1. He was a great writer. One of the things I figured out 35 years ago is that Leftist justices are horrible writers. At first, I thought this was a coincidence. I eventually realized, though, that if you have to cite three different cases in order to support four disparate points in a single sentence, you’re not relying on precedent. Instead, you’re just making it up as you go along, and dressing it up in a slimy filament of ostensible case authority. Scalia’s decisions never fell prey to that pernicious habit. He wrote in a clear, declarative fashion, looking first to the Constitution and then at legitimate case precedent flowing from it. When I read his decisions, I didn’t feel as if I was suffering from brain death; I felt stimulated.
2. He was a true constitutionalist. Aside from the vigor and intelligence that shaped his opinions, Scalia’s true genius was that he trusted the Constitution. He believed that America’s greatness and her citizens’ freedom were rooted in that contract and gave it his complete loyalty. He never allowed faddishness to deflect his focus on the rights the Constitution grants to Americans and the limitations it places on government. He was, in other words, the antithesis of a big government judicial activist.
3. He was a good friend. Every lawyer knows about the fact that Scalia was able to separate the personal from the political. He forged strong friendships with his fellow justices, no matter their ideological outlook.
4. I met his son once. A nice young man. We sat at the same table at a legal seminar.
5. McConnell, thank goodness, says that he will not be scheduling any hearings to replace Scalia during the last few months of Obama’s term. Sure, the next president might be Hillary or Bernie, but the next president could also be Cruz, or Rubio, or even Trump. My sense is that, given the chance, Trump would appoint Judge Judy and, I have to say, Judge Judy would be a huge improvement over anyone a Leftist president would appoint.
6. I have to share with you the things that are cropping up on the Lefter side of my Facebook feed. Some originated with my Leftist friends; some are things they “liked” (such as the Gov. Jerry Brown thing), and that therefore showed up on their feeds:
“Would the Republicans block it if President Obama nominated Hillary Clinton?” (No, of course not, because there’s nothing like putting on the Supreme Court a soon-to-be indicted woman who devastated American national security.)
From Calif. Gov. Jerry Brown: “Couldn’t Mitch McConnell have the decency to at least wait until the funeral before playing cynical politics with this vacancy. Such obstruction and sheer arrogance is unconscionable and deserves the condemnation of all Americans.”
Speaking of swift political action, could Obama have had the decency not to include in his bland, colorless statement his intention to nominate someone? (“I plan to fulfill my constitutional responsibility to nominate a successor in due time.”) And could Obama have found a moment to put on a tie out of respect? In light of the fact that Scalia was a Supreme Court justice who had served for thirty years, I think this image is disgraceful:
Bernie Sanders very graciously said, “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court.” If you dislikes a person’s politics, that’s a classy way to remember them. Bernie may love his murderous communist dictators, but he can still present as a decent human being.
“I wonder how quickly President Obama can get a Supreme Court Justice approved?” (Not very quickly at all, God willing.)
A young man marked the occasion by putting this quote from Clarence Darrow on his Facebook page: “I have never killed a man, but I have read many obituaries with great pleasure.” (Too bad I don’t know that young man’s name, or I’d start scanning the obituary pages myself.)
“And Obama is still in office to appoint a more healthy Justice to the Supreme Court.”
“Now that Scalia is gone, who will help Clarence Thomas?” (And don’t you just love that oozing, suppurating racism?)
Boehner was merely an effective manager, rather than an effective conservative
Andrew Klavan is kind enough to point out that Boehner was in some measure a very effective House Majority Leader:
I can’t help but notice that under Boehner — and largely because of Boehner, because Boehner outsmarted President Obama in the 2013 budget negotiations — federal spending has declined over a five year period for the first time since the post World War II cutbacks. And because of this, as the economy has struggled to a sputtering recovery despite Democrat mismanagement, the deficit has been sharply reduced…
Also under Boehner — and also largely because of then-minority leader Boehner (and the likewise much-maligned-by-conservatives Mitch McConnell in the Senate) — the disaster of Obamacare is 100% attributable to the Democrats. It hasn’t got a single Republican fingerprint on it.
As Klavan sees it, Boehner’s fall came about solely because he wouldn’t engage in a head-to-head fight with Obama over Planned Parenthood. Boehner believed (and still believes) that fight will destroy chances for a Republican victory in 2016. I have two points to make.
