State Judges Should Ground Their Rulings in Their State's Constitution

It always feels a bit weird to me when a state Supreme Court has held that some law or practice of that state is unconstitutional, and then the U.S. Supreme Court reverses. Like, I dunno. If a state legislature refrained from passing a law because it thought the law violated the federal Constitution, but the federal courts disagreed with this conclusion, they wouldn't be able to force the state into passing the law. Why, from the federal government's perspective, should it matter which officials within the state government decide that the state is not going to have a certain law, because they erroneously believe it to be unconstitutional? It feels like forcing the state to do something it doesn't want to do, which is just weird. Of course, I get that this logic doesn't really hold, among other things because someone will have appealed the case to the Supreme Court, either the state government itself (in which case it's not quite right to say that, as far as the feds are concerned, the state doesn't want to enforce the law) or a private party whose success in some lawsuit depends upon that state law's being valid. That person is entitled to their judgment unless the federal Constitution says otherwise. So, I get it. The federal courts are allowed to reverse state court decisions interpreting the federal Constitution, even when that means vacating a judgment voiding a law of their own state.

But... why would a state court ever allow one of its judgments to suffer this fate? Because the thing is, just as state courts have no authority to interpret the federal Constitution contrary to how the federal courts interpret it, so too do the federal courts have no authority to interpret state constitutions contrary to how the state courts have interpreted them. And I believe that almost every state constitution has general language in it similar to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which are responsible for the overwhelming majority of the unconstitutionality of state laws. (Technically much of that burden should fall on the Privileges or Immunities Clause, but as a doctrinal matter it doesn't so that's beside the point for this purpose.) So, therefore, if I were a state supreme court and I were drafting an opinion striking down some state law because I thought it contrary to the federal Constitution, I know what I'd do, every single time: I would include a bit of language saying that, oh yeah, the analogous language in my state's own constitution commands the same result. Because, you see, the federal courts can't touch that holding. So even if they think I'm wrong about the federal constitutional issues, they can't actually reverse my judgment and reinstate the law. Hell, if I include one paragraph making clear that I've read my holding into the state constitution as well, the government (or whoever) can't even appeal to the federal courts, because the case would be moot! It would totally immunize my judgments (of this sort) against federal reversal.

I'm reminded of this by seeing a dissenting judge in a Georgia case about racially discriminatory peremptory strikes in the selection of juries argue for a similar tactic. Except there, the federal law had already been established, so the court would just have been saying, "well, yes, the federal Constitution doesn't require this, the Supreme Court has said so and we're bound by that, but we think the Georgia Constitution does." Quite rightly, he admits that Supreme Court doctrine limiting the application of the rule against such discriminatory strikes is binding on the Georgia court, but as he points out, there is absolutely nothing wrong with interpreting the state's own constitutional guarantees to go beyond the federally-mandated "floor." Just so: when the federal courts decide that a certain state practice is unconstitutional, that's the end of things, but when they decide a practice is constitutional, state courts are still allowed to have their own say, and they may do so in ways that no federal court can touch. Even of nothing more motivates the state judges than a belief that the federal courts are wrong, and should be interpreting the federal Constitution differently! State judges have essentially plenary power to effectively nullify any federal constitutional decision upholding state practice. And that's good--this isn't like ordinary nullification, where a state tries to nullify a federal law or do something that the federal courts say does violate the federal Constitution, because there's nothing in federal law requiring the states to do things the Supreme Court says aren't unconstitutional.

So why don't we see state courts using this tactic more often?

Judicial Review As Legitimation In Action!

One of my favorite arguments that's presented in my grandfather's book The People and the Court, which is a defense of the legitimacy of judicial constitutional review in a democracy, is about the way courts can serve a legitimating function. That is, if there's a law whose constitutionality, and thus legitimacy, is in controversy, having it subjected to rigorous judicial review and then get upheld can settle a lot of doubts about its constitutionality and thus legitimacy. The institution of judicial review, then, should significantly increase the confidence of the people that those laws which are being implemented are in fact constitutional and legitimate. It's a really cool theory. It's also the kind of thing you can imagine not happening in practice. (For example, I don't think very many Republicans were convinced by NFIB that the Affordable Care Act is in fact constitutional, although I know of only one Republican type who has anything particularly clever to say about why John Roberts' tax argument is wrong.)

