From the New Republic: Inside the Libertarian Movement to Take Over the Legal System

We look at Libertarianism in GOVT 2305 along with many of the other "isms" along the left right political continuum. Here's a definition: "a political philosophy that upholds liberty as its principal objective. Libertarians seek to maximize autonomy and freedom of choice, emphasizing political freedom, voluntary association and the primacy of individual judgment."

Sounds fine, but the movement is opposed to many of the policies put in place to protect workers: the 40 hour work week, overtime pay, child labor laws and the like. Freedom of the business owner takes precedence over governmental laws meant to protect workers. Capital trumps labor.

Here's an argument that a handful of libertarian legal scholars are working to undo the legal rationale that underlies the New Deal. This includes revisiting a controversial case from  1905 Lochner v New York. I'll post something that separately, but this article tells us a few things about how change on the Supreme Court can be accomplished.

It focuses primarily on one of the leading figures of this movement, Randy Barnett, and his efforts to redefine conservatism on the court from being restrained to activist.

- Click here for it.

Eventually, Barnett clawed his way to Boston University, and then to Georgetown, where he joined the faculty in 2006. (“I love the situation here,” he said of his current digs. “I don’t need to be on the outs.”) But even as his career took off, his legal views remained decidedly anti-establishment. Barnett believes the Constitution exists to secure inalienable property and contract rights for individuals. This may sound like a bland and inconsequential opinion, but if widely adopted by our courts and political systems it would prohibit or call into question basic governmental protections—minimum wages, food-safety regulations, child-labor laws—that most of us take for granted. For nearly a century now, a legal counterculture has insisted that the whole New Deal project was a big, unconstitutional error, and Barnett is a big part of that movement today.

The Constitution in Exile Movement

Jeffrey Rosen of the New Republic thinks that a recent opinion written by Janice Rogers Brown indicates that the Constitution in Exile Movement - the group of conservative legal scholars and judges who are intent on rolling back New Deal policies - is about to make waves and take a more active role in making decision on economic regulation.

He predicts that we will soon be seeing more conservative judicial activism. I strongly suggest a read.

A Second Federal Judge Finds the Health Care Law Unconstitutional

- Story in the NYT.
- A summary of opinions from the Atlantic Wire.
- Thumbs up from the WSJ.
- Clive Crook: Health Care and the Constitution.
- Garrett Epps: The Vinson Ruling and the Strange Nature of Judicial Review.

Scorpions

Another extra credit option. A book detailing the personalities FDR placed on the court. A review from Slate.

Jay Bybee and the Takings Clause

Slate has a critical piece on 9th Curcuit Judge Jay Bybee's decision in Guggenheim v. City of Goleta which argues that he's engaged in conservative judicial activism by injecting his own view of the Constitution's Takings Clause and ignoring precedent. The decision concerns whether any level of government can, constitutionally, impose rent controls on property, or whether doing so amounts to a "takings."

There appears to be a healthy debate in legal circles about just what the Constitution's authors meant when they wrote that private property could not be taken for public use without just compensation.

Here's an interview on the subject with Richard Epstein.

One of the issues involved is whether a "regulatory taking" is effectively the same thing as an actual seizure of property.

Some background:

- A Brief History of the Takings Clause.
- The Takings of Private Property.
- The Takings Clause, From the Heritage Foundation.
- Eminent Domain, From Findlaw.

How to Analyze the Future Direction of the Supreme Court

This article by Tom Goldstein not only provides a terrific overview of what a Stevens less Supreme Court would look like, but more importantly for us, uses a precise methodology for dissecting how the Supreme Court approaches constitutional questions.

It breaks the future down into sections involving:

1 - The articles of the Constitution
2 - Cases involving the Bill of Rights
3 - Non-Constitutional Cases

Each is further divided into those issues that are most topical today. I'll try incorporating this into future lectures, but this is the best thing I've read in some time that details the specific constitutional conflicts at issue today, and how they are likely to shift -- or not -- in the near future.

Louis Brandeis

The quote in the post below (about sunlight being a disinfectant for politics) is credited to Louis Brandeis. Ive been remiss in not discussing him further when we cover developments in First Amendment freedoms. I'll correct this this summer. My upcoming students should anticipate an assignment of some sort about him and the influence the Supreme Court has on our evolving understandings of what Constitutional freedoms mean at any given moment.