First, if Boehner’s right that the fight will fail it’s in part because he refuses to engage in the fight at the intellectual level. Carly Fiorina is the first prominent Republican to frame the fight in non-religious terms, and boy did she make the Left squirm when she did so. In other words, part of why Boehner can’t win the fight is because, even though he’s pro-Life, he has absolutely no idea how to fight against abortion at anything other than a monetary level.
Second, speaking of that monetary level, the fight really boils down to something James Taranto said three years ago, and it’s about the difference between checkbook Republicans and ideologically-driven conservatives. The context was the fact that Paul Ryan seemed to understand a conservative vision of small, not big, government:
Yes, he’s not even out of office, but the Lefties are seeing which way the wind blows — and that is to an unanswerable Supreme “Court” that operates to permanently enshrine Leftist initiatives. What better place for Obama? And so it is that I find this poster popping up all over my Facebook feed:
“He’s a superb writing, a former constitutional law professor, and has the right temperament and values.” I disagree with every single statement in that sentence. When others don’t write for him, he’s a turgid, ponderous, and sometimes incoherent writer and speaker; he was a “lecturer,” not a “professor,” with the former having lower status than the latter; he has a vindictive temperament; and his values are hard Left, anti-American, anti-Israel, pro-sharia, and generally distasteful and dangerous.
No wonder the Lefties want him to be their chief rubber-stamper.
My dog woke me early, which bothered me at the time but now seems like a good thing, since I can get a little blogging in before the work day begins. Without further ado, a few posts I think are worth you time:
On Democrats and racism
If you read one thing today, you have to read Jeffrey Lord’s open letter to Debbie Wasserman-Schultz asking her when Democrats are going to confess to and apologize for the fact that racism is their legacy to America — and one that they pursued aggressively for more than a century.
After you’ve read it, if you won’t turn yourself into a pariah amongst family and friends, share it around. After all, two can play at the Alinsky game, but for conservatives, the Alinsky game is one in which each individual conservatives must be an activist, because there won’t be a media/Hollywood conglomerate around to do the heavy lifting.
Andrew McCarthy outdid himself on this one, honing in on the giveaway that the Supreme Court is a legislative branch of the Progressives:
Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.
Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?
There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.
How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.
But not the Court’s lefties, not on the major cases.
And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.
But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.
That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.
Please be sure to read the whole thing. And then start thinking about how to mobilize a grassroots force that addresses this damage to our constitutional system.
This morning, the Supreme Court issued two decisions. In the case of Obamacare, contrary to long-standing precedent that requires courts first to look at the statute’s wording and then, if that is not helpful, to check out the legislative history that led to that wording (Gruber demonstrates the wording was intentional), Justice Roberts held that it was the Court’s responsibility to rubber-stamp the law. My take is that in so holding, the Supreme Court just rendered itself irrelevant. That is, if it’s no longer looking at the law under a constitutional rubric, but is simply following the legislative desire as stated at the time the Court rules, who needs it?
Or as Justice Scalia says:
The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power — the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’ Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126 (1989).
Trying to make its judge-empowering approach seem respectful of congressional authority, the Court asserts that its decision merely ensures that the Affordable Care Act operates the way Congress ‘meant [it] to operate.’ Ante, at 17. First of all, what makes the Court so sure that Congress ‘meant’ tax credits to be available everywhere? Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges. More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. ‘If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.’ Lamie, supra, at 542. In the meantime, this Court ‘has no roving license . . . to disregard clear language simply on the view that . . . Congress “must have intended” something broader.’ Bay Mills, 572 U. S., at ___ (slip op., at 11).
With regard to the FHA decision, which apparently says that disparate impact claims can be brought under FHA, I have less to say, because I’ve thought about it less. It strikes me, though, that it gives an activist FHA unlimited power to make up things as it goes along. That can’t be good.
For the next few weeks, I’m helping out at an actual office. This means that, as was the case today, I may not get to my computer until later in the day. You might want to consider my blog the place to go for afternoon and early evening reading. I’ve got a few articles saved from yesterday, and I’ll share them here before I start reading today’s material:
The Supreme Court and Gay Marriage
Traditionally, Supreme Court justices have worked on being inscrutable. It’s been part of the mystique. Even during oral argument, their questions aren’t necessarily an indicator about which way any given justice will decide a case. This is important, because it creates the appearance of impartiality and fealty to the Constitution, rather than to personal bias.
