EVENTS

Date:	Wednesday, June 29, 2005
Time:	3:15 PM -- 5:15 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

June 2005

Fifth Annual Supreme Court Review

Once again, as another Supreme Court term came to an end, AEI’s Federalism Project assembled a panel of distinguished experts to examine the fallout. Does the United States Constitution still have a Commerce Clause? A Takings Clause? Have we witnessed the emergence of the Stevens Court, and what is it up to? These questions and more were discussed on June 29, at AEI’s fifth annual Supreme Court review.

Michael S. Greve
AEI

Clarity of purpose was not the hallmark of this term. Perhaps the reason for this has less to do with the nature of this particular set of justices and more to do with the institutional role of all courts, especially the Supreme Court, in the wake of the New Deal. Before the federal government expansion under the New Deal, the structure of competing state and federal government offered citizens the protection that post-New Deal rights now offer. However, rights protections are not a precise substitute for structural protections, and this has several consequences for the courts. First, the courts become the only bulwark against otherwise omnipotent government. Second, the Supreme Court will appear constituency-oriented. Rights have constituencies, whereas structural protections do not. Third, the Court will then have to respond to the fluid political environment. It will not appear impartial or principled, but simply heavy-handed or erratic.

Robert Nagel
University of Colorado Law School

The majority and dissenting opinions from some of the major cases of this term exhibit a consistent type of difference between them. The differences all center on “judicial sovereignty,” that is, the tendency for the Court to use its own interpretation of the Constitution as jurisprudential basis above any other interpretation and even above the Constitution itself.

In these cases, the majority opinions cite case precedent, while the dissenters cite the Constitution and constitutional amendments. The majority persistently interprets the document as if it were the same as and indistinguishable from prior Court opinions. The dissenters struggle to establish authority outside of the Court’s opinions.

If, as the majority seems to believe, constitutional interpretation is not about a Constitution external to judicial decisions, no other branch or level of government can have an opinion relevant to constitutional meaning.

Furthermore, as the Court becomes increasingly self-referential, its moral authority weakens. The Court separates itself from the authority of the Constitution and from public understanding.

Jonathan H. Adler
Case Western Law School

I am not entirely convinced of the death of this federalism revolution. There is a tendency to over-read the importance of new decisions. The implication of these decisions will not be known for quite some time.

Still, a continuation of this Court’s federalism will be difficult. The bloc of justices who comprise the majority in decisions favorable for federalism is inherently unstable because these five do not share a consistent view in terms of why these cases are important.

Gonzales v. Raich raised another difficult question regarding challenges to federal statutes: must these be approached facially or can they be approached on an as-applied basis? Facial challenges are easier to bring against narrow, symbolic legislation (see U.S. v. Morrison and U.S. v. Lopez) than against large regulation like the Controlled Substances Act or the Endangered Species Act. Unless the Court were to strike down whole sections of the U.S. Code, an as applied challenge is required. As with Raich, there has never been a successful as-applied challenge to the Commerce Clause.

A clear distinction between economic and social federalism has emerged in the Court’s opinions. The Court consistently allows states leeway in economic and property matters (see Bates v. Dow Agrosciences LLC and Kelo v. New London), but upholds a single national rule in moral and social issues (see Roper v. Simmons, McCreary Co. v. ACLU, and Van Orden v. Perry). This division is unstable, in large part because regional differences and personal views about moral issues are far more intensely held than about economic issues.

Nina Totenberg
National Public Radio

There is the distinction in modern jurisprudence between individual rights and property rights. Property rights have been viewed in the context of just compensation, rather than public use requirements. Government may take property, but government must pay when it does. Kelo still leaves room for property rights advocates to bring fact-specific cases in order to flush out the vagaries of property rights law.

The Ten Commandments cases (Van Orden and McCreary) may not be a controversial in the long term. Fifteen or twenty years ago, a large number of crèche cases came before the Court. In Lynch v. Donnelly and Allegheny Co. v. ACLU, the Court adopted the “plastic reindeer test.” Since then, most of these cases have been decided by lower courts without too much huzzah. Something similar may happen with these Ten Commandments cases. I add the caveat that we are in more volatile times than we were twenty years ago, especially in terms of religion cases.

Overall, the Court’s federalism suffers, I think, from the post-9/11 political atmosphere. September 11 can be used as a tool for large central government and federal preemption more than as a tool for states’ rights.

Personality affects the Court a great deal. The members of this Court have been together for so long that they are used to each other’s idiosyncrasies. Any change in the membership of the Court will have much greater effects than simply the ideological make-up of the Court. For instance, Justice John Paul Stevens sent a complimentary memo to Justices Sandra Day O’Connor, Anthony M. Kennedy, and David H. Souter when they circulated their “core of Roe” opinion in Casey v. Planned Parenthood. Because of his memo, Stevens secured a majority for the opinion. He is very influential behind the scenes.

Michael Greve

This has certainly been a big term for Justice Stevens. On the other hand, it was a terrible term for Justice O’Connor.

Neil Siegel
Duke Law School

Justice Stevens wields a lot of power on this Court, but Chief Justice William H. Rehnquist also wields a great deal of power in terms of the way he runs the Court. If he retires, it will affect the Court greatly.

During this term, the “conservative majority” of Justices O’Connor, Antonin Scalia, Clarence Thomas, Rehnquist, and Kennedy voted together in five-to-four decisions fewer times than in previous terms. The group does not cohere as well as it once did.