- Other People's Money.

Obama Criticizes Liberal Judicial Activism

From the NYT:

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Mr. Obama said.

“And in the ’60s and ’70s, the feeling was — is that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”

He added, “The concept of judicial restraint cuts both ways.”

We Are All Activists Now

Barry Friedman and Jeffrey Rosen argue that both the left and right have grown accustomed to the use of an activist court to achieve their political aims.

More Populist Rage?

This time focused on the Supreme Court and the Citizens United decision?

Conservative Judicial Activism

An immediate consequence of yesterday's Citizens United decision is the accusation that conservatives are now the activists on the court. Stuart Taylor writes:

For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution's language and established meaning.On Thursday, the five more conservative justices -- and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they've said before -- forfeited whatever high ground they once held in the judicial activism debate.

Also from the National Journal, analysis of the political ramifications of the decision. Will it benefit business interests and the GOP?

- What Now For Reformers?
- GOP, Chamber Are Big Winners
- Will Corporations Rush In?
- EXPERT BLOG: In The Long Run

Corporate Spending Limits Overturned

This is huge.

The Supreme Court narrowly (5-4) overturned a centuries old ban limiting spending by corporations, which presumably now have the same status as persons. Everyone expects money to flood into the political system now.

Here's text and links from from ScotusBlog: The Citizens United opinion is linkedhere. The judgment of the D.C. Circuit is reversed, in an opinion of the Court written by Justice Kennedy. Justice Stevens filed a partial dissent, which was read from the bench, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas dissents in part and concurs in part.

I'm interested in whether there is any fall out from this. I also assume that this means the 5 person conservative majority sees no reason to restrain itself from overturning aggressively any law, no matter how old, which they disagree with.

What's a Liberal Justice Now?

A useful read for my 2302's from Jeffrey Rosen in the NYT.

When talking about the Supreme Court, Barack Obama has resisted the familiar ideological categories that have defined our judicial battles for the past several decades. He has made clear that despite his progressive inclinations, he is not a 1960s-style, Warren Court liberal — someone who believes that the justices should boldly define constitutional rights in an effort to bring about social change. It’s true that Obama has cited Chief Justice Earl Warren as a judicial ideal, emphasizing that Warren, a former governor of California, had a sensitive understanding of the real-world effects of Supreme Court decisions. But at the same time, Obama has suggested that liberals in the Warren Court mold may have placed too much trust in the courts and not enough in political activism.

....

The First Amendment v. Campaign Regulations

The Supreme Court has been veering towards eliminating most restrictions on campaign finance. This illustrates a variety of subjects we've covered in both 2301 and 2302.

From the National Journal:

For years, First Amendment champions have argued that all campaign finance rules tread on free speech and that American elections should be completely deregulated.

It's a sweeping premise that Congress has long rejected in favor of ever-tighter political money limits. But thanks to a sharp right turn in the judiciary, from the Supreme Court on down, those who favor a world without rules may be about to get their wish.

The Supreme Court appears poised to reverse a century-old ban on direct campaign expenditures by corporations large and small. A federal appeals court has rejected Federal Election Commission rules that restrict spending by non-party political groups, such as so-called 527 organizations -- a move that the FEC is prepared to let stand. And two other cases challenging the existing limits on soft (unregulated) money and on independent campaign expenditures are wending their way up to the Supreme Court . . .

Relevant topics include:

- Checks and Balances - the Supreme Court seems set to over turn legislation dating back 100 years (The Tillman Act of 1970)
- Civil Liberties - how do we define free speech? do corporations have free speech rights?
- Interest group influence on the democratic process - can democracy survive a public sector dominated by corporate interests
- Judicial Activism - is the Supreme Court acting within its proper boundaries or is it aggressively imposing its view of proper public policy on the other institutions.

David Souter on the Constitution

If you have hour to kill, here's a great interview with the ex-Supreme Court Justice.

Ricci v. DeStefano and Sotomayor

Ricci v. DeStefano is the official name of the New Haven firefighters case which some have used to determine Sotomayor's views on affirmative action.

Here are few sites where you can get accurate info on the case:

- ScotusWiki - the docket.
- The oral argument before the Supreme Court.
- Scotus Blog - argument preview.
- Scotus Blog - argument recap.
- Background from the CSM.
- A WSJ story with links to audio from the appellate case.

