This includes a living Constitution view, that he thinks the Framers' intended. Likewise, given his concurrence in Moore and various other opinions, he thinks there are various "constitutional restraints" on gov't economic policy. Finally, he realizes that the Constitution does supply flexibility all the same, and that policy decisions in that area might differ from his own. Policy preferences however are influenced by constitutional views, so there is some overlap.

But, why not just try to psychoanalyze the guy?

Posted by: Joe | Aug 26, 2005 6:07:44 PM

Notice that no one jumped on Thomas for BRAGGING IN HIS LAWRENCE DISSENTING OPINION about how principled he is. Who knows? Maybe deep down Thomas really does think that sodomy laws make a great deal of sense.

The reason judges frequently make these statements is that they are frequently charged with doing the opposite. Thus, a judge who favors abortion rights but thinks Roe was wrong is going to be less scrutinized than a judge who opposes abortion rights and thinks Roe was wrong, or a judge who favors abortion rights and thinks Roe was right.

I made this point on the blog long ago: There are precious few people whose constitutional principles differ from their politics.

Posted by: Hillel Levin | Aug 26, 2005 3:11:44 PM

Will: You might surf over to Rappaport's reply to me at http://therightcoast.blogspot.com/2005/08/justice-stevens-responsibility.html.

The response leads me to believe that your restatement was actually a rather different point. From my point of view, a better one too. Still, if you'd permit the analogy: wouldn't we want justices to be rule-utilitarians rather than act-utilitarians for the sake of the rule of law?

Posted by: Ethan Leib | Aug 26, 2005 1:37:20 PM

When I see these sorts of debates, I have to confess that it makes me a bit sad. In my mind there is something tragic about seeing so much intellectual talent being squandered on such a stale and fruitless debate. It sometimes seems as though constitutional theory has reach the end-of-history and is now condemned to cycle stale debates about judicial restraint and judicial activism that neither persuade or clarify.

One of the great problems of the legal academy is the huge amount of prestige that constitutional law and theory continue to enjoy despite their manifest intellectual exhaustion.

Posted by: Private Law Guy | Aug 26, 2005 10:12:36 AM

Ethan: Right.

It is, in retrospect, intriguing the degree to which, e.g., Justice Scalia tends to also make policy arguments in favor of the Constitutional rules he believes to be mandated by the Constitution. I'm thinking of his Apprendi line of opinions ("It has never been efficient, but it has always been free"), his McCreary dissent ("Discussing the way other countries envy us for our abil ity to have a president talk about God"), and so on. One would have thought that such policy arguments were entirely irrelevant from the question of what the Constitution, according to Scalia, actually meant. (Or, as Judge Easterbrook once put it, an appeal to "function" is a claim that something else would be better than the Constitution, which may be true but nevertheless isn't an admissible argument about interpretation of the structure we have.)

Posted by: Will Baude | Aug 26, 2005 9:07:31 AM

Will: You make an astute point for Rappaport. But notice that Rappaport's Type 3 decisions are limited to originalist decisions; they are not so limited in your much more clear recitation. In your reiteration, I take it you are conceeding that Type 3 preferences needn't be originalist. In any case, you have certainly made sense out of the nonsense for me, if that is what he was after. Still, I do wonder whether Type 2 preferences are easy to distinguish from Type 3 preferences in practice because justices don't as often tell us about their Type 2 preferences; they are eager to mask them as Type 3 preferences, alas.

Posted by: Ethan Leib | Aug 26, 2005 1:45:57 AM

Incidentally it would be interesting to know if there are any justices on the Supreme Court who vote in ways that are counter not only to their type-1 preferences (as Stevens and Scalia, and many others, both clearly do) but also their type-2 preferences. That is, a Justice who says, I think this entire doctrine or provision is unwise and ill-considered and ought to be eliminated, but I think that it is a part of our constitution, properly interpreted, and therefore cannot be eliminated by me.

It is hard to think of any clear examples.

Posted by: Will Baude | Aug 25, 2005 11:28:05 PM

I think Professor Rappaport's point is actually quite astute, and mirrors something Jack Balkin posted on the conlaw listserv a few years back.

As I understand it, Rappaport points out three distinct questions a judge can ask:

1: Whether these individual laws and plaintiffs are "good" ones, and whether one would support them on a case-by-case basis as a legislator.

2: What the desirable constitutional rule about these laws would be.

3: Whether we the people in fact have adopted that rule in the U.S. Constitution.

