George Will’s Embrace of Natural Law

Recently concepts of natural law have re-emerged as relevant to interpretations of the U.S. Constitution. George Will, the prominent political and legal commentator, has done so in at least three Washington Post columns and in a speech at the John C. Danforth Center for Religion and Politics. This post will discuss his views on this subject. A subsequent post will explore those of Judge Neil Gorsuch, the current nominee for Associate Justice of the U.S. Supreme Court, whose confirmation hearing starts tomorrow.

Background

Two important instruments of U.S. history are the U.S. Declaration of Independence and the Ninth Amendment to the Constitution. The Declaration states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness.” The Ninth Amendment, which is part of our Bill of Rights, states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[1]

Although I am a retired attorney, I have not attempted to make my own analysis of how the U.S. Supreme Court has interpreted the Ninth Amendment. Instead I rely on my recollection that the Declaration and this Amendment have not been major authorities in the U.S. Supreme Court’s decisions and Wikipedia’s conclusion that the Court has not used them to further limit government power.

Wikipedia also cites this statement by Justice Scalia in Troxel v. Granville, 530 U.S. 57 (2000): “The Declaration of Independence is not a legal prescription conferring powers upon the courts, and [the Ninth Amendment’s] . . . refusal to ‘deny or disparage’ other rights is far removed from affirming any of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

George Will’s Discussion of Natural Law

In a Washington Post column{2} Will argued that the Ninth Amendment’s protection of other rights “retained by the people” encompasses “natural law” rights, which are affirmed by these words of the Declaration of Independence:

  • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—that to secure these rights, Governments are instituted among Men, deriving their just powered front he consent of the governed.”

Therefore, Will argues, “the Founders’ philosophy is infused into . . . [the Constitution] by construing . . . [the Constitution] as a charter of government that is, in Lincoln’s formulation, dedicated to [the above proposition in that Declaration].” As a result, says Will, “The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the majority to make such laws as the majority desires. Natural rights are affirmed by the Declaration and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”

“With the Declaration, Americans . . . began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature.”

Will in this article does not go on to identify specific natural rights that are so encompassed by the Declaration. Presumably Will would not limit the protections of these words of the Declaration to those who were covered at the time of its proclamation in 1766: white men of property. In any event, his suggestion provides another “originalist” approach to interpreting the Constitution, an approach that is more open-ended than that promulgated by Justice Scalia.

George Will’s Speech at John C. Danforth Center for Religion and Politics

Additional light on George Will’s thoughts about natural law is shed by an adaption of his December 2012 speech at the John C. Danforth Center on Religion and Politics, University of Washington at St. Louis.[3]

He asserts that although he himself is non-religious, he believes that “religion has been, and can still be, supremely important and helpful to the flourishing of our democracy” and that “the idea of natural rights [does not] require a religious foundation, or even that the founders uniformly thought it did. It is, however, indubitably the case that natural rights are especially firmly grounded when they are grounded in religious doctrine.” Moreover, Will believes that the founders, who were not particularly religious themselves, “understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism’s emphasis on the individual’s direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.”

According to Will, the founders “understood that natural rights could not be asserted, celebrated, and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator. This is the Creator who endows us with natural rights that are inevitable, inalienable, and universal — and hence the foundation of democratic equality. And these rights are the foundation of limited government — government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.”

The U.S. Declaration of Independence asserts that “important political truths are not merely knowable, they are self-evident, meaning they can be known by any mind not clouded by ignorance or superstition. [As it states, “it is self-evidently true that ‘all men are created equal.’ Equal not only in their access to the important political truths, but also in being endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness.” [The Declaration goes on to state], ‘[T]o secure these rights, governments are instituted among men.’ Government’s primary purpose is to secure pre-existing rights. Government does not create rights; it does not dispense them.”

“Biblical religion is concerned with asserting and defending the dignity of the individual. Biblical religion teaches that individual dignity is linked to individual responsibility and moral agency. Therefore, Biblical religion should be wary of the consequences of government untethered from the limited (and limiting) purpose of securing natural rights.”