At least, that used to be the case. When it comes to gay marriage, Justice Ruth Bader Ginsburg, the worst writer on the Supreme Court, has also abandoned all pretense of impartiality of obeisance to the Constitution. Consider her an enthusiastic “yes” vote for gay marriage.
VDH outdoes himself analyzing the Clintons’ peculiar brand of utter corruption
Sometimes Victor Davis Hanson has an almost oracular quality, when his writing transcends ordinary opinion pieces and goes into some transcendent outer zone. He’s done it today with his take on the Clintons’ epic immorality:
Fortunately — and the lawyers amongst you will appreciate this — I’m getting access to Westlaw again, and won’t be trapped in Lexis hell. When it comes to Westlaw, it’s a brilliant interface and I feel like a brilliant practitioner when I use it.
I’m not going to stop blogging, though, just because of a little legal work. I’ve been collecting interesting information, and now I get to share it with you:
Obama’s misguided (or evil) efforts to spin his Middle Eastern failures as successes
I’ve been trying to have a more optimistic view of things in my life lately, along the lines of “when life hands you lemons, make lemonade.” Traffic tickets are an opportunity to be a better driver. Joint problems are a reminder to repair my body before old-age makes doing so impossible. Things like that — seeing problems as opportunities for improvement.
If you read only one thing today (and tomorrow too), I think you should read Sam Harris’s “Why Don’t I Criticize Israel?” In it, Harris, who is renowned for his very well-articulated atheism, explains that one doesn’t have to believe in Israel’s religious right to the land in order to support her in the current war with Hamas.
The article is very dense, but never boring or confusing. Harris methodically works his way through the case for Israel. He’s not a starry-eyed Israel fan. He is, instead, a realist who feels that any moral compass, atheist or religious, must come down on the side that values human life, rather than the one that destroys it.
To whet your appetite, here’s just one very small segment of his entire article:
The truth is that everything you need to know about the moral imbalance between Israel and her enemies can be understood on the topic of human shields. Who uses human shields? Well, Hamas certainly does. They shoot their rockets from residential neighborhoods, from beside schools, and hospitals, and mosques. Muslims in other recent conflicts, in Iraq and elsewhere, have also used human shields. They have laid their rifles on the shoulders of their own children and shot from behind their bodies.
Consider the moral difference between using human shields and being deterred by them. That is the difference we’re talking about. The Israelis and other Western powers are deterred, however imperfectly, by the Muslim use of human shields in these conflicts, as we should be. It is morally abhorrent to kill noncombatants if you can avoid it. It’s certainly abhorrent to shoot through the bodies of children to get at your adversary. But take a moment to reflect on how contemptible this behavior is. And understand how cynical it is. The Muslims are acting on the assumption—the knowledge, in fact—that the infidels with whom they fight, the very people whom their religion does nothing but vilify, will be deterred by their use of Muslim human shields. They consider the Jews the spawn of apes and pigs—and yet they rely on the fact that they don’t want to kill Muslim noncombatants. [Note: The term “Muslims” in this paragraph means “Muslim combatants” of the sort that Western forces have encountered in Iraq, Afghanistan, and elsewhere. The term “jihadists” would have been too narrow, but I was not suggesting that all Muslims support the use of human shields or are anti-Semitic, at war with the West, etc.]
Once you’ve read the whole thing, please share it with everyone. It deserves to make the rounds.
** 2 **
Hamas is so determined to win the war against Israel by having the tallest pile of dead bodies that it physically beats people who try to evacuate buildings after receiving Israel’s humanitarian warnings that it will be bombing the buildings. And that, of course, is precisely Sam Harris’s point.
** 3 **
As a writer, one of the most incredibly flattering things that can happen is when someone you really respect takes one of your ideas and runs with it. That’s what happened when Neo-Neocon read my post about John Kerry’s history repeating itself. I don’t want to give anything away. Just go and read what she has to say, making my original germ of an idea much richer and more meaningful.
** 4 **
What is that saying about the Left corrupting all institutions over time? I forget the exact words, but that’s precisely what happened to George H.W. Bush’s Thousand Points of Light charity. From being an innocuous charity, it’s managed to go from the ridiculous (funding gay and lesbian bands all over the world) to the malignant (funding organizations with Islamic terrorist ties).
That the Left would co-opt an organization in this way isn’t news. What is news is that Sen. Sam Nunn’s daughter, Michelle, was CEO during the charity’s transition from charitable to Leftist political. She’s now running for the Senate in Georgia (as a Democrat, natch). She’s trailing the Republican candidate, but the election would be safer if she were trailing even more — and this story should be the nail in her campaign’s coffin.
