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Debate Club
DEBATE CLUB 2/28/05

Hail to the chief?

Kermit Roosevelt and Richard W. Garnett debate.

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In the current issue of Legal Affairs, former Supreme Court clerks Kermit Roosevelt and Richard W. Garnett offer opposing views on the current chief justice's legacy: Has William Rehnquist humbly served the law, or arrogantly grabbed power for the court? In this week's Debate Club, they square off about their differences.

Richard W. Garnett clerked for Chief Justice William Rehnquist from 1996 to 1997. He is an associate professor of law at the University of Notre Dame. Kermit Roosevelt clerked for Justice David Souter from 1999 to 2000. He teaches constitutional law at the University of Pennsylvania Law School and is the author of the forthcoming novel In the Shadow of the Law.

Roosevelt: 2/28/05, 12:14 PM
Rick, I enjoyed reading your take on Chief Justice Rehnquist. At one level I think we have a very similar view of him, as a man with a strong common sense bent, a fondness for poetry, and a good sense of humor. At others I think we differ, and I'm glad to have the opportunity to go back and forth on the differences a little.

Let me start with one that isn't necessarily a criticism from my perspective: the significance of institutional or non-doctrinal factors in the Chief's decision-making. One can assess a constitutional decision from several different perspectives. The narrowest is its effect on the actual litigants. Deciding a case based on a preference for one of the parties is what Jack Balkin and Sandy Levinson have called "low politics," and I think it's fairly clear both that this is illegitimate and the Court almost never does it.

Then there are considerations that could be called "high politics," or "constitutional politics"—visions about the appropriate structure of our government, or values that should be reflected in the Constitution. Frequently these will relate to particular doctrinal issues—how broad the power of the federal government should be or what separation of church and state means. They won't, however, line up perfectly with any partisan politics. Federalism, for instance, will have very different partisan valences depending on who's in control of national and state legislatures.

Giving weight to these kinds of considerations, I would say, is both legitimate and inevitable in constitutional decision-making: constitutional cases frequently don't have obvious right answers, and you need some sort of theory to get you to an answer. (That struck me as the biggest difference between the Supreme Court clerkship and the Court of Appeals one.) And I agree with you that the Chief has had great success in bringing doctrine more in line with his vision of the Constitution.

Then there are what I called non-doctrinal factors, things like the allocation of interpretative authority between the Court and Congress or other actors. This issue will cut across doctrinal areas, without necessarily tracking any particular doctrinal vision, in much the same way that high political visions don't track partisan politics. And, of course, it won't track partisan politics either—over the years we've seen the Court be both a good deal more liberal and a good deal more conservative than Congress. One of my claims was that the Chief's drive to reshape doctrine has at times been blunted by his insistence on interpretive supremacy, and I'm curious whether you agree with me on that.

To put the point a little more generally, I think that in a wide variety of doctrinal areas, the Rehnquist Court has consistently identified the Constitution with what the Court says, and more precisely what it does—a governmental act is unconstitutional, the Court thinks, if and only if it will be held unconstitutional under the relevant doctrinal test.

That was not always the case, and I think this vision of the relationship between doctrine and the Constitution might be the Chief's most significant contribution. You probably have a much better sense of what he thinks on this issue than I do, and I'd be interested in hearing whether you think that's an accurate assessment.

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Garnett: 3/1/05, 08:48 AM
Thanks for your kind words about my reflections about the Chief and his legacy; I appreciated your insight as well. Thanks also for this chance to continue the conversation!

You raised the matter of "high" and "low" politics, and their relation to constitutional decision-making. We agree, of course, that to decide a case on the basis of "low politics" would be unworthy of a judge. That said, I share some of Professor Larry Solum's reservations about the "high" v. "low" distinction invoked by Professors Levinson and Balkin. As Solum put it, over at the "Legal Theory" blog, "[i]f the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. . . . The crucial distinction is between decisions that are based on the law—on things like texts, history, and precedent—and decisions that are based on politics." What do you think? Is there a distinction to be drawn—a line, somewhere—between "high politics" and "law"?