Well, here's an example of it happening in practice. From Kevin Drum's latest piece about how using the Authorization for the Use of Military Force from just after 9/11 as the legal justification for various War on Terror-related activities isn't really okay anymore:

If Congress wants to give the president that power [of targeted killings of American citizens like al-Awlaki], it should debate and pass a law and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.

Just like that! That's exactly what's supposed to happen. The Court declares it unconstitutional, and people accept it as legitimate. Even if they don't like it, they accept it. Just so!

Which State Will Accept Gay Marriage Next?

The state of Virginia just lost a case in federal court today, and I daresay it will not appeal the ruling. A federal district judge has ruled, as is their wont, that Virginia's laws prohibiting same-sex marriage violate the Fourteenth Amendment of the Constitution, and are hence invalid. The interesting thing is that Virginia's governor is a Democrat. Not only that, but so is the Attorney General! Mark Herring won a nail-biter of a race last year, by far the most exciting of Election Night 2013. He has since announced that he thinks Virginia's anti-gay marriage laws are some combination of bad and unconstitutional. Presumably he won't appeal. If that's right, it means Virginia's a gay marriage jurisdiction as of right now. Okay maybe as of whenever they dig out from under the current snowstorm. And this has me thinking, what other states might find themselves joining the marriage equality ranks without any further political action? That is, what states might accept a ruling by a federal judge striking down their anti-gay marriage laws, and decline an appeal?

Eric Posner Doesn't Get How to Fight Tyranny of the Majority

Eric Posner has a column today at Slate arguing that the recent filibuster reform for judicial nominees is a big problem, especially for fans of moderation. Basically he thinks the filibuster was good because it prevented tyranny of the majority. Now, he concedes that given how our government is constructed, requiring 60 votes in the Senate for ordinary legislation is probably unnecessary to prevent tyranny of the majority. For appointing life-tenured judges, however, he thinks that letting the Senate majority plus a President of the same party do whatever they damn well please is a really bad idea. I have a lot of problems with his argument (that he ignores the game-theoretic argument that the old filibuster rules were never a stable state and that, having conceded that Democrats had no choice given Republican intransigence, he then fails to lay the blame for all the problems he describes squarely on the Republicans' doorstep being two of the biggest), but what I want to talk about in this post is the way he misunderstands "tyranny of the majority," and especially how to fight it.

Yes, Democrats Will Be In The Minority Some Day, That's Exactly Why Filibuster Reform *Now* Is So Brilliant

It finally happened. They reformed the filibuster in a big way. Now it only takes 51 votes to invoke cloture on an executive branch nominee or a nominee to a lower federal court (i.e., not the Supreme Court). This resembles yesterday's trade of Prince Fielder for Ian Kinsler in that it looks to be just the first move of the coming constitutional crisis, or really what I anticipate will be more like constitutional spring cleaning, sweeping out the various cobwebs that are making our government harder to run than it needs to be under the Constitution. Republicans are, predictably, upset, and they're trotting out some masterfully dumb concern trolling. No, I don't mean the thing where they say Democrats have made it impossible to get anything done, because now--unlike before!--the Republicans are angry. That's not exactly concern trolling, it's more like a kind of an attempt to justify their forthcoming chutzpah. "It's your fault that I'm going to stop anything from getting done!" What I'm talking about is the claim that Democrats will live to regret this because one day they'll be in the minority, and they're not gonna like what Republicans do with the power Democrats have just given the Senate minority. Like this tweet from some Republican spokesperson:

Sen. McConnell spokesman: "I'm looking forward to President Rubio stacking the courts."
— Kasie Hunt (@kasie) November 21, 2013

The thing is, though, this oh-so-charitable attempt by Republicans to show the Democrats that this rule change won't always be to our benefit only serves to highlight the critical importance of acting now. Because, you see, while it is probably true that at some point in the future, possibly multiple decades from now or maybe sooner, Republicans will control both the Senate and the Presidency, that day will look very different from this day in one key respect: there won't be a judicial vacancy crisis anymore. There probably won't be, anyway. You see, there are 93 vacancies on the federal bench right now, including 18 open seats on various Courts of Appeals. Since cloture still seems to give the minority the power to waste a day or so of Senate time, this would take a while, but in principle Obama now gets to appoint 93 new federal judges. That's well over one tenth of the federal bench. That's a huge windfall of potential new liberal judges, that Republicans won't be able to get rid of even if they take over in 2016. And once that windfall gets soaked up by somebody, since there's no judicial filibuster any more we'll probably start seeing vacancies get filled pretty much as they occur. This is, in other words, a one-time windfall. If Democrats take advantage of this opportunity, there's every reason to think Republicans will never get a similar one.