Professor Nagel discussed various methods of constitutional interpretation. I would like to pursue that discussion. Oftentimes, a justice will switch between methods of interpretation without any sort of explanation. For instance, Justice Scalia will sometimes argue from an original meaning standpoint, but in Raich, he signed a majority opinion based on Supreme Court precedent rather than original meaning. I do not believe that one mode of interpretation has to be ruthlessly consistent, but I wish that justices would be more theoretically self-conscious when they choose various methods. Scholars discuss the constitutional interpretation, but I do not believe much progress is made in terms of understanding why certain justices embrace certain doctrines in one case or another.

I do not believe there was a “Federalism Revolution,” or that such a revolution has now ended. The Court’s decisions in Lopez and Morrison, for instance, took the federalism line because these pertinent statutes were not part of a larger regulation of economic activity. The Court has repeatedly upheld federal commerce power when it comes to larger economic regulation, not only in Raich, but also in the numerous cert petitions regarding firearms filed “in light of” Lopez and Morrison. These petitions are denied quickly; the Court has no interest in revisiting federal power over guns and drugs.

The 2005-2006 term will see cases dealing with state sovereign immunity, particularly a clarification of the Court’s stance on sovereign immunity and the bankruptcy clause.

Michael Greve

Justice Stevens’s concurring opinion in Roper v. Simmons stresses a jurisprudence of democratic aspirations and of the “living constitution.” It is reminiscent of the debates between Ed Meese and Justice William Brennan. Has Justice Stevens changed since he was appointed? If so, what has caused the change?

Robert Nagel

Justice Stevens, like others, has different methodologies for different cases. His default position treats constitutional law as nothing more than an ad hoc balance that the Court makes in each case; the Constitution is what the court decides in any particular circumstance.

Jonathan Adler

Justice Stevens has been consistent over his thirty years with regard to federal power and state power. Cases that would signal that sort of evolution do not come to mind.

Turning to the influence of 9/11, I find a compelling argument that the federal government needs more power and vigor to deal with threats. But that also offers a compelling argument that, post-9/11, the federal government cannot afford to engage in the frivolous exercise of authority to address things that the federal government really does not need to handle. The federal government needs to worry about borders and terrorism; it does not need to worry about the optimal liability system for gender-motivated violence in Virginia. The more resources and attention the federal government expends on other matters, the less it will have for issues requiring federal action.

That may be a policy argument, but the fact of a countervailing policy argument suggests that the Court should not operate any differently post 9/11.

Nina Totenberg

Returning to Justice Stevens, I would say that no one remains the same for thirty years. Still, I think that he has not changed as much as it seems since he was appointed. The center of the Court has moved to the right, and Stevens now appears more to the left than he did previously.

Neil Siegel

I think structure versus rights captures the change in the Court and Stevens. He has been fairly consistent on federal power but has moved significantly to the left on race and gender issues. I believe he sees himself as balancing a Court that has moved to the right for the most part.

One could maintain the argument that he is the least inclined to be constrained, but I do not think it is fair to say that in Justice Stevens’s view, the law is whatever he wants it to be.

Michael Greve

I would like to ask a question of the panel regarding the Establishment Clause and the Fourteenth Amendment. Can originalism support both the Establishment Clause understood as allowing the states to endorse religion and also full incorporation, which would integrate the First Amendment against the states? If the Establishment Clause incorporates against the states, perhaps Justice Stevens’s neutrality is correct, and the federal government must involve itself in interior decorating.

Jonathan Adler

The “Congress shall make no law” language interrupts the incorporation argument. It is hard to see how, as a matter of constitutional interpretation, Establishment can be incorporated in just the same way as other provisions in the Bill of Rights. Even if it is incorporated, that would not necessarily mandate neutrality on the question of religion versus zero religion.

Neil Siegel

That interpretation underscores the inherent trouble of originalism; if the First Amendment is not incorporated, any state could violate First Amendment rights, including freedom of speech or the press. For at least eight of nine justices, the First Amendment in 2005 protects these rights uncontroversially--this might be what Scalia means when he says that originalism may be too bitter a pill to swallow.

Robert Nagel

Kelo raises another question about federal versus state or local control. It seems unfortunate that the majority opinion suggested that courts can find a public use standard, but that this particular use did not break that standard. If the opinion had stated that courts cannot enforce public use restrictions, then local or state political institutions might have been more encouraged to develop their own understanding of the issue and laws governing public use restrictions.

Michael Greve

There is another way to look at Takings cases. There is too much emphasis being placed on public use and not enough on the valuation problem. “Just compensation” should require the government to pay the full price--not simply the dollar cost--but the full social cost to the owner. Many eminent domain cases would not arise in the first place if the government paid the full just compensation.

Now, to conclude, where does federalism stand and what was the Rehnquist Court’s federalism revolution?

Robert Nagel

There was always a deep tension between the Court’s regard for decentralization and a very powerful distrust of power exercised at state and local level. Generally, they felt antipathy to heterogeneity and moral conflict. Those concerns outweighed their interest in federalism.

Neil Siegel

As I said, I do not believe that there was a revolution, except in the minds of pundits, advocates, and the media. This was a modest attempt to persuade Congress to think twice before it passes a useless federal law, like the Gun-Free School Zones Act, when a state law covers the problem quite well already.

This summary was compiled by Will Wilson based on a transcript of the conference.