Will’s Obituary for Antonin Scalia

In the obituary Will praised the late Associate Justice Antonin Scalia for his championing the principles of judicial modesty: “textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.” Moreover, said Will, Scalia “was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.”[4]

In Will’s opinion, “Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.” Moreover, “as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that ‘governments are instituted among men.’”[5]

Will, however, does not attempt to reconcile his praise for Scalia with the Justice’s rejection of the Declaration as important for constitutional analysis.

Will’s Questions for Judge Gorsuch

In another Washington Post column, Will suggested questions to be asked Judge Gorsuch at his confirmation hearings.[6] Here are some of those questions:

  • Is popular sovereignty (majorities rights) or liberty the essence of the American project?
  • Was the purpose of the 14th Amendment’s “privilege and immunities” clause to place certain subjects beyond the reach of majorities?
  • Was the 14th Amendment’s “privilege and immunities” clause’s purpose to ensure that the natural rights of all citizens would be protected from abridgment by their states?
  • Was the Supreme Court wrong in the 1873 Slaughter-House Cases that essentially erased the privileges and immunities clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living)? If so, should it be overruled?
  • Do you agree with Chief Justice John G. Roberts Jr. who has said the doctrine ofstare decisis — previous court decisions are owed respect — is not an “inexorable command”?
  • Do you agree with the Supreme Court’s division of liberties between those deemed to be fundamental and thus subjecting any restrictions on them to strict scrutiny and all others whose restrictions are subjected only to “rational basis” scrutiny?
  • What, in your opinion, is the role of the Ninth Amendment in constitutional law?
  • Are there limits to Congress’ power over interstate commerce other than those enumerated in the Bill of Rights (the first 10 amendments to the Constitution)?
  • Was the Supreme Court correct in the 2005 Kelo v. City of New London case upholding a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes?
  • What limits, if any, are imposed upon Congress’ delegation of powers to administrative agencies by Article I of the Constitution’s provision: “All legislative powers herein granted shall be vested in a Congress”?
  • Was the Supreme Court correct in Citizens United that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?
  • Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
  • Would you feel bound to follow a previous Supreme Court decision that did not evaluate evidence of the original meaning of the Constitution and was, in your view, in conflict with it?

Conclusion

Although I do not generally agree with many of George Will’s political opinions, I think that the linkage of the Ninth Amendment and the Declaration of Independence makes sense and should be explored more fully in future constitutional litigation. However, it is not so easy to make the next step of identifying additional principles of natural law that could impose limits on the federal and state governments.

The Declaration’s statement that human beings are endowed by their Creator with certain inalienable rights is part of that difficulty. First the First Amendment to the Constitution bans the federal government’s establishment of a religion. Second, there are now so many different religions in the world and in the U.S. Although as a Christian I believe that at least all of the major world religions honor peace and hospitality and that they all agree on the Golden Rule: do unto others as you would have them do unto you, I find it difficult see how that leads to principles of natural law that are useful. For example, I find it difficult to see how this linkage leads to the conclusion that the Citizens United case was correctly decided, as Will suggests.

In addition, although I have not studied the underlying sources, I am intrigued by the notion that the privileges and immunities clause of the Fourteenth Amendment was intended to encompass all natural law rights of U.S. citizens and that the Slaughter-House Cases were wrongly decided.

In any event, we all should thank George Will for proposing interesting questions for Judge Gorsuch in his confirmation hearing. I am reasonably confident that most, if not all, of them will be asked and answered.

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[1] United States Declaration of Independence, Wikipedia;  Ninth Amendment to the United States Constitution, Wikipedia. A prior post discussed the First Congress’ adoption of the Bill of Rights after ratification by the requisite number of states.

[2] Will, Maybe Gorsuch will fill in blanks left by Scalia, Wash. Post (Feb. 1, 2017).

[3] Will, Religion and the American Republic, Nat’l Affairs (Summer 2013). John C. Danforth, an ordained Episcopal priest, was Attorney General of Missouri, 1969-1976, and U.S. Senator for that state, 1976-1995.

[4] Will, In Memoriam: Supreme Court Justice Antonin Scalia 1936-2016, Wash. Post (Feb. 14, 2016).

