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Eve Tushnet

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Last updated on: July 19, 2009 at 8:11 pm by Eve Tushnet

2009-07-19T20:11:00-04:00 Eve Tushnet

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THINKING ONE’S OWN THOUGHTS IN THE SPACES AROUND THE PRINT: A dilettante’s notes from the American Constitution Society’s “Constitution in 2020” panel.

This is one of those posts where I get up on my hind legs and fuss at my elders and betters. Although in this one, there isn’t much fussin’, since the panel (at the National Press Club, last Tuesday–watch it here!) was really meant more to give the flavor of the perspectives and internal debates you might find if you read the ACS’s new essay collection–titled, in a shocking coincidence, The Constitution in 2020. I still haven’t read it, although I’m planning to read at least some of the pieces. I want to finish Father of Frankenstein first! So… this is how the panel looked to the layest of women, who comes at these issues from a broadly right-wing viewpoint but who has found the Sotomayor hearings a farcical exposure of the weaknesses of the “originalist”/”just read the text” position.

The idea behind the book came from a Reagan-era document from the Meese DOJ, an internal report-type thing called “The Constitution in 2000,” laying out where the administration’s judicial guys wanted to take constitutional interpretation. So The Constitution in 2020 is the progressive version of this ’80s right-wing document. The ACS version has the obvious advantage of coming from an essentially intellectual and academic society, rather than from within a sitting administration. (Has anyone done an organizational-theory or leadership-theory study of the Federalist Society vs. ACS?)

The panelists were introduced by a fire-breathin’ lady, who is apparently the new head of ACS?, and who followed the grand tradition of people who introduce highly intellectual panels by throwing red meat. I liked her! The panelists were Jack Balkin, Reva Siegel, Walter Dellinger, and… uh… Mark Tushnet, alias my father.

What follows are very scattershot notes, in chronological order. Stuff in quotes = exact quotes, as best I could take them down; other stuff following someone’s name = paraphrase; stuff in brackets = me. I’ll probably also duck in and out of the narration in ways which should be transparent to all–e.g. the last couple paragraphs will be just me talking about something my father said which really struck me.

Somebody described the (or a) progressive approach to constitutional interpretation as, “It’s law, but it’s our law”–a “democratic” jurisprudence tempered by the rule of law. The democratic part seemed to be cashed out by the idea that there are “many constitutional interpreters, not just the Supreme Court”–legislatures and citizens can be interpreters as well. [When they say “citizens” I hear “culture,” but those words may have important differences in connotation–not sure. The panelists mostly seemed to mean “social movements” when they said “citizens.” I’m not sure about that. As much as I am out of sympathy with the silent majority, they’re citizens too; shouldn’t somebody speak for the people who keep their heads down and try to play by the rules?

[Anyway, this point about culture shifting our interpretations of the constitutional text is both a) obviously true! and b) the universal alibi for courts who want to pretend that they’re just responding to preexisting cultural shifts. More on this anon.]

MVT (my dad): “Design of national health care policy is a matter of Constitutional significance, even if the courts have nothing to say about it,” ditto education. In the US, the courts have not developed/taken on a notion of social-welfare rights.

Dellinger: The current Supreme Court pretends that courts and judges are the only constitutional actors/interpreters, ignoring the President and Congress. If the Congress creates legislation creating rights against the state, the Supreme Court asks whether they would have created these rights in a lawsuit brought directly under the Constitution, and if the answer is no, then they say Congress can’t do it either. His example is Bush v. Gore: There was already a process for determining the outcome of contested elections, which the court simply bypassed. [I agree.]

Bob Dornan (passed?) a bill to hunt out and expel HIV+ servicemembers. “Why can’t the President say this is a restraint on liberty which hurts military preparedness, and thus it is unconstitutional, regardless of what the Court would hold?” [Ohhhh… guy, do you really want to go there? I thought the “imperial presidency” was part of the problem!]

Balkin: Gay rights advanced in state legislatures due to social movements, long before the Supreme Court decided Lawrence. [This point gets challenged later.] Similarly, the DC gun-rights case, Heller, only happened long after the gun-rights social movement had won a lot of cultural success.

Siegel: What is uniquely valuable in the judicial branch? “We prize in courts their independence,” the lack of immediate electoral reprisal. Examples of the Rehnquist Court vs. Congress: VAWA, parts of the ADA, RFRA. There’s a “signaling function”: Representative branches can inform the Court that there’s a changing vision of civil rights.

Balkin asks MVT what difference it makes if we think about e.g. Social Security as a Constitutional matter. He replies that this reframing “should alter the way we talk about [these social-welfare issues] in our political discourse. …’The best way to maximize distribution of health care’ rather than whether some people should have it and others shouldn’t.”

Also [or, as both cause and effect of the above], this reframing would change our understanding of “what it means to be an American.”

And the reframing “would give the statutes we enact to embody these values a special kind of normative weight.” [And therefore maybe also more deference from the Court?]

Balkin: Democratic constitutonalism renders confirmation-hearing questions like, “Are you an umpire?”, silly. Instead, we should be asking, “How do courts integrate themselves into the larger web of interpreters?” We shouldn’t ask, “Tell us what the Constitution is.” [He doesn’t give an alternative question, but maybe, “Tell me what the Court’s interpretive role should be”? More on confirmation-hearing questions at the end.]