You also asked for my reaction to your important claim that "the Chief's drive to reshape doctrine has at times been blunted by his insistence on interpretive supremacy." And, you suggest that "the Chief's most significant contribution" might be a "vision of the relationship between doctrine and the Constitution" under which "a governmental act is unconstitutional, the Court thinks, if and only if it will be held unconstitutional under the relevant doctrinal test."

I don't think I agree that the Chief endorses or has insisted on the Court's interpretive supremacy or on judicial supremacy more generally. Of course, it would be hard to deny that the "Rehnquist Court"—or, at least, the "Rehnquist Court" in its "O'Kennedy Court" appearances—has often appeared to insist on something like "interpretive supremacy" and to identify the twists, turns, and tensions in the doctrine it generates with the Constitution itself. It is not clear to me, though, that the excesses of this tendency reflect the Chief's views.

In my view, perhaps the most troubling example of the "arrogance" that many of the Chief's critics perceive in his work and legacy is the plurality opinion in Planned Parenthood v. Casey. There—in language that some observers attribute to your former boss, Justice Souter—three Justices told us that the Court's own "legitimacy" was intimately and fundamentally linked to the "people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands." They even worried that our fellow citizens' "belief in themselves" as "people who aspire to live according to the rule of law" "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." Even with respect to a moral and political matter as difficult and delicate as abortion, the plurality took it upon itself to "call[] the contending sides of [the] national controversy to end their national division by accepting a common mandate rooted in the Constitution."

As I see it, there is something to the claim that the Chief's constitutional "vision" is one in which the Court has the job of protecting the integrity of the Constitution's structural features—for example, what Rehnquist called the "first principle[]" that our "Constitution creates a Federal Government of enumerated powers." At the same time, though, it strikes me that, generally speaking, the Chief has—unlike the Justices in the Casey plurality—been appropriately reluctant to invoke "interpretive supremacy" to cut off political and moral debates that, in his view, are properly the business of legislatures. What do you think?

Roosevelt: 3/1/05, 03:48 PM
I will try to do justice to all the points you raise, which I think are connected in interesting ways. For the first, I do think there's a line between high politics and law. And some constitutional cases fall on the law side of things—they have right answers that all reasonable people should be able to agree on. Many don't, however. Text, history, and structure won't take you all the way in many circumstances. (Precedent is somewhat more powerful, but even it isn't entirely determinative.) It's in the underdetermined cases that constitutional politics come into play.

I think that abortion rights (to move to the second point) are an example of that. I have no hesitation in admitting that the Court's abortion jurisprudence is less than fully satisfying, and some of the Casey passages you quote almost merit Justice Scalia's pungent response in dissent: "The Imperial Judiciary lives." Let me try to offer a partial defense and then a comparison.

I believe the Due Process Clause is sensibly understood to contain substantive limits on legislation, both historically and textually. (Briefly, I think the original understanding of the Due Process Clause relied on the notion that some procedurally sound legislative acts were not law, because they invoked powers that judges could deduce had not been delegated to the government.) I believe that the substantive limit can plausibly be characterized as a cost-benefit requirement that laws promote the public interest. I also believe that this limit is meant to be observed by legislatures and enforced only deferentially by judges, for reasons of both institutional competence and democratic legitimacy, so due process scrutiny should generally be minimal. Two important values—life and liberty—clash in the abortion context. I think it's hard to say either that the Constitution makes that choice as a general matter or that it entrusts the choice to judges rather than legislatures.

But I think the Due Process Clause does tell judges to scrutinize legislative value choices less deferentially when there's a possibility that the legislature's cost-benefit analysis is skewed, and I think that the underrepresentation of women in legislatures and the persistence of stereotypes about female capacities and appropriate roles might justify some skepticism that women's liberty is being weighed as highly as men's is. (That is, I think it's constitutionally permissible for a legislature to decide that life is more important than liberty, but not that life is more important than women's liberty alone.) A judge troubled by the possibility of bias might just make her own assessment of the competing interests, or she might ask questions like how the life/liberty tradeoff was made in other contexts—blood donation, postmortem organ donation, duties to rescue, things like that. And in this way you could have judicial review that doesn't necessarily usurp the legislative role of making value choices.