[5]  Timothy Sandefur  is Vice President for Litigation at the Goldwater Institute and Adjunct Scholar with the Cato Institute. He also is the author of The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2013),  which is a more extensive exposition of Will’s argument that the Declaration and the Ninth Amendment need to be important markers in constitutional analysis and litigation. Moreover, Sandefur argues that the privileges and immunities clause of the Fourteenth Amendment of 1868 recommitted the U.S. to the primacy of liberty and defined the terms of U.S. citizenship that unfortunately was demolished by the U.S. Supreme Court’s 1873 decision in the Slaughter-House Cases, 83 U.S. 36 (1873).

[6] Will, Questions for Judge Gorsuch, Wash. Post (Mar. 17, 2017).

Improving U.S. Voting Procedures

The New York Times has called the U.S. voting system “broken” and made a number of suggestions for improving the system.

First on its agenda is making it easier to vote.

Congress should establish a nonpartisan federal elections board “to maintain a national registration database, mandate the choice of voting machines and set standards for counting provisional ballots” Another desirable federal law would “require a clear early-voting period, removing the issue as a political football in states like Florida and Ohio, and standards for absentee voting.”

Yet another federal legislative proposal would “give grants to states that make registration easy, including allowing same-day registration; allow early voting; require no excuses for voting absentee; properly train poll workers; and provide sufficient polling places”.

States on their own could follow the lead of 17 states that already send electronic registration data from motor vehicle departments to election agencies, and of 10 states that allow people to register online.

Second on its agenda is removing barriers to voting.

In this year’s election Republicans in some states attempted to keep Democratic-leaning groups from voting, through methods like voter ID requirements. Republicans should abandon “this misguided and offensive effort.” Legislative action may be necessary to ban such measures.

Third on its agenda is diluting the power of money.

Ultimately this would require a constitutional amendment to countermand the U.S. Supreme Court’s Citizens United decision that the Constitution´s First Amendment Free Speech clause protects corporations’ monetary expenditures in political campaigns.

In the meantime legislation should be adopted to require disclosure of the corporate sources of such financial contributions and eliminate secret contributions. Another proposed law would offer federal money to match individuals´political contributions.

Conclusion

I concur in these recommendations as discussed in a prior posts about maximizing U.S. voting, the excesses of false allegations of voter fraud and the urgent need for reforming the election system.

The U.S. Constitution’s Interstate Commerce Clause After the Supreme Court’s Decision on the Affordable Care Act

U.S. Supreme Court Justices, 2012

As has been widely reported, the U.S. Supreme Court on June 28, 2012, decided, 5-4, that the Affordable Care Act (ACA) was constitutional under Congress’ constitutional power in Article I, Section 8(1) to “lay and collect taxes.” The Court’s Chief Justice and four of the Court’s Associate Justices also said in separate opinions that this statute was not constitutional under Congress’ constitutional power in Article I, Section 8(3) to “regulate commerce . . . among the several States.” The other four Associate Justices came to the opposite conclusion that the statute was constitutional under this provision.

This post will review what was said about the interstate commerce clause in the four opinions in the case and then analyze the status of that constitutional provision after this decision.

The Supreme Court’s Opinions on the Interstate Commerce Power

Chief Justice John Roberts’ opinion said that the Affordable Care Act was not constitutional under the interstate commerce clause. The same conclusion was reached in the joint dissenting opinion of Associate Justices Kennedy, Scalia, Thomas and Alito, and Associate Justice Thomas added a separate dissent to express an additional reason why he thinks the statute was invalid under this clause.

The opposite result was reached in the opinion by Associate Justice Ginsburg that was joined by Associate Justices Breyer, Sotomayor and Kagan.

All of these opinions are available online.

1. Chief Justice Roberts’ Opinion.

Chief Justice         John Roberts

First, Roberts gave a fair summary of the existing law on the Constitution’s interstate commerce provision. He said, “Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’  The power over activities that substantially affect interstate commerce can be expansive.  That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.” For this summary, Roberts cited  Wickard v.  Filburn, 317 U. S. 111 (1942),which previously had been criticized by Justice Scalia, and  Perez v. United States, 402 U. S. 146 (1971). (Roberts Slip Op. at 4-5.)

Roberts emphasized this concession when he said, “[I]t is now well established [by the Supreme Court’s prior cases] that Congress has broad authority under the Clause.  We have recognized, for example, that ‘[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,’ but extends to activities that ‘have a substantial effect on interstate commerce.'”  Moreover, he said, “Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” (Id. at 17-18.)For this last point he again cited the Wickard case. (Id.)