[How much of the integrative/social-movements claim is empirical and how much is normative? When the court can push the culture, when should it? Or, to put it another and more pointed way, would anyone on this panel actually vote to uphold DOMA?]

Siegel: The Court can smack Congress to protect individuals’ civil rights but not to restrain legislation designed to protect individuals’ civil rights. [This is both bracingly coherent and intelligible… and a bit “heads I win, tails you lose” if you take a more procedure-oriented view of the law. More on procedure vs. outcome in a bit.]

The courts’ “special purpose”: “protecting relatively disempowered individuals” against “mobilized majorities.” The courts can’t stop a really determined majority, but they can ask the majority to “reflect”–basically, to take some time to consider whether they really want to be such colossal jerks. [Not her words!]

[I was really sympathetic to Siegel’s focus on what makes the courts unique, since the rest of the panel was so focused on knitting the courts into a broader web of interpreters. Somebody needs to talk about why we should bother making courts interpreters at all. Still, her comments really brought out how language like “minority” and “civil rights” relies on specific traditions, which can be challenged. Within these traditions, women are a minority, doctors who won’t prescribe contraception aren’t, and polygamists might be in ten years, you know?]

MVT: Right-wing “originalism” is basically a rallying cry in favor of some substantive goals and against others. [Sort of the parallel criticism to the one I just made: “Originalism” is a tradition in which many of the terms conceal their connotations.]

[Here again I wonder: When do/should judges find against their substantive-outcome beliefs?–e.g. Thomas’s opinion in Lawrence. This question might be esp. knotty for Siegel (assuming I’m not misinterpreting her comments), since it would require substantive philosophical judgment on who constitutes a relevant minority and what her rights against the majority should look like. …Dellinger asked this very question a bit later, but said only that it’s “very, very hard” to answer. Thanks, guy.]

MVT also uses the example of gay rights (and disability rights) coming mostly through statute–although Siegel challenges this and says that state courts have not been so quiet on gay rights. She says state courts have “empowered certain voices otherwise not heard in politics,” and “created a space” for legislative action. [“Certain voices”–there’s that unspoken tradition again! And again, the implication that legislatures really want to be leftists a.k.a. not jerks, and the courts need to give them permission.]

My father then noted that in 2020, Scalia–“the oldest of the conservatives”–will be 83, “younger than Justice Stevens is now.” The dismay in the room was audible.

His suggestion for addressing this actuarial fact, offered with an uneven grin: “The number nine is not written.” Why not just add a few justices here and there?

Balkin suggests, more gently, term limits. [I’d agree with this, and think it will become boringly obvious if lifespans continue to lengthen.]

Siegel invokes empathy. [And in fact I agreed with her specific examples (I forget what they were), but her approach again seemed a bit “You should defer to the legislatures when my outcome wins, because I’m right, but not when my outcome loses.” When the law is against you, invoke the facts; when the facts are against you, invoke the law; when the law and the facts are against you, pound the empathy!]

[How does democratic Constitutionalism deal with the shocking popularity of torture? …I suppose I should read the book.]
—————–
OK, all the rest of this is just Eve talking. One split I noticed in the panel was a three-way divide between what you might call a unitive interpretive theory vs. a unitive procedural theory vs. a unitive political-outcome or philosophical theory. Obviously all three of these intertwine and interact, and it’s legit for a judge to draw from one or the other more from case to case. But I’d put my father roughly more in the “procedural” camp and Siegel roughly more in the “philosophical” camp. I didn’t get a good enough sense of the other two panelists’ positions to take a guess. But would talking in these terms be illuminating? It might help address some of the concerns of the “textualist” or “judicial humility in the face of text and legislature” types.

Because right now I do wonder whether democratic constitutionalism is just a fancy way of saying that both legislature and courts (and the President??) should drag the text, kicking and screaming, into the progressive sunshine whenever they get the chance. Which, if you’re a progressive, might be a very good idea! And yet the more procedure- and interpretive-theory-oriented talk from the panelists seemed to suggest that this was not the Wizard behind the curtain.

Anyway, last thought. After the panel, a woman was talking with my father, and I didn’t hear what she said but it might’ve been something about which Supreme Court justices he most admired or something. And again, I don’t actually remember whom he named–Marshall I’m 99% sure, and someone else–but his explanation really stuck with me. With a kind of baffled certainty, he said, “He was a good judge. He was a good judge.”

And that tone of voice was very familiar to me. It’s the way people talk about leadership: the irreducible capacity not merely for prudence but for some combination of right philosophy and risk and rhetoric. The beliefs really do matter, but there’s something else there, something which can only be put into words if the words are poetry.

So I started chewing on whether there would be any way to orient our hazing-ritual confirmation hearings more toward an assessment of leadership. Wryly I offer, “Name the three Justices you most hope to be compared to, and the three you most fear being compared to, and explain why”! But another point about leadership is that it’s much easier to rule things out than to say what should be done. Would it be possible to ask, “Is there any chance there’s a constitutional right to X? What are some things which might convince you that there is one, and that there isn’t?” rather than, “How would you decide a case about X?” I don’t know. This post suggests that Sen. Cornyn tried something similar and got precisely bupkes for his troubles, so maybe not. (I adore how progressives can laud the cultural potency of social movements, and the need for the courts to protect the rights of the minority, but at confirmation hearings nobody has a thought or a personality anymore! And visa-obviously-versa for the right-wingers as well.)

I suppose “I don’t know” is a fitting note on which to end these notes of a professional amateur!

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