John Paul Stevens, who served as an Associate Justice of the U.S. Supreme Court for nearly 35 years (1975-2010), has issued a stinging rebuke to its recent decision invalidating an important provision of the Voting Rights Act of 2006.
Stevens’ remarks came in his review of a book about the history of that statute: Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.[1]
As discussed in a prior post, the court on June 25th in an opinion by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held unconstitutional the Act’s formula that determined which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. The Court concluded that the burdens of such pre-clearance on the jurisdictions covered by the formula were not justified by current needs and, therefore, violated basic principles of equal state sovereignty or autonomy over voting.[2]
First, Stevens disputed the major legal premise of the Roberts’ opinion. Instead, Stevens agreed with Justice Ruth Bader Ginsburg’s dissenting opinion in the case that “the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Emphasis in Stevens’ book review.)
Second and more importantly, Stevens strenuously objected to the Court’s not respecting the virtually unanimous congressional support for the 2006 re-authorization of the Voting Rights Act after “thorough evidentiary hearings.” Said Stevens,
“The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the [Act].”
Stevens found support for this conclusion in an unlikely source–the dissenting opinion of Justice Antonin Scalia in the case that invalidated the federal Defense of Marriage Act.[3] According to Justice Scalia,
“This [DOMA] case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.”
A prior post has discussed the new book by U.S. Supreme Court Associate Justice Antonin Scalia and Bryan A. Garner – Reading Law: The Interpretation of Legal Texts. It discusses principles or canons of statutory and constitutional construction, including the Justice’s frequently proclaimed theory or canon: “Words must be given the meaning they had when the text was adopted.” Moreover, for Justice Scalia, as he writes in the book and in many judicial opinions, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, in his opinion, illegitimate.[1]
Posner’s Criticism
Judge Posner
Now Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit and a Senior Lecturer at the University of Chicago Law School (my alma mater), pens a blistering criticism of this theory and the book under the title “The Incoherence of Antonin Scalia.”
According to Posner, Scalia is the defender of the purported passive judicial role. Such judges and defenders say that all such judges do “when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.”
Such a claim, says Posner, is nonsense. It does not effectuate legislative intent. Instead it “hobbles legislation.” As Posner sees it, a “legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text.” All legislatures have understandable “limitations of foresight,” and “the fact that a statute is a collective product . . . often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers.”
Moreover, Posner says, “The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke ‘motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”
Chief Judge Easterbrook
Posner endorses the views of Frank Easterbrook, his fellow Seventh Circuit and University of Chicago Law School colleague. Easterbrook says, in the forward to the Scalia and Garner book no less,“Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.”
When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” In those circumstances, Easterbook adds, “the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint.
Posner also has a detailed exposition of inconsistencies and errors in the analysis of Scalia and Garner.
Retort to Posner’s Criticism
Ed Whelan
Posner’s criticism was immediately attacked by Ed Whelan (Martin Edward Whelan, III), a former Scalia law clerk, an attorney and the President of the Ethics and Public Policy Center, in a post to the National Review Online entitled “Richard A. Posner’s Badly Confused Attack on Scalia/Garner.”
He asserts that Posner’s analysis “is remarkably slipshod and untrustworthy.”
In this post he has three major points.
First, he believes that Posner “misunderstands the relationship between Scalia and Garner’s defense of original-meaning textualism, on the one hand, and their elaboration of interpretive canons, and of selected cases applying particular canons, on the other.”
Second, “Posner’s broader attack on textual originalism . . . is replete with errors and distortions.” According to Whelan, Scalia and Garner, for example, clearly recognize and endorse the use of legislative history for the purpose of establishing linguistic usage.
Third, Posner criticized Scalia and Garner’s emphasis on using dictionaries in construing legal texts, but, says Whelan, Posner fails to take into account Scalia and Garner’s appendix titled “A Note on the Use of Dictionaries.” There they point out the dangers in “an uncritical approach to dictionaries” and enunciate“primary principles to remember in using dictionaries.”
Conclusion
This does not really end the discussion. Whelan promises additional posts in his criticism of Posner. I am also sure we have not heard the last from Judge Posner on these issues.
[1] Another post and two comments thereto examined other reviews of the Scalia and Bryan book.
A prior post about interpretation of the U.S. Constitution’s provision about interstate commerce discussed a new book by Supreme Court Associate Justice Antonin Scalia and Bryan A. Garner: Reading Law: The Interpretation of Legal Texts.
A glowing review of this book is provided by Stanley Fish, a professor of humanities and law at Florida International University.
Fish says the book “is compulsively readable. Scalia and Garner have a talent for making complicated and sometimes arcane points of doctrine seem accessible and even plain. The argument is carried by analyses of innumerable cases, each of which is used to elaborate and illustrate a particular canon. The economy with which the cases are presented and explicated is remarkable. The reader is at once entertained -humorous asides abound – and initiated into the rigorous yet often wacky world of the law. The authors follow Horace’s injunction to both teach and delight. In short, this is a wonderful book.”
On the other hand, Fish says the book is wrong in its “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences. ” According to Scalia and Garner, “‘Textualism,’ begins and ends with what the text says and fairly implies.” Textualists proceed “on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.” We are textualists, Scalia and Garner announce, which means that we “ascribe to the text the meaning that it has borne from its inception, and reject speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s consequences.”
As part of their argument for textualism, Scalia and Garner attack one of the competing theories of interpretation of legal texts: intentionalism or purposivim. According to Scalia and Garner, the purposivist is someone who “goes around or behind the words of the controlling text to what he believes to be the provision’s purpose.” That is, the purposivist substitutes for the objective materiality of the text the subjective will-o’-the wisp of purpose or intention, and unconstrained by the text he is free to “‘fill in’ or change the text according to [the purpose] he has chosen.”
Fish strenuously disagrees. He says the text itself will not tell the reader what the purposive context is. “The specification of purpose is what stabilizes a text and a text’s purpose is not self-evident; you can’t simply extract it from the text, and without its having been assumed or presupposed, the text will not settle down. Intention/purpose comes first, texts and meanings follow.”
This discussion reminds me of a question that has been kicking around in the back of my mind.
The U.S. Constitution has the following statement of its purposes in its Preamble:
” We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Although I studied constitutional law in law school nearly 50 years ago and was a lawyer in several constitutional lawsuits and have read a lot about U.S. constitutional history, I do not know of any Supreme Court cases or secondary sources that refer to the provisions of the Preamble in analyzing constitutional issues. If anyone knows of any such cases or sources, please write a comment to this post identifying such materials.
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.
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.