Of course, that's not what the Court is currently doing and one could criticize its current abortion jurisprudence as antidemocratic. But lest we think it's only one side that does this, or that conservatives are concerned only with structure, what about affirmative action? The Equal Protection Clause is textually about as inscrutable as the Due Process Clause. Historically, the Reconstruction Congress that drafted the 14th Amendment also enacted race-based remedial legislation. So here, I think, is another area where we need some justification for judicial intrusion into the democratic process to shut down debate and ban a particular kind of law. It's easy to explain why classifications burdening racial minorities should be suspect—that's the kind of law where the legislative cost-benefit assessment is least to be trusted. But what explains the conservative justices' insistence that affirmative action get strict scrutiny?

I see I've gone on too long already, so I'll leave for a later post my thoughts on the identification of the Constitution with what the Court will uphold and strike down. My impression that the Chief is one of those who champions this identification comes from his commerce clause and section 5 opinions— Morrison, Lopez, and Garrett. (I don't really know what to make of Hibbs, and I'd be interested in hearing what you have to say about that case, too.)

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Garnett: 3/2/05, 09:28 AM
Great stuff. I agree with you that there will be cases—though I probably envision fewer of these cases than you do—where text, history, structure, and precedent "won't take you all the way," and where even the most committed and curmudgeonly anti-"Imperialist" judge will turn to what you call "constitutional politics." At the same time, I am inclined to think—and I'd welcome your reaction to this admittedly tentative suggestion—that the text, history, and structure of the Constitution supply a fair bit of the permissible content of this "constitutional politics." That is, perhaps we want to say that, even in cases with "underdetermined" outcomes, the relevant text and history limit the "menu" of high-politics options that are available?

I appreciate your thoughtful discussion of the Court's abortion-rights caselaw. Before addressing some of the many interesting matters you raise, maybe I can garner some "consistency points" by agreeing with you that the Court's affirmative-action cases are (I apologize for using this weasel-word) "problematic." Many reasonable people believe in good faith that affirmative-action policies are counter-productive and even unjust; still, as you say, it is far from clear that the Equal Protection Clause justifies "judicial intrusion into the democratic process to shut down debate and ban [this] particular kind of law." (Maybe we talk another day about whether the Justices were completely candid about what they were doing—strict scrutiny? —in the recent University of Michigan cases?)

Turning to the abortion front, I agree with you that the Fourteenth Amendment places substantive, as well as procedural, constraints on legislatures. I do not think, though, that these constraints should be understood to preclude laws that protect the lives of (what legislators might reasonably decide are) unborn children by regulating abortion. And, it does not seem to me that the demographics of legislatures, or the persistence in some quarters of gender-based stereotypes, should require—or even authorize—judges to invalidate abortion laws on the basis of an assumption that anti-abortion legislatures are discriminatorily under-valuing the liberty of women.

That said, I'd like to hear more—we reach our word-limits really fast, don't we? —about your more general claim that the Amendment's "substantive limit can plausibly be characterized as a cost-benefit requirement that laws promote the public interest." Such a requirement—even with your caveat about deferential review—seems way too sweeping. You envision, if I understand the claim, close cost-benefit / public-interest scrutiny of legislative choices whenever "there's a possibility that the legislature's cost-benefit analysis is skewed." But isn't the judicial determination that the legislature's analysis is skewed—and therefore subject to second-guessing—itself a substantive, "high politics," almost question-begging decision? How do you think judges should go about deciding what counts as "costs," "benefits," and "skewed"?