Now, that would be enough incentive if it were plausible that filibuster reform might never happen, that the Senate might just keep humming along letting the minority block nominees it didn't like. But that's not plausible. Over the past decade, Democrats and then especially Republicans realized that it's just plain irrational to keep letting the other side put its people on the bench if you have the power to stop them. But every time the minority commits to a stronger form of obstructionism, they only increase the majority's incentive to remove their ability to obstruct. That makes it inevitable, I think, that these rules will get changed, over a long enough time horizon. It's simply too hard these days for the minority to forgo use of a tool they've been legitimately given. So both parties can know that, if they aren't the ones to break the "In Case of Emergencies" glass box, that means it will be the other side. And that means they both know that not only does taking advantage of the judicial vacancy windfall mean the other side won't get to do so, not taking advantage of it pretty much guarantees that the other side will. Or, to put it another way: support some right-wing Republican is elected in 2016 and the Republicans take the Senate, even by a single vote. Who really thinks they wouldn't enact some kind of filibuster reform their very first day in office at least as drastic as what happened today? Of course they would; they know better than anyone how powerful a weapon the filibuster can be, and there's no way they'd let that weapon fall into Harry Reid's hands if they saw a chance to reshape the federal courts for a generation. So making this rules change now is in fact the only way to stop President Rubio from stacking the courts.

Except, y'know, winning Presidential elections for the foreseeable future. But we're working on that, too.

Nope, Sorry, Supreme Court Justices Aren't Staying on the Bench Longer

This is not the post I expected to write. I expected to write a post offering an alternate interpretation of the statistics in this Slate post advocating an attack on life tenure for federal judges. Basically, they present data showing that more Justices are staying on the Court at least 10, 20, and 30 years since 1900 than did so before that year. My argument was going to be that this wasn't necessarily because the Justices were living longer, but just that the Supreme Court has come to be seen as a more important institution, basically as constitutional law and individual-rights law have grown to their current prominence, and so fewer Justices were just leaving to go do something better. I was going to claim that you could see this in the massive increase of 10-year Justices, and the proportionally similar growth of 20-year ones, and the complete lack of an increase in 30-year Justices. But, as it happens, I'm not going to write that post. Because while I was writing that post I discovered that I couldn't generate their numbers for myself, by looking at the very-publicly-available and not-very-complicated data. In fact they don't state very explicitly how they're getting their numbers, and I can make one assumption that gets me numbers close to theirs, though not the very same numbers. But that's not really my point, I don't care much about whether someone writing a Slate post got slightly wrong how long the various Justices have been in office. No, my point is that my own look at the data suggests that their factual conclusion is just wrong: there has been no long-term trend toward longer terms in office among Supreme Court Justices, though there's some reason to think the current Court might be beginning to exhibit one. The data here is really tricky, but I'll go through it in some detail below the jump.

Law & Economics and Political Theory

First of all, a caveat: I'm not talking about all law & economics. Not necessarily. The central concept of economics is optimization under constraint, and in principle those techniques can be used under any value scheme that tells you what to optimize (although it does get tricky when you have non-quantifiable values). You can do a law & econ-style analysis, therefore, under any value scheme. But I am talking about most of the field of law & economics, as I have encountered it so far. Not just the Richard Posner-style law & econ, the problems with which are obvious, but also with kinder, gentler, Guido Calabresi-style law & econ. Okay, caveat over; actual piece after the break.

The Role of Law

I was at a talk about the life and times of Robert Bork today and, while I don't think I should quote it in too much detail, the speaker did mention several times that Bork was constantly looking for some kind of grand unifying theory for law. Specifically he seems to have spent some time trying to devise a comprehensive theory of when government may legitimately coerce its subjects. That's a very interesting subject. In a way it's the bedrock of political theory, since the legitimate use of force is a very large part of what distinguishes the government from the rest of society. But there's something it isn't, and I think (from some of the other stuff the speaker said about Bork's growing disillusionment) it's something Bork realized it isn't.

It isn't a matter for lawyers and legal institutions to decide.