Sotomayor, as an appellate court judge, voted to uphold the trial court's decision. Opponents have used this to brand her a judicial activist. Supporters argue that the decision was narrowly tailored to comply with the law, and so was an example of judicial restraint. Pick your poison.

Section 5 of the Voting Rights Act is Challenged in the Supreme Court

Since the 1960s, any redistricting or voting practices in states that had a history of racial segregation has had to be precleared by a panel of federal judges. This includes Texas.

This practice has been challenged, and was argued yesterday before the Supreme Court. It provides another opportunity for the Supreme Court, which has suddenly become the bastion of conservatism at the federal level, to make a significant shift in public policy.

The question for the court seems to be, given recent successes of black candidates for office, whether the law is still necessary. Institutional racism may be a thing of the past. But perhaps electoral success is a sign that the law is working, and if overturned prematurely, current successes might be rolled back.

Given that the law was reauthorized very recently by a large margin in Congress, this also raises questions about whether the judiciary should defer to Congress in this manner, or actively overturn its laws.

The case is Northwest Austin Municipal Utility District No. 1 v. Holder.

Listen to the oral argument here.

Tort Reform and Judicial Activism in Texas

Tort reform is once again in the news in Texas thanks to Entergy v. Summers, a case where a Texas appellate court ruled that a worker injured in an accident in an electric generating plant, cannot sue that plant because he worked for a general contractor doing work on the site, not directly for the corporation which owned the plant.

If understand the ruling correctly, a majority on the Texas Supreme Court ruled that the plant was acting as its own contractor, so could not be sued for negligence by the injured employee. Some members of the legislature who were involved in drafting the law governing this decision argue that the court went beyond its jurisdiction in making its decision. From the Austin Chronicle:

Sen. Kirk Watson of Austin echoed that, saying, "The Court reached a result that the Legislature has rejected over and over again. The Legislature has avoided reducing and has, instead, worked to assure worker protections and also make sure employers keep a commitment to safety."

"Non-substantive re-codifications of statutes are a constitutionally mandated duty of the Legislature ... specifically meant to NOT change the intent of law," said Brownsville Sen. Eddie Lucio in a statement. "In the Entergy decision, the Texas Supreme Court has violated the separation of powers in this state using judicial activism to write law."

Since we're heading into a discussion of interest groups in 2301, tort reform is a perfect example of an issue which divides business and labor. On one side of the issue is the business backed Texans for Lawsuit Reform, and on the other the AFL-CIO. In 2302, we've touched on the problems posed by an elected judiciary. Critics argue that since all the current members of the Texas Supreme Court are Republicans supported by the business community, their judgements will be biased against the interests of labor. Supporters generally point out that the Texas Supreme Court was equally biased against business interests and in favor of lawsuit plaintiffs when they were all Democrats elected with the support of trial lawyers.

So to tie 2301 and 2302 together, does interest group involvement in judicial elections undermine judicial independence?

About Those Judges

Are they too powerful? Do they need to be taken down a notch or two?

Judicial Activism or Unalienable Right?

From the Huffington Post:

A Montana judge has ruled that doctor-assisted suicides are legal in the state, a decision likely to be appealed as the state argues that the Legislature, not the court, should decide whether terminally ill patients have the right to take their own life.

Judge Dorothy McCarter issued the ruling late Friday in the case of a Billings man with terminal cancer, who had sued the state with four physicians that treat terminally ill patients and a nonprofit patients' rights group.

"The Montana constitutional rights of individual privacy and human dignity, taken together, encompass the right of a competent terminally (ill) patient to die with dignity," McCarter said in the ruling.

It also said that those patients had the right to obtain self-administered medications to hasten death if they find their suffering to be unbearable, and that physicians can prescribe such medication without fear of prosecution.

"The patient's right to die with dignity includes protection of the patient's physician from liability under the state's homicide statutes," the judge wrote.

Attorney General Mike McGrath said Saturday that attorneys in his office would discuss the ruling next week and expected the state will appeal the ruling.

"It's a major constitutional issue and the Supreme Court should rule on it," said McGrath, who will be sworn in as chief justice of the Montana Supreme Court in January.

I want to put myself down on the side of those who believe that individual rights should not be subject to majority rule. This is what the courts are for and why judicial activism is perfectly justified when necessary.