** 6 **
What unites Americans? Floods of illegal aliens crossing the United States’ southern border. They don’t like it. They really don’t like it.
Not that this will deter Obama. He views amnesty as a convenient red flag he can wave before Republicans in the hope that they will seek to impeach him, rousing Democrats from their demoralized torpor and swinging the 2014 election in Obama’s favor.
Think about this: Our president, who swore to obey the Constitution, is deliberately violating it, at great cost to our nation, so as to achieve two goals: (1) Creating a Democrat demographic wave by wiping out our southern border and (2) tempting Republicans into a politically fatal maneuver.
For Obama, it’s a win any way he looks at it, and for Republicans and other American loving people, all outcomes are disastrous. (And yes, executive orders can easily be overruled, but do you see anyone having the political will to deport all 5 million newly amnestied illegals, including the hundreds of thousands of recent arrivals?)
** 6 **
We entered into a 40-year-long war on poverty, and poverty won.
** 7 **
I cannot think of a more appalling attack on the integrity of a judicial system than a judge having an affair with the wife in a divorce case over which he is presiding. The husband, unsurprisingly, would like to see the judge in court, only this time with the judge sitting at the defendant’s table. Sadly, thanks to judicial immunity, that won’t be happening. Wade McCree, Jr., is out of a job, but he gets to keep his money.
Long-time readers know that, having come of age as a lawyer in the San Francisco Bay Area, where Leftist judges infest the bench, I have almost no respect for judges. In my career, I’ve probably come across three whom I respect, one of whom is a long-time friend I respected before she became a judge.
In a system governed by the rule of law, we definitely need judges. But we need a very specific type of judge: Someone who recognize the rule of law, not the rule of Leftist navel-gazing and self-indulgent emotional masturbation.
** 8 **
Yesterday, Sonia Sotomayor announced that she is absolutely horrified that the 14th Amendment can be used to prevent state government from engaging in race-based discrimination. Some may be a little confused by her argument, given that the 14th Amendment explicitly states that ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In ordinary parlance, that means that all laws must apply equally to all American citizens, regardless of anything that distinguishes one citizen from another (such as race, color, creed, sex, etc.).
For sensible people who believe that all humans are created equal, the 14th Amendment is a good rule. But it’s not good enough for Ms. Sotomayor (and yes, I mean “Ms.” because, really, after what she just did, it seems so wrong to give her the honorific “justice”). What did Sotomayor do? She abandoned legal reasoning in favor of ill-informed, racist navel-gazing, and she used the most august court in the land for her platform in feminist, racist idiocy. (I say “feminist” because, even though the case was about race, Ms. Sotomayor promised from the beginning that, rather than following the law, she’d offer ruminations from a “wise Latina.” So all her stuff is a “girl thing,” you know?)
Anyway, in Schuette v. Coalition to Defend Affirmative Action, Sonia (I’m so disgusted by her right now, I don’t even feel like using the generic honorific of “Ms”), wrote a 52 page pile of touchy feely goop about the fact that minorities are inferior beings. Moreover, she felt so strongly about innate minority inadequacies that she felt compelled to read all 52 pages from the bench — clearly, part of the punishment she wished to impose on dead, or still living, evil white males the world over.
I’m not trying to be mean, or anything, but the woman is a walking, talking argument against affirmative action, which advances women, minorities, and other non-white, non-straight, non-Asian, non-Jewish people simply because they weren’t born white, straight, Asian, or Jewish. Here’s the heart of Sonia’s insanely racist (and non-legal, non-factual, highly navel-based) rant. Sonia starts by attacking the US’s bad history:
For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its course.
She’s right, of course. Italians, Irish, Germans, Jews, Russians, Chinese, Japanese, East Asian, etc., all faced horrific discrimination. Peculiarly enough, once the discrimination ended as to these disparate groups, all were able, without any further effort on the government’s part, to ascend to the halls of wealth and power. Sonny’s problem (yeah, I’m at the point where even calling her by the pretty name “Sonia” irks me) is that she firmly believes that what worked for every other minority — just to be left alone — won’t work for blacks and Hispanics.