Nevertheless, Roberts continued, “As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.'” (Id. at 19.) The Affordable Care Act, however, according to Roberts, would require people to do something, i.e., to buy health insurance. Such a requirement, said Roberts, distinguished all of the prior Supreme Court precedents and, therefore, invalidated the statute. (Id. at 18-24.)

2. Associate Justices Kennedy, Scalia, Thomas and Alito’s Dissenting Opinion.

Associate Justice Anthony Kennedy

Although the joint dissenting opinion did not specifically endorse Roberts’ interpretation and conclusion, it implicitly did so. It did not attempt to overrule any of the Supreme Court’s precedents on the interstate commerce clause. Instead, it said the Wikard case, which Scalia previously had criticized, “held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated” and “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. ” (Joint Dissent Slip. Op. at 2-3.) But Wickard and other precedents, according to the dissenters, “involved commercial activity.” The ACA, on the other hand, attempted to regulate economic inactivity, i.e., the failure to buy health insurance, and, therefore, was unconstitutional under the interstate commerce clause. (Id. at 2-12.)

Associate Justice Clarence Thomas

Justice Thomas was a co-author of this joint dissent and, therefore, agreed with all of its contents. His separate dissenting opinion was issued to reiterate his previously expressed view that the Court’s “‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” (Thomas Slip Op.)

3. Associate Justice Ginsburg’s Opinion.

Associate Justice Ruth Bader Ginsburg

Justice Ginsburg started with her summary of the Supreme Court’s precedents on the interstate commerce clause. She said, “Consistent with the Framers’ intent, we [Supreme Court Justices] have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon ‘practical’ considerations, including ‘actual experience.'” The Court has recognized that Congress has the “power to regulate economic activities ‘that substantially affect interstate commerce'” and regulate “local activities that, viewed in the aggregate, have a substantial impact on interstate commerce.” (Ginsburg Slip Op. at 14-15.)

She added from the Court’s precedents regarding the impact of the Constitution’s Fifth Amendment’s “due process” and implied equal protection clause that the Court repeatedly had said that it owed “a large measure of respect to Congress when it frames and enacts economic and social legislation” and that when “appraising such legislation, we ask only (1) whether Congress had a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.'” In addition, Ginsburg stated, “In answering these questions, we presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.”  (Id. at 15-16.)

Ginsburg then criticized Roberts’ supposed distinction between the Court’s precedents in this area and the Affordable Care Act. That distinction, she said, had no support in those precedents, and his minor premise–the Affordable Care Act required some people to buy a product (health care) they did not want– was erroneous. (Id. at 18-31.)

The Interstate Commerce Power After the Supreme Court’s Decision

Before the Supreme Court issued its decision in this case, I was concerned that the shrill cries of columnist George Will and two judges on the Court of Appeals for the District of Columbia Circuit that called for the Supreme Court to overrule 75 years of Supreme Court precedents on the scope of the interstate commerce clause would resonate with the five so-called conservative Justices of the Supreme Court. My worries were exacerbated by the initial reports that those five Justices had concluded that the Affordable Care Act did not satisfy their view of what that clause allowed.

When I had read the Court’s opinions, however, I discovered that eight of the nine Justice had not overruled any of those Supreme Court precedents and indeed essentially had endorsed them. Only Justice Thomas called for overruling one subset of those precedents, i.e., those allowing Congress to adopt laws under the interstate commerce clause if there were substantial effects on that commerce from local activities.

Therefore, all of those cases are still good law on the expansive nature of the federal power over such commerce. As an advocate for strong federal powers for the U.S. in the 21st century, I am pleased with this result.

As noted above, five of the current nine Justices believe that all the other Supreme Court precedents over at least the last 75 years can legitimately be distinguished from this case over the validity of the Affordable Care Act on the ground that all of the precedents involved regulation of economic activity whereas this current case involved attempted regulation of economic inactivity. Is this a legitimate distinction?

Justice Ginsburg and three of her colleagues did not think so as previously discussed. I leave it to constitutional scholars to analyze the validity of this purported distinction.

There is also a serious question as to whether Roberts’ opinion on the interstate commerce clause (when coupled with the similar discussion in the joint dissent) together constitute a binding decision of the Court under the doctrine of stare decisis.