Roosevelt: 3/2/05, 08:21 PM
I agree that there's a limited menu of high politics choices available. And I think that frequently high politics work themselves out within an analysis of structure or history, or even ambiguous text. I'm thinking, that is, of something like the Court's sovereign immunity jurisprudence, where you have dueling historical accounts. And I think that what distinguishes Justice Kennedy from Justice Souter on these issues is best described as a kind of high political intuition about the nature of the American system— whether the States have a sovereign dignity that demands respect in its own right or whether the national People are the ultimate sovereign and not restricted by nontextual notions of state sovereignty. That intuition will affect the way a Justice reads the history.

But let me say a little more about due process, because it leads into the interpretive supremacy issue. This is condensed, but I hope it's intelligible. I think it doesn't make much sense to say that the abortion right is protected by the Constitution in the same way as free speech—that is, as a freestanding constitutional right. Maybe that's a 9th Amendment argument, but I don't think it's a Due Process one. The way in which the Due Process Clause protects, I think, is not by singling out certain rights as fundamental, but by telling the legislature not to pass laws that are not in the public interest.

In the early 20th century, courts thought that defining the public interest fell within the judicial competence, and they enforced the rule aggressively. But the distinctions that they tried to maintain came to seem either incoherent or within the legislative competence and that style of judicial review came to be seen as judicial intrusion into policymaking. So around the New Deal the Court recanted and announced that generally speaking it would defer to legislative assessments of costs and benefits. But you can still see the principle that legislation must be in the public interest—when the Court applies rational basis review to uphold what looks like naked favoritism, it doesn't say that naked favoritism is constitutionally okay. Instead, it stretches to find public-regarding reasons for the laws.

So when will judges not defer? What the Court seems to be doing now in the due process context is deferring less when the laws impose high costs on those that they burden. This is not a complete justification, because it doesn't explain why courts would be better than legislatures at assessing the costs and benefits of high cost laws. So you would think that courts would still be fairly deferential, and this is what Justice Souter has said— courts should second-guess the legislature only if it appears to have made a patently unreasonable choice between conflicting values. (Whether that gets you Casey on grounds other than stare decisis is another question.)

What I was suggesting was that you could supplement this with the Carolene Products insight: in some cases, legislative assessment of costs and benefits will be skewed because the benefits will go to a powerful group and the costs fall on a weak or underrepresented one. Here it's predictable that the legislature will be tempted not to balance accurately. (So by "skewed" I meant "biased" rather than "incorrect.") And in such cases, less deference is appropriate.

So my vision of Due Process is a public interest requirement that's usually underenforced— courts will uphold naked favoritism not because it's constitutionally okay, but because they've decided that the responsibility for observing this requirement has to rest primarily with the legislature. This idea of judicial decisions not tracking the constitutional requirement is what the Rehnquist Court, if not the Chief himself, seems to reject—in Morrison and Lopez, for instance, where he pretty clearly says that if there are no judicially enforceable limits to the commerce power, there are no constitutional limits. And I think you see this elsewhere, too, in areas I hope to get to in some of the future posts.

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Garnett: 3/3/05, 10:05 AM
I'm learning a lot from this conversation, thanks. I think the example you select to illustrate your point about "high politics"—that is, the way that Justice Kennedy's sovereign-immunity votes are shaped by his "big picture" thinking about the nature of the States and of the constitutional structure—is a good one and very helpful. My own view, by the way, is that the Rehnquist Court's so-called Federalism Revolution would be improved by excising the almost-mystical attitude toward "the States" and their "dignity" that Justice Kennedy often displays. As I see it, the key concept in that Revolution should have been a Lopez-style emphasis on limited and enumerated federal powers. In other words, it is not the "dignity" of States that should constrain Congress, it is Article I of the Constitution. I am inclined to regret the fact—turning back to our subject, the Chief Justice's legacy—that the sovereign-immunity debate seems to have sucked all the air out of the debate that I hoped Lopez would start.