Before Sonny gets to her conclusion that blacks and Hispanics are inherent deficient (her thoughts, not mine), she takes us on an endlessly boring journey of efforts to discriminate which have all been done away with. Even as she tries to paint America as racially evil, she inadvertently keeps pointing to its self-correct mechanisms.
I sort of fell asleep somewhere when reading her tripe, but when I awoke, I found her claiming that there’s nothing in the 14th amendment that prohibits discriminating on the basis of race, because America’s educational institutions are improved by racial discrimination. No, really. That’s what she said:
Rather, race-sensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities.
The above stunning quotation is followed by a lot more soporific stuff. Considering how plagued I am by insomnia, I really should have a copy of Sonny’s dissent by my bedside. It makes for exhausting reading. The only downside, of course, would be the inevitable nightmares flowing from her racially carved up universe.
So, anyway…. Blah, blah, blah. And then this, the moment at which she states that the only way to make effective the 14th Amendments constitutional guarantee not to discriminate is to . . . wait for it . . . discriminate:
That view [that the 14th amendment means that the law applies equally to everybody] drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why?
Did she just end that deconstructionist, magical thinking rant by asking “Why?” Well, I’ve got the answer, so you can ignore Sonny’s new-Age, victim-based, PC bibble-babble version of an answer. The obvious reason Sonny believes that the government must discriminate, world without end, on behalf of blacks and Hispanics is that, in her mind, these two racial groups are congenitally incapable of partaking in the political process without Mommy and Daddy government holding their hands. Unlike all other minorities who pulled themselves up by their own bootstraps, her posse can’t do it. And if that isn’t the most vile racism you ever heard — a Supreme Court justice saying that blacks and Hispanics are defective and will always need government help just to get back — I don’t know what is.
I’m now bored with Sonny. Sonny is pathetically burdened by an unpleasant reality: she got into college and law school and government work and the Supreme Court thanks to affirmative action. She had neither the brains nor the self-discipline to make it on her own (unlike the legions of Jews, Italians, Irish, Asian, and East Asian immigrant kids who looked at their often squalid surroundings and made the decision to be the best and, without either government discrimination or aid, rose to the heights. This painful knowledge goes some way to explaining her embarrassingly self-referential opinion. She knows that she’s inadequate and, rather than admitting to her own mental infirmities, makes herself feel better by telling the American people that all blacks and Hispanics are just as mentally deficient as she is.
Let me say this again: for every other group in America that suffered government sponsored discrimination, after the government stopped discriminating (either against or for them) that group was able to achieve social, economic, and political success within one generation. Sonny is too scared to give blacks and Hispanics that same chance. In order to justify in her own eyes the unfair advantage she got at every stage in her career, she wants to ensure that no black or Hispanic ever has to compete on a level playing field.
Part of Sonny’s decision is her racism, a disdain for blacks and Hispanics that would fit comfortably on a KKK Imperial Wizard’s lips. And the other part of it is her fear that, if they succeed, she’ll have to acknowledge the failure that lies under all the undeserved accolades and professional advancements that came her way.
I went to a lunch today where the speaker was Clark M. Neily, III, author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Neily is an attorney at the libertarian Institute for Justice, a public interest organization that focuses on Constitution-centric civil liberties cases. (I know that it sounds redundant to say “Constitution-centric civil liberties cases” but I use that phrase deliberately to distinguish it from the ACLU’s version of “civil liberties,” which is also known as the “We hate Christians” school of thought.) The subject of his talk was the poisonous effect of the “rational basis” analysis that the Supreme Court has mandated for cases involving government infringement on an individual’s right to work.
Neily is a great speaker. He speaks quickly, so you have to pay attention. Paying attention isn’t a problem, though, because Neily also speaks clearly, and everything he says is interesting, with enjoyable and appropriate dollops of humor thrown in at warp speed. This is a man with a very high verbal, analytical intelligence. Even as I was listening closely to what he said, a small part of my brain was running an IQ calculator. When he started speaking, I pegged him at about 145 on the IQ scale. By the time he was done, I’d moved him up to 175. After all, his is precisely the type of intelligence the IQ test measures.
Before I begin, it behooves me to tell you that I haven’t yet read Neily’s book. I was planning on looking for it in the library or getting it on Kindle (because, as I’ve probably mentioned more than once, I’m very cheap). By the time he was done speaking, though, I wanted a signed copy and shelled out $26 (!) just so that I could gloat about having it signed by the man himself. This disclaimer is to warn you that I’m not reviewing his book, which I assume is as interesting as the speech. The book’s Table of Contents also tells me that it covers a much broader range of topics than the speech did. Finally, since I haven’t done anything remotely related to Constitutional law in years, you’ll have to pardon (or perhaps be grateful for) the fact that this is not a lawyerly analysis.