  • First, there is no official “Opinion of the Court” on the interstate commerce issue that could be considered as the basis for stare decisis. Roberts’ opinion on this issue is his alone. The similar opinion of the other four Justices (Kennedy, Scalia, Thomas and Alito) is a dissenting opinion that does not express concurrence in Roberts’ opinion on the issue.
  • This careful reading of the opinions, however, may be overcome by section III-C of the Roberts’ opinion on the taxing power issue that states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” This section of the Roberts’ opinion is concurred in by four other Justices (Ginsburg, Breyer, Sotomayor and Kagan), but they disagreed with this interpretation of the commerce clause. (Roberts Slip Op. at 41-42; Ginsburg Slip Op. at 2-36.) And Justice Thomas in his own dissent said, “The joint dissent and Chief Justice Roberts correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.” Perhaps these oddities are merely evidences of plain sloppiness in finishing the opinions in this case.
  • Second and more important, the opinions of Roberts and the four dissenters on the interstate commerce issue might be regarded as dicta and, therefore, not binding on the Court in subsequent cases or on lower federal courts. Since the Affordable Care Act was held to be constitutional on a different ground (the power to tax), then all of the discussion about the interstate commerce clause was not necessary to the decision and, therefore, dicta.
  • Justice Ginsburg was alluding to this principle in her opinion when she said that Roberts’ conclusion that the statute was constitutional under the taxing power should have meant there was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” (Ginsburg Slip. Op. at 37 n.2.)
  • Roberts responded to this argument in his opinion: “It is only because the Commerce Clause does not authorize such a command [to buy health insurance] that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that . . . [the relevant statutory provision] can be interpreted as a tax.  Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” (Roberts Slip Op. at 44-45.)
  • All of this discussion might be regarded as hyper-technical because so long as the Court’s composition remains the same, a majority (five Justices) is clearly on record on the limitation on the commerce clause power expressed in their opinions.

There is also disagreement on the significance of the new limitation on the interstate commerce power announced by Roberts and the four dissenters. Justice Ginsburg’s opinion says that Roberts ‘ opinion on the issue exhibits “scant sense and is stunningly retrogressive” and a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” (Ginsburg Slip Op. at 2-3, 37.) This view was echoed by George Will and other commentators who said the reading of the commerce clause was an ultimate victory for libertarians and conservatives. However, one of those conservatives–John Yoo— said this reading of the clause “does not put any other federal law in jeopardy and is undermined by its ruling on the tax power” and in fact is “a constitutional road map for architects of the next great expansion of the welfare state.”

I am an agnostic on the question of the significance of the new limitation. I think Justice Ginsburg overstates the fear of horrible consequences because at least four of the Justices who articulated the new limitation also endorsed the 75 years of precedents expanding the scope of the interstate commerce power. Moreover, Chief Justice Roberts in his opinion in the Citizens United case articulated his concept of stare decisis that makes it unlikely that he would countenance such a large-scale overruling of precedents, in my opinion. A lot depends upon who wins the 2012 presidential election and who will be appointed to the Court over the next four years.

It is interesting and somewhat ironic that while the Supreme Court was struggling with legal arguments that would restrict the power of the U.S. federal government to respond to national economic problems, European countries were struggling with how to create a central power or authority to rescue the  European economy and currency from imminent collapse.

The Role of Stare Decisis in the Forthcoming U.S. Supreme Court Decision on the Affordable Care Act

A prior post discussed stare decisis in the context of recent suggestions that the U.S. Supreme Court should establish a new and different interpretation of the constitutional limits on federal and state regulation of economic activities. Another post summarized arguments why there should be no such changes and why the Affordable Care Act was constitutional.

Here we examine in greater detail the U.S. doctrine of stare decisisas it relates to the forthcoming Supreme Court decision on the Affordable Care Act.

The Doctrine of Stare Decisis

As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is . . . the bedrock principle of the rule of law, to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”

I would add that the doctrine also assists in providing equal treatment for those similarly situated. If, for example, John Doe is held liable to Susan Smith for doing something to her, then Richard Roe should be held liable for doing the same thing to Janet Jones. This is a very important part of the rule of law.

