Wednesday, March 08, 2006

Sykes after Scalia

In preparing last night to talk in class about theological and legal approaches to abortion today, I got to read again Justice Scalia's dissent in Casey v. Planned Parenthood, the 1992 decision that reaffirmed, while somewhat modifying Roe v. Wade. It's an entertaining read, but one passage in particular is pertinent to the issues raised by Judge Sykes regarding the Wisconsin Supreme Court. If judges are going to second guess legislatures and substitute their policy judgments for that of the political branches, they will increasingly be seen as politicians and subjected to political pressures. Scalia notes that, since the U.S. Supreme Court has embarked on the project of finding fundamental "liberties" not expressly stated in the text of the Constitution, people have seen it in a different and more political light:

What makes all this relevant to the bothersome application of “ political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here-reading text and discerning our society's traditional understanding of that text-the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation **2885 ceremonies, Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value *1001 judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school-maybe better. If, indeed, the “ liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours

Good writing. Even better thinking.


Jay Bullock said...

the U.S. Supreme Court has embarked on the project of finding fundamental "liberties" not expressly stated in the text of the Constitution

I am not a lawyer--and you are!--but I was always under the impression that the ninth amendment (you know, the one that says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people") means that any "liberties" not expressly in the Constitution must be presumed to be there anyway, just not written out.

Madison (I think--it was one of the Federalists) went off on how there should be no rights or liberties listed specifically, since that would lead people to believe that any ones not listed just don't exist.

The right to privacy is, as Justice Ginsberg noted and Chief Justice Roberts concurred, hinted at in several places, like the third and fourth amendments. To say that the Roe court (or the Griswold court, or any other), then, invented the right to privacy is absurd. The right is not denied to us by its lack of inclusion in the Constitution, nor is it inconceivable to imagine that those writing the Constitution would have recoiled at the though of its being made explicit by courts later.

Remember, Rick, abortion was legal and not uncommon in the 1780s.

Conservatives have been decrying the "activist" court since at least Brown v. Board of Ed., when the court started forcing states, and the nation as a whole, to confront seriously, for the first time, that we are indeed all created equal.

Anonymous said...

I like the analogy to Scalia. Allow me to add one of my own that expresses similar frustration with the Court's current jurisprudence:
"What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?...
The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."
For the full context, this case can be found at 518 U.S. 668 (in dissent).

Rick Esenberg said...

Lawyers don't agree on any of this so why shouldn't you throw in your two cents?

The problem with the 9th is that, at the time it was enacted, the framers woere concerned about rights free of interference from the federal government. There isn't a huge history of it as an independent source of individual liberty.

The "hinting" argument is a more modest formulation of Douglas' belief that provisions that did not mention a generalized right of privacy created a "penumbra" from which there were "emanations" that made up a whole new right. I'd make a druggie joke, but its been done to death.

The right of "privacy" (a term which the Court has actually sort of abandoned) is really just the idea that we have unenumerated rights that it is up to courts to somehow discern with, really, no guidance at all.

The problem with that is that liberals may like it when the rights relate to abortion and various sexual practices. Conservatives may like it when it refers to rights of contract and property (as it did in the first part of the 20th century).

But how are unelected judges to choose and where is the authority for their choice?

There was a long history of criminalizing abortion before it became a constitutional right. Check out Rehnquist's dissent in Roe.

Brown was not an activist decision (although its rationale was, perhaps, not as strong as it could have beem). It was grounded in express textual authorization.