The “rational basis” test is the Supreme Court-mandated test for “non-fundamental rights.” One of those non-fundamental rights (and this may come as a surprise to you) is the right to hold a job in the field of your choice or to sell a product of your choice. Non-fundamental rights, by definition, are less important than rights such as speech or freedom of worship. (And no, don’t get me started on Obamacare’s attack on faith.)
If you protest a state or federal law imposing such a great burden on your profession that you cannot run a viable business, or that imposes ridiculous impediments as a predicate to holding a certain type of job, the federal court judge hearing your case will ask the government to justify the law. Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination. Worse, it turns the judge into an active part of the government’s defense team. Or as Neily explains:
Unlike strict and intermediate scrutiny, it does not involve a search for truth but rather an exercise in creativity. Instead of trying to determine what the government is really up to, as they do in other cases, judges applying rational basis review are required to accept — and even help invent — purely imaginary explanations for the government’s actions. (p. 50.)
Here’s how this standard played out in a real case that is near and dear to Neily’s heart. Sandy Meadows was a Baton Rouge, Louisiana, widow with one marketable skill: she could arrange flowers. We’re not talking the fancy flower arrangements you see in the lobby of deluxe hotels. She put together the little posies at the local supermarket and was paid a livable salary to do so. Unfortunately for Meadows, the state of Louisiana requires that florists — with a florist defined as anybody who assembles more than two flowers and sells them — to have a license.
Meadows took the license test five times and failed it five times. Lest you think she was an ignoramus, she wasn’t. She didn’t have a problem with the 50 written questions. Her problem was with the practical exam. In Louisiana, anyone who wants to put together posies for profit must assemble four arrangements that are then judged, not by some bureaucrat (which would be bad enough), but by a panel of florists who are given a chance to size up potential competition. That’s where poor Meadows failed every time. She wasn’t alone. I believe Neily said that the floral panel passed only 37% of test-takers. Neily compared this to Louisiana’s State Bar pass rate, which is 61%. In other words, it’s easier to become a lawyer in Louisiana than to become the gal who puts together bouquets at the local Piggly Wiggly.
Neily, on behalf of the Institute of Justice, took on Meadows’ case . . . and lost. He lost because the “rational basis” test meant that the government could come up with any nonsense it wanted to justify a monopolistic licensing requirement and, when the judge wasn’t convinced by the government’s arguments, he was able to come up with his own, even sillier, reason for having the state put its giant thumb firmly on the scale on the side of florists.
As Neily explained it, the judge rejected the government’s argument that a poorly-tied bouquet might fall apart in a bride’s hands, spilling flowers at her feet, and causing her to trip and injure herself at her own wedding. Apparently that was too silly even for the judge to contemplate. Instead, the judge had his own theory, and that won the day: the florist license was necessary to protect against “contaminated soil.” The judge was unmoved by the fact that nothing in the requirements for becoming a florist, or in the written exam, made mention of contaminated soil. The mere possibility that contaminated soil existed in the judge’s mind meant that it could have existed in the legislature’s mind when it passed the law, and there you had it — a rational basis for destroying a person’s livelihood.
Meadows, incidentally, died in abysmal poverty thanks to the fact that the state of Louisiana, with the complicity of the federal judiciary, stole her livelihood.
Louisiana, of course, isn’t the only place where states play favorites when it comes to the right to work. As I drove back from the lunch, I called my sister, an Oregon resident. She loves living in Oregon, but complains frequently about the fact that it is so heavily regulated one practically needs a license to sneeze. In exchange for the story about poor Meadows, my sister told me that, in Oregon, you need a license to “serve” alcohol. By this she did not mean that you need a license to work as a bartender or that a business establishment needs a license if it wants to sell alcohol to the public. What my sister meant is that, if you’re the waiter who brings the wine from the kitchen to the diners’ table or the martini from the bar to that same table, you need a license to do so. God alone knows what the “rational basis” for that is, but I can readily tell you the practical basis: alcohol is often the most expensive part of a meal, so the server who brings it to the table gets the biggest tips.