Indeed, Chief Justice Roberts in a concurring opinion in the infamous Citizens United v. Federal Election Commission case from 2010, said, “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function. Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Part of what law students learn in law school and what practicing lawyers do in their lawyerly work is how to identify and articulate the holdings of cases and how to make legitimate distinctions between cases. That is all part of the doctrine of stare decisis.

Exceptions to the Doctrine of Stare Decisis

As Chief Justice John Roberts, however, said in his concurring opinion in Citizens United, stare decisis is not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Yet the Supreme Court has “long recognized that departures from precedent are inappropriate in the absence of a ‘special justification.'”

The Court in considering a potential departure from stare decisis must first conclude that a prior decision or decisions were erroneous. Roberts added, “When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”

Quoting former Supreme court Associate Justice Robert H. Jackson (1941-1954), Roberts said that such a balancing requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Roberts went on, “in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal [of the rule of law] than to advance it, we must be more willing to depart from that precedent.”

One example of a justified overruling of a prior decision is when “the precedent under consideration itself departed from the Court’s [prior] jurisprudence.” Another example, said Roberts, is when ” adherence to a precedent actually impedes the stable and orderly adjudication of future cases. . . such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”

In the Citizens United concurring opinion, Roberts specifically cited three instances of the Supreme Court’s properly departing from stare decisis and overruling prior cases: (1) Brown v. Board of Education‘s overruling of Plessy v. Ferguson and holding school racial segregation unconstitutional; (2) Katz v. United States’ overruling of Olmstead v. United States and holding wiretapping of criminal suspects without a search warrant unconstitutional; and (3) the previously mentioned West Coast Hotel Co. v. Parrish‘s overruling of Adkins v. Children’s Hospital of D.C. and holding minimum wage laws to be constitutional.

 Conclusion

Given the valid and important reasons behind the doctrine of stare decisis and the weighty burden that should be met by any court’s overruling prior precedents, even as expressed by Chief Justice Roberts, the Supreme Court, in my opinion, should adhere to the 75-year deep body of law interpreting the Constitutional limits on economic regulation and uphold the constitutionality of the Affordable Care Act.

This apparently was the view of the Obama Administration at the time of the adoption of the Act and at the start of the various lawsuits challenging that statute. As a New York Times article today states, “Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.”

If a divided Supreme Court this week does change the interpretation of the constitutional limits on congressional power to regulate interstate commerce, it will indeed be radical.

In reaction to such a possibility, Jonathan Turley, Professor at George Washington University Law School, has suggested that the number of Supreme Court justices be increased from its current nine to 19. In his opinion, “Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.”

Turley points out that the number of justices is not set in our Constitution and that nine was happenstance. He also says many developed countries have larger top courts: Germany (16), Japan (15), United Kingdom (12) and Israel (15). France (124) and Spain (74) have significantly more judges on their top courts, but those courts have structural differences from ours. All of these courts, however, “eliminate the [U.S.] concentration-of-power problem.”  Turley suggests 19 for the U.S. as the average size of our federal appellate courts.

Turley’s suggestion echoes my prior criticism of our Constitution as antiquated and “imbecilic” in other respects, including life tenure for federal judges.

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U.S. Supreme Court Hears Case That May Decide If Corporations Are Liable Under the Alien Tort Statute

On February 28th the U.S. Supreme Court heard arguments in Kiobel v. Royal Dutch Petroleum (Sup. Ct. No. 10-1491). The transcript of that hearing is available online.

This case involved claims by a putative class of Nigerians against a corporation (Royal Dutch Petroleum Co. (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-95. Prior posts reviewed the procedural background of this case and the Second Circuit decision rejecting such liability.

The claims in this case were asserted under the U.S. Alien Tort Statute (ATS) that provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.)

 Merits Issue: Are Corporations Liable Under the ATS?

A review of the transcript of the hearing reveals that the entire hour was devoted to only one of the two issues previously identified by the Court as being raised by this case:

  • Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the [U.S.] Eleventh Circuit [Court of Appeals] has explicitly held.

All of the Justices (except Justice Thomas) actively participated in this argument with comments and questions that make it difficult to make any prediction of the ultimate decision in the case, except that it probably will be a decision by a divided Court. Here are samples of some of the comments and questions.

Justice Samuel Alito asked,  “What business does a case like [this alleging human rights violations in Nigeria] have in the courts of the United States? There’s no connection to the United States whatsoever.”