Turning to your discussion about the Due Process Clause and the public interest, I don't think I could sign on to your approach. (This is "Debate Club," after all!) That is, I would frame the discussion more in terms of fundamental rights than in terms of a judicially enforced public-interest requirement. Certainly, your account is coherent, but I guess I don't think it really fits the history and, in any event, I think allocates excessive policy-making power to reviewing judges. You have done more work and reading on the matter than I have, but I think what was happening in the early 20th century was not so much that courts were "aggressively" enforcing a "rule" that legislatures "not . . . pass laws that are not in the public interest;" instead, as I see it, these courts were protecting rights (as they understood them) and enforcing substantive limits (as they understood them) on legislative authority. Now, as you say, the courts eventually adopted a more deferential stance toward legislative enactments, but I wonder if this is because they decided legislatures were better at tallying up costs and benefits or because they determined that they had misunderstood the rights they had previously been protecting, and the constraints they had been enforcing, so vigorously?

Maybe I can sum up my concerns about your Due Process theory like this: It seems to me that courts should not be any more confident in their ability to identify, in a neutral way, cases where the legislature's cost-benefit analysis is skewed or where the legislature is tempted "not to balance accurately"—and where, in your view, judicial second-guessing is warranted—than in their ability to decide generally whether legislation is in the public interest. Better, in my judgment, for courts to do the best they can, interpreting enactments in a context bounded by enumerated powers and fundamental rights.

But let's put aside my doubts for a minute and go with your account. With respect to Lopez and Morrison, here's a question: Why shouldn't we think that, in light of your arguments about deference, costs, benefits, and skewing, these are cases where "second guessing" would be inappropriate, because they involve enactments and contexts where there is a risk that Congress has not appropriately balanced the constitutionally relevant costs and benefits? After all, the "benefits" of a federalism / enumerated-powers constitutional structure are not always appreciated by Congress (or state legislatures) and the political upsides of symbolic federal legislation or regulatory spending will often be more obvious. So, maybe the Chief Justice does agree with you (and maybe you understand his approach better than I do)! Maybe his expressed insistence on enforcing the Constitution's structural features, and on policing what he regards as the bounds of Congress's Article I powers in cases like Lopez and Morrison, reflects his rejection of the old idea that the political process can be trusted to take care of federalism values, and his belief that the deference that might ordinarily be due to legislatures cannot be safely indulged when the temptations to disregard Article I are so great?

Roosevelt: 3/3/05, 09:59 PM
I'm willing to agree to disagree on what the Lochner Court was doing. I'll offer one more observation in defense of my suggested approach to Due Process: I think it's better than the alternatives. The two leading candidates in the cases are the freewheeling Casey-style analysis, which seems to determine whether something is a fundamental right by inquiring into its relation to one's definition of the "concept of existence, of meaning, of the universe, and of the mystery of life," and the narrow, historically-focused approach the Chief articulated in Glucksberg, which requires a tradition of recognizing the asserted right.

I'm not happy with either of these. The Casey approach seems unbounded and of dubious legitimacy, while the Glucksberg one is unduly narrow. I think that rather than asking whether an asserted right is fundamental in some uniquely constitutional sense, we can ask whether the interest is important, and whether there are reasons to doubt the legislature's cost-benefit balancing. I think that both of these are questions judges can answer—or at least, that they can answer better than whether an unenumerated right is fundamental. The second is really John Hart Ely's idea and one of the persistent criticisms is that it can't be answered in an objective way. But very few legal questions can be answered objectively and I think that political power is something judges can assess more readily than fundamentality.

Turning to Lopez and Morrison, my first response is that they don't fit my model because there is no federalism-oriented cost-benefit restraint on exercises of the commerce power in the way that I see the Due Process clause as imposing a public interest cost-benefit constraint on the state police power. But my second is that I think you're right in an important sense. (Again, this is going to be condensed, and I apologize if it's unclear.) After the 17th Amendment, as Justice Souter's Morrison dissent observed, it's predictable that there will be an upsurge in unnecessary federal legislation. That's exactly the sort of thing that would justify some form of heightened scrutiny—if we thought that unnecessary or symbolic legislation was actually beyond the Commerce power. Justice Souter's position was that it was not. I can see an argument that it is—if you give weight to the discussion of pretext in McCulloch, you might well say, if Congress invokes its power under the Necessary and Proper Clause to regulate some activity as a means to regulate interstate commerce, that regulation is only "proper" if the purpose actually is to regulate commerce. If you think that pretextual legislation falls outside the commerce power, the 17th Amendment might very well suggest some form of heightened scrutiny.