There is nothing whatsoever in the Constitution that gives a limited government the right to put irrational hurdles in the way of people’s right to a job. The irrational hurdles come about because certain professions get the bright idea that they can lower competition (and increase profit) if they convince the government to mandate a license as a prerequisite for doing the work they do. Black women braiding hair in Washington, D.C.? They better stop braiding unless they get an expensive education, and apply for an expensive license, thereby assuring those getting their hair braided that the woman knows how to do dye jobs too. Incidentally, don’t kid yourself that the politicians who pass this legislation do so because they have a principled belief that, if they don’t, the Apocalypse will be minutes away. They do it because they’re paid to do it in the form of campaign donations. There’s nothing wrong with this . . . provided that the judges do their job.
So where do the judges stand in all this? In theory, the judges should be a bulwark against this type of unconstitutional activity — except that they’re not. Instead, they bend over backwards to keep the laws on the books. Part of the problem is that they feel constrained by the Supreme Court’s “rational basis test.” Neily pointed out, though, that at least two appellate court panels have basically said that “rational” must have one foot grounded in reality. If the government’s lawyers can come up only with manifestly ridiculous theories involving Martians and tripping brides, these courts indicated that they were not required to lend a hand.
The bigger problem with the judges, which is one that George Will addresses in a column published just today about Neily’s book, is that too many judges are willing to give too much deference to state legislators. The judiciary, after all, is the only branch of government given the task of protecting the Constitution. Legislators aren’t too concerned with the constitution. They’re concerned with passing laws, especially those that they’re paid to pass. The judges, whether because they’re passive, or Leftists, or unthinking, or wrongheaded, are abandoning their constitutional responsibilities.
Incidentally, you should ignore the column title at the Washington Post, which suggests that courts should engage in judicial activism, a concept that is anathema to conservatives and libertarians. Judges are not activists when they follow the Constitution. They are activists only when the ignore or re-write it. The column title was a WaPo addition, that has nothing to do with Will’s or Neily’s argument that judges need to step up and protect the Constitution — and, by doing so, to protect individual liberty against government overreach.
I’ve long thought that government-created monopolies are bad things. I’ve had a lot of time to think about this, too, since I’ve been a member of California’s State Bar for more than 30 years, a “privilege” that costs me several hundred dollars a year, much of which is used to promote political causes that I deeply dislike.
My main grumble with the Bar, though, has always been the requirement that we have to take 25 hours of “minimum continuing legal education” classes every three years in order to keep our jobs. One could argue that this isn’t such an onerous requirement. Thanks to the internet, I was able to get all 25 hours done for $49. In the beginning, though, back in the mid-1980s, it was a very expensive proposition. Big firms could circumvent the cost by having a senior lawyer “teach” a room full of assembled junior lawyers.
Sole practitioners, however, weren’t so lucky. They had to go out hunting for classes, and those classes were costly, ranging from $50 to $200 per hour. Oh, and back in the day, you needed 12 hours a year. As far as I could see, the only benefit flowed to the MCLE providers, who had a captive audience mandated to buy their goods. (Hmmm, sounds like Obamacare, doesn’t it?) Once I figured out that MCLE was a scam, I began to realize that the State Bar was a scam too — and an unconscionable monopoly as well.
If it were up to me, membership in the State Bar would be voluntary. It would be something that the “better” class of attorney could boast about, just a they could boast about the myriad expensive classes they took in their specialty. Bar membership would be a marketing advantage, rather than a monopoly. In the old days, pre-internet, one could argue that the State Bar was the only reliable purveyor of necessary information about whether a person was qualified to be a lawyer, but that’s bunk nowadays. I imagine that, were the bar to disband today, tomorrow there would be dozens of websites offering consumers information about lawyers and law firms.
At the end of the talk, I asked Neily how he expected any turnaround to happen in the courts. After all, the Supreme Court itself is the author of the instruction that judges use the “rational basis” standard, complete with creative writing, in their approach to state-mandated monopolies. Moreover, especially since Harry Reid destroyed the filibuster specifically to pack the federal courts, we can expect that there will be more judges on the bench, rather than fewer, who will always give obeisance to Big Government.
In answer, Neily said two things: First, he thinks that the American people can only be pushed so far towards big government, before they push back in sufficient numbers to force a change in politics that will eventually be reflected in the courts. He doesn’t see this happening instantly, but rather posits a 30 or 40 year trend toward more respect for the Constitution and individual liberty. Let me just say, “From his lips, to God’s ear.” Second, he told me that he discusses in his book some practical ideas for speeding the trend towards liberty, and you can be assured that I’ll check those ideas out.