Justice Ruth Bader Ginsburg tried to focus the discussion on the precise issue raised by the case, whether it is only individual defendants [who are liable under ATS] or are corporate defendants also liable?”

Justice Stephen Breyer apparently had difficulty with the Second Circuit’s categorical rule in this case that corporations could never be liable under the ATS. He said he could think of instances where that should not be the case. One he cited was “Pirates Incorporated.”

Justice Elena Kagan also expressed skepticism about an assertion by the attorney for the defendant-respondent that international human rights treaties excluded corporations from liability. Justice Kagan said she thought “the international sources are simply silent as to this question [of corporate liability].” She also observed that such treaties were silent on this issue “mostly because all of these are written to prohibit certain acts,” rather than focusing on who commits such acts.

Justice Anthony Kennedy, who often is seen as the swing vote when the Court is divided, asked the first question almost before the attorney for the plaintiffs-petitioners could open his mouth. Justice Kennedy said, “For me, the case turns in large part on this,” (quoting from the defendant-respondent’s brief), ‘International law does not recognize corporate responsibility for the alleged offenses here.’ Justice Kennedy immediately followed with this quotation from an amicus brief by Chevron Corporation, which is a defendant in another ATS case, “No other nation in the world permits its courts to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”

Justice Anthony Kennedy also noted that international criminal law made a distinction between individuals and corporations with only the former being subject to criminal sanctions. Yet later he mentioned the legal principle of respondeat superior (that a corporation or other principal is legally responsible for the wrongs of its employee or agent under certain conditions) and said that it was a very simple proposition of U.S. law and perhaps implicitly suggested it was applicable in this case.

Subject Matter Jurisdiction Issue

The second issue raised by this case was not discussed at the February 28th hearing. It was the following: Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.

The Second Circuit in an opinion by Judge Cabranes held, without much discussion, that the ATS incorporates any limitation arising from customary international law on whom may properly be sued as a defendant under the statute and that this was a requirement for subject-matter jurisdiction of the federal courts that was not met in this case.

In my opinion, the Second Circuit was clearly wrong on this conclusion on subject-matter jurisdiction. The ATS states that federal courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Thus, to establish subject-matter jurisdiction, (i) the plaintiff must be an “alien” (a non-citizen of the U.S.); (ii) the lawsuit must be for a tort; and (iii) the tort must allegedly be set forth in “the law of nations” (customary international law) or a treaty of the U.S. All of these requirements are met in this case. It then becomes an issue on the merits as to whether the alleged conduct in fact violates the “law of nations” or a treaty of the U.S.

Moreover, the ATS does not specify as to whom the defendant must be, unlike the Torture Victims Protection Act (TVPA) which states the defendant has to be an “individual.” If the ATS did specify in some fashion what kind of defendant was permissible, then that would make the nature of the defendant an issue for subject-matter jurisdiction. (Whether the word “individual” in the TVPA includes corporations was the issue presented in the other case heard by the Supreme Court on February 28th.)

The procedural posture of this case makes my opinion, if it is correct, an important one for The Supreme Court’s disposition of this case. Federal courts are courts of limited jurisdiction requiring such courts always to determine if they have such jurisdiction and prohibiting the litigating parties from conferring such jurisdiction on the courts by not themselves raising problems over such jurisdiction. This basic principle enabled Judge Cabranes in the Second Circuit to raise, discuss and decide the issue of corporate liability under the ATS in this case even though that issue had not been briefed or argued by the parties themselves.

The failure of the defendant Shell to raise the merits issue of corporate liability at the trial court and at the Second Circuit should mean that it is deemed to have waived the issue.

Under this analysis the Supreme Court should reverse the Second Circuit on procedural grounds and not reach the substantive issue of corporate liability.

Conclusion

A Supreme Court decision in this case is expected by the end of June. I reiterate that this is a case of statutory interpretation and the Court’s development of federal common law, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability explicitly.

Under the infamous Citizens United decision the Court treats corporations as individual human beings for purposes of the Free Speech clause of the First Amendment to the U.S. Constitution and the right to make unlimited political contributions. If the Court were to decide that corporations, unlike individual human beings, are not liable under the ATS, this would and should present the Court with at least a public relations problem.