Let me put that another way. If a country establishes a written democratic constitution that creates a set of political institutions, including a group of courts which will constitute a legal system. That legal system, and the lawyers and judges who constitute it, have a lot of important roles in the functioning of society. Deciding when the government may legitimately coerce its citizens is not one of them. The people have already decided that, in large part, in creating their constitution. It presumably will list some ways in which the government cannot coerce people, or maybe it will instead list certain ways in which the government can coerce people and imply that it mayn't in other cases. Those decisions are binding on the courts. In particular, any exercise of power by the government which the constitution either permits or fails to prohibit (depending on what the background default principle is) must be upheld and, specifically, enforced by the courts. They must be the instruments of that very coercion. They can't come up with some theory of government legitimacy independent from the constitution which gives them life and then refuse to apply laws which run afoul of it. Of course constitutions are ambiguous so a judiciary in interpreting the limits established by the constitution will need to do some political theory, but it must take the constitution as its postulate in doing so.

Now, this isn't to say that people who have legal training and expertise shouldn't think about these issues. Legal training and expertise can be obviously relevant in certain ways. And these deep issues of political theory don't stop being relevant once you write your constitution, not only because you can always amend it. The courts may not prevent the government from doing something just because they think it violates some important principle of political theory independent from the written constitution, but there is an institution that can: the legislature. It's easy. Just don't write laws that do it. If the polity comes to the conclusion that some power which its constitution grants to the government is an improper one which the government should not exercise, it can rather easily elect legislators who will vote not to exercise that power. And people who are lawyers can and should contribute to the public discourse over what kinds of government coercion can be legitimate. What they shouldn't do is start thinking that in their institutional capacity they should act upon these same kinds of philosophizing. That may sound like a slightly weird thing to say for someone who's a big fan of courts being quite expansive in their interpretations of constitutional provisions, but I do believe in rooting such interpretations pretty directly either in the text of the constitution or in the structure of the government that is created by the text.

Now, I don't know how much Bork ever advocated doing this kind of thing that I'm criticizing, how much he tried to substitute his personal theories of political legitimacy for those of the American constitution and political processes. I'm not an expert on Bork's life, and right now I don't feel like making a lengthy empirical examination of how much conservatives do this kind of thing as opposed to liberals, or whatever. It's just a thought I had.

Judicial Review, Variously Situated

I just read Jeremy Waldron's article The Core of the Case Against Judicial Review, so there may be a few judicial-review-themed posts in the next few days. Here's the first one. Fundamentally I think there are three practical questions regarding judicial review. First, should a nation like the United States, which possesses a tradition of relatively successful judicial review, abolish or weaken that institution? Second, should a nation like the United Kingdom, successful and prosperous with a tradition of legislative supremacy and no constitutional review, create the institution of judicial review? Finally, should a nation with no strong tradition any which way which is creating a new government for itself decide to include the institution of judicial review in that government? These are three very different questions, and there is in principle no inconsistency about thinking that the U.S. should retain judicial review and that Britain should not institute it.

The Proper Structure of the Judicial Branch

The current election for a spot to the Wisconsin Supreme Court, which (not shockingly!) has become intensely politicized, reminds me of some of my thinking about how to structure a judicial branch. One's first inclination is to say, "judges shouldn't be elected!" and indeed I don't think you go very wrong by adopting that approach. But I think my actual main feeling about how to set up a court system is a little different: no one one the top policy-setting court should have any opportunity to be concerned with having to keep themselves on that court. There are two ways to accomplish that: one is life tenure, and the other is some sort of fixed term with an absolute lifetime 1-term limit. The point is that you don't want justices on your court system's Supreme Court to be looking over their shoulders. I don't think you can avoid some political ambition influencing judges on lower court systems, because they will always be aspiring to appointment to higher courts, so I suppose I can't really object all that forcefully to re-appointment to lower courts. I'm not sure I see any reason for it, though, and I probably think that for a sitting judge to focus on re-election is a mistake. So, all in all, I guess I would say:

• Judges on the Top Court should either have life tenure or a strict term limit. There should never be any opportunity to be re-appointed or re-elected to the highest court.
• Requiring re-appointment of lower-court judges seems permissible, though probably not particular desirable as far as I can see.
• Re-election of lower-court judges strikes me as deeply questionable.
• I'm not that fussed how judges get onto a court. If you can be elected once but then never have to worry about facing the voters again, that strikes me as fine. However, I imagine there are various practical problems here; would there be elections only for open seats? So a judge would get elected to fill a vacancy and then serve for as long as they wanted with periodic re-appointment? It seems like an odd system, and I would probably prefer to keep elections out of it altogether.