All in all, although Neily kept his speech brief, it was sufficiently packed with interesting ideas and information to sustain a long telephone call with my sister, and an even longer blog post for all of you. I look forward to reading Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, and getting even more information about the way America’s federal courts have abdicated their role as the Constitution’s guardians.
Mitch McConnell is too often a GOP stalwart (as opposed to a conservative) for my taste, but when he’s good, he’s very, very good. He was very, very good this morning, as he attacked Harry Reid’s attempt to change Senate rules so that only 51 votes are needed to get judges onto federal benches (except for the Supreme Court):
Even though Harry Reid’s nuclear option is a red herring meant to distract from Obamacare’s many and varied failings, it’s still an enormously consequential thing. I know all about ideologically packed courts, having practiced in the Bay Area for my entire legal career, and I can tell you that blind justice is never seen in those halls.
As with everything else the Left touches, law is not about applying settled, reliable principles to known facts. Instead, on the civil side, it becomes purely redistributive. I cannot tell you the number of cases I’ve handled that saw the judge rule against my corporate client, even while admitting that my client had the better legal case. Nor can I count how many times judges have engaged in obscene intellectual contortions to ensure a redistributive outcome. I’ve even worked on a few cases in which appellate court justices have out-and-out lied about the facts in order to achieve a specific end — and then they’ve published those cases, making them case precedent in California.
A court that owes its fealty to a political ideology, rather than to applying settled law to undisputed facts, is an inherently corrupt institution. That corruption spreads far beyond the parties standing in the courtroom. Take just one example: I worked on a case where a woman defaulted on loan. The bank sued. The woman’s defense was that she hadn’t read the loan documents. Settled law going back to forever says that the failure to read documents is not a defense to a default. The far Left judge felt differently. On the one hand, he had a mean bank; on the other hand, he had a poor little old lady. You can guess the outcome. You can also guess that, in future, the bank increased the cost of loans to offset bad debts such as this one. You can also bet that the little old lady went home and let her community know that defaulting on a loan in San Francisco county was a reasonably safe thing to do.
The problems with an ideologically corrupt judiciary don’t flow solely from the lessons people take away as they walk out of the courtroom, even though such lessons resonate throughout the community and affect future behavior. There’s an even more insidious problem with a system in which the judge’s pick winners and losers based, not upon facts or law, but upon their place in their hierarchy of Leftist victim-hood. It’s also the fact that the law is utterly unpredictable if the outcome is dictated by each judge’s personal redistributive biases. Businesses cannot operate in a system that isn’t predictable. They go one of two ways: they become as corrupt as the courts, since lawlessness is contagious; or they retrench, taking their services, products, and investments out of a market that is too unreliable for them to risk.
I haven’t had the heart or the stomach to read the Supreme Court decisions that came out today. (It’s not about content. It’s about the fact that, with rare exceptions, I find most Supreme Court decisions too horribly written and turgid to read.) I therefore didn’t discover this gem from Justice Alito in the DOMA case Instead, I’m passing it on to you from Paul Mirengoff at PowerLine, including the emphasis Mirengoff added:
The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)(“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).
At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.
And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” [citations omitted] Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously. (Emphasis added)
I really don’t have much to say about the DOMA decision. I think it’s another Roe v. Wade in terms of creating rights that never existed. The difference, though, is that the Supreme Court waited to make the decision until the tide had turned at the popular support level, with more and more Americans supporting gay marriage.
As for the Prop. 8 decision, I agree with a Facebook friend of mine who wrote: “SCOTUS has made its ruling on Prop 8 today. No matter which side of the issue one comes down on, it should be frightening to all of us that an Attorney General of ANY STATE can simply choose not to defend ANY LAW and *POOF* the law will be overturned.” There lies the way to tyranny, when the people no longer have standing on their own behalf.
Lastly, Kennedy has altogether too much power. I never get the feeling that the guy has any fixed legal or constitutional principles. At least the guys (and gals) on the Left are Lefties and the guys on the right are Righties (except for Chief Justice Roberts, who I think was blackmailed on ObamaCare). Kennedy is a “whatever.” When I was in law school, there was a saying that “the law is what the judge had for breakfast.” With Kennedy, it’s also what he had for lunch, dinner, and his little midnight snack.
Please chime in here with your feelings on the subject.