So I'm willing to concede that the pre-Lopez "do whatever you want" use of the commerce power was problematic. The argument for deference to commerce clause legislation relied in part on legislative competence in resolving economic questions and in part on the idea that Congress, composed of state representatives, would have the appropriate incentives in evaluating state interests. But the competence was not always employed, and the political safeguards of federalism look less impressive after the 17th Amendment. So some sort of judicial review designed to smoke out pretext, or to ensure that Congress had actually used its institutional competence, or considered federalism, would make sense to me. But Lopez and Morrison seem to give the most weight to whether the regulated activity is economic or noneconomic. That quasi-categorical limit makes less sense; the distinction is not obviously related to whether the law is necessary to protect interstate commerce, or whether it undervalues federalist concerns. I think the Court came up with it in part because it believed that it needed to find judicially-enforceable limits, rather than a way to make Congress more likely to respect limits that are not directly judicially enforced. And that belief is what I attribute to the idea that the Constitution doesn't prohibit anything the Court won't strike down.

Thanks for doing this with me—it's been both fun and enlightening.

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Garnett: 3/4/05, 11:55 AM
Thanks so much for the enlightening and enjoyable conversation this week. I should say, though, that I cannot help worrying—particularly in light of your latest post׫that you and I have identified far too many points of agreement for this series of exchanges to count as a "debate"! I bet our friends at Legal Affairs were hoping for more discord. We agree, for example, that Justice Kennedy's self-important inquiries into the "mystery of life" are not likely to be much help in understanding and applying the Due Process Clause. We share doubts about the political safeguards of federalism. We both suspect that the economic v. non-economic distinction in the Lopez case reflects primarily the "Federalism Five's" desire for a judicially manageable line. And so on.

I appreciate the way you raised the question of "pretext" and the Necessary and Proper Clause. I know we have not touched on the matter this week, but I can't help thinking that, for those who value federalism and enumerated-powers principles, the Rehnquist Court's failure to do much of anything about the so-called Spending Power and/or the "Sweeping Clause" is a real disappointment. I think it was Professor Tushnet who noted that all the tumult about the "Rehnquist Revolution" in federalism is hard to take too seriously in light of this failure. Hardly anyone talks about the Court's decision last year in the Sabri case (where the Justices gave the back of the hand to enumerated-powers arguments against a particular federal bribery statute) but, for me, it was a big loss. Someday, I'd welcome your views on the matter: Is the contemporary consensus correct that (a) Congress can spend money on whatever (pretty much) it wants and, therefore (b) Congress can enact all criminal laws thought "necessary" to protect its interest in the "integrity" of the money it spends?

I'll end by respectfully disagreeing that the Glucksberg approach—that is, asking whether an asserted right is fundamental or deeply rooted in our traditions before engaging in more than rational-basis review under the Due Process Clause—is "unduly" narrow. True, it is more narrow than the Casey approach, and more narrow than your cost-benefit approach, but I'm not sure that this means it is too narrow. I want to say—and here, you will rightly charge, I am invoking "high politics"—that I understand democratic commitments and values to require more than judicial findings that a burdened interest is "important" and that there are "reasons to doubt" the legislature's balancing to trigger second-guessing of an enactment's wisdom, let alone its permissibility. You say that "political power is something that judges can assess more readily than fundamentality," but I'm not so sure. In any event, I would probably come at things a bit differently, and emphasize that it is precisely because inquiries into an asserted rights "roots in tradition" will (or should) have a disciplining, humbling effect on judges (who should know, if they are self-aware, that the inquiry is a tough one), that I prefer the tradition-based approach.

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