Now Balkin made the same complaint against Scalia that Rappaport makes here. In his originalism speech that he used to give all over the place (and maybe still does) Scalia likes to give Kyllo (marijuana scanners) and Texas v Johnson (flagburning) as two examples of cases he decided against his own personal preferences. Scalia let the flagburner and the marijuana-grower go free even though he said he didn't want to. But Scalia might well still think broad privacy and speech protections are desirable, that is, he might have voted against type 1 preferences, but not type 2 preferences. This is Rappaport's point about Stevens, too, although it is actually a little unclear what Stevens's type-2 preference on the takings clause is.

For an example of somebody who has a type-3 constitutional interpretation different than their type-2 preference, you'd have to look at, say, Professor David Currie, one of the few academics who has published defenses of (part of) the modern doctrine of sovereign immunity. He readily confesses not only that he would like individual plaintiffs to be able to recover, but that sovereign immunity is a nasty, nasty, constitutional doctrine and it ought to be done away with. But, he thinks, on the original understanding of the constitution it is there, and ought to be enforced while we have it. For many more examples of both type-1 and type-2 preferences see Robert Cover, Justice Accused.

Posted by: Will Baude | Aug 25, 2005 11:24:50 PM

Only Stevens and his clerks know whether he first selects his desired outcome...and then finds a rationale, or whether he neutrally applies the law to the facts, and then lets the holding fall where it may.As I noted here, I am forced to the conclusion that it is the former. What else can explain a result so utterly at variance with the text of the 5th amendment? It might be possible, with a very creative reading, to squeeze the meaning reached by Justice Stevens from the constitution, just as it might be possible, with a very, very creative reading, to squeeze the result in Griswold out of the constitution - but to reach such results, you have to be looking specifically for them, because they are certainly not inherent in the text.

In any instance, I remain indebted to Mike for his excellent paper on the recess appointment clause, so I'm not going to contradict him. I would, however, suggest that his proposed amendment may be incomplete. since Justice Stevens has evidently abandoned all pretence of fidelity to the text, I propose that the amendment run, "Notwithstanding the erroneous decision of the Supreme Court, public use is public use, Justice Stevens this means you." Alternatively, perhaps merely re-ratifying the fifth amendment would do the trick, although in either case, it is unclear why a Court which is willing to ignore the fifth amendment would be willing to pay any more heed to a twenty-eighth. Would the last member of the court to depart from the text please turn out the lights?

Posted by: Simon | Aug 25, 2005 5:45:15 PM

Mike, do you really believe that it's psychologically possible to "neutrally appl[y] the law to the facts, and then let[] the holding fall where it may?" I mean, I think the difference between Reinhardt and other judges is that he admits that a sense of the virtue of a case enters his brain before it goes into neutral law-applying mode. Really. Psychologically, can you imagine the creature that neutrally applies law to stories presented to him/her?

(incidentally, I'm trying out another experimental blog of my own: get it while it still exists!)

Posted by: Paul Gowder | Aug 25, 2005 5:19:25 PM

Well, it's a bit more complicated than that. In Kelo and Raich, Stevens might indeed have been expressing his policy preferences as to later cases. Indeed, one reason so many liberals supported the result in Raich was due to fear that if Congress' commerce power were limited, other "desirable" laws would be at risk. Thus, Kelo and Raich may have been ruses to ensure that future, "good" laws, would not be at risk.

So, again, perhaps while Stevens did not like the policy outcomes in Kelo and Raich, he might still have been acting as a policy maker. To make his (future) policy omelettes, he had to break a couple of eggs.

Again, I don't know whether this is the case. Only Stevens and his clerks know whether he first selects his desired outcome (as Judge Reinhardt admitted to doing), and then finds a rationale, or whether he neutrally applies the law to the facts, and then lets the holding fall where it may.

Posted by: Mike | Aug 25, 2005 5:12:53 PM

See comments at Althouse. Needless to say, I think Justice Stevens' suggestion that he doesn't like the result in Kelo is almost as hollow as Justice Ginsburg's disclaimers regarding Roe or Justice Breyer's claims that his jurisprudence aims to defend "the democratic system the Constitution's Framers sought to build". He is attempting to defend the indefinsible using the only tools at his disposal. He cannot defend the result; he cannot defend the method; all that is left is an appeal to trust his vision of what the law requires. Do not believe it.

Posted by: Simon | Aug 25, 2005 4:41:42 PM

Post a comment