Cato Supreme Court Review 2003-2004.

Vol. 15 No.6 (June 2005), pp.546-551

CATO SUPREME COURT REVIEW 2003-2004, by Mark K. Moller (ed). Washington, DC: Cato Institute, 2004. 536pp. Paper. $15.00. ISBN: 1-930865-58-9

Reviewed by David K. Ryden, Department of Political Science, Hope College. E-mail: ryden@hope.edu .

I am penning this review of the CATO SUPREME COURT REVIEW 2003-04 shortly after Lawrence Tribe has announced he will forego further editions of his constitutional law textbook. His stated reason – the Court’s work is so contradictory and lacking in grand theory or cohering principle as to render the writing of a lucid, intelligible text impossible. Indeed, the Rehnquist Court is defined by its very lack of jurisprudential definition, defying description or label as consistency eludes it. Whether the topic at hand is church-state relations, federalism, criminal procedural protections, redistricting, or any number of other issues, the Court’s output is notable for the absence of a discernible guiding principle of interpretation. As editor Mark Moller rhetorically queries in this collection’s Foreword, one wonders whether anything this uncertain deserves to be called law.

In its broad sweep, this book is a refreshing antidote to the stumbling, uncertain, muddled jurisprudence at the heart of so much of the Supreme Court’s work these days. The libertarian think tank has solicited a varied array of contributors to critique the High Court’s 2003-04 term. In the process, the book gives the reader a striking illustration of what constitutional law might look like if it did adhere to a clear set of animating first principles—in this case “individual liberty, . . . property rights; federalism; and a government of . . . limited powers” (p.1). The result is a principled, consistent, coherent, overarching decision making philosophy applied in a wide assortment of legal contexts. Even for those who may disagree with that philosophy (as I would guess the majority of this section’s members probably do), this volume should facilitate a much needed discussion over whether and to what extent the Court’s work should grow out of a comprehensive judicial ideology or philosophy. One need not be a dyed-in-the-wool libertarian to appreciate the value in this enterprise, or to find much of value in this volume.

One preliminary cautionary note: The volume is intended to render the Court’s work accessible to a diverse audience, written for “citizens interested in the Constitution and the Court’s interpretation of it” (p.1). I question whether the contributors succeeded on that front. The chapters assume substantial familiarity with constitutional analysis, and as a rule are exhaustive in their respective treatments. While this can make the book satisfying for the serious student of constitutionalism, it will challenge the casual reader. The book can be tough slogging at times. Nevertheless, there are rewards for those willing to do the slogging.

Any review of an edited collection is likely to reveal the idiosyncratic interests and [*547] tastes of the reviewer. The chapters I found most interesting were those implicating the general jurisprudential affliction plaguing the Court that I cite in my opening paragraph. Vikram David Amar does so within the framework of CHENEY v. U.S. and questions of executive privilege as they apply to the office of the vice president. Without detracting from Amar’s fine historical analysis of the substantive issue, I found his most significant contribution to be his fleshing out of an important, but dispiriting, overarching theme of the Court in 2003-04, of which CHENEY is just one example – namely the Court’s “deciding not to decide” (p.185). In numerous cases, including CHENEY, the Court’s ultra-cautious collective judicial temperament produced results that failed to resolve, clarify, or otherwise meaningfully elucidate significant open questions of constitutional law. In NEWDOW, the pledge of allegiance case, the Court invoked technical standing objections to sidestep the merits. In LOCKE v. DAVEY, it similarly ignored the elephant in the room of establishment clause jurisprudence, namely the constitutional validity of the Blaine amendments found in most state constitutions. In VIETH, the partisan redistricting case from Pennylvania, the Court “simply put off the question whether it will ever police overly zealous political gerrymandering” (p.189). In the enemy combatant cases, the Court determined that Guantanamo prisoners in theory had some undefined right to contest their detention but offered no assistance in determining what those rights might include. In his analysis of CHENEY, Amar delineates numerous inconsistencies in the executive privilege precedents, which the Court could and should have corrected in CHENEY, but did not. As a result, the law of executive privilege remains in a state of utter confusion.

The Court’s minimalism – its tendency to issue fact specific, narrowly drawn opinions with limited precedential application – has been a subject of much scholarly discussion, and even praise (e.g., Sunstein 1999). I find it a troubling development, of which the Court’s “deciding not to decide” is a related judicial impulse. Both indicate an aversion to decisiveness, distaste for actually laying down legal principles of some breadth that might illuminate law or guide legal actors in the future. I wish Amar had made more of an effort to reflect upon the general significance of these corollary trends. One would hope that, with its ever-contracting workload and docket, the Court’s time and resources are invested in cases where it is able and willing to shape a reasonably comprehensible body of constitutional law. At first glance, the Justices’ minimalist inclinations suggest an admirable judicial modesty and perhaps even recognition of the Court’s proper place in a governmental structure of separated powers. Sunstein credits the Court with an intentional ambiguity that is inherently democratic, pushing tough issues back into the legislative arena where they belong. I am skeptical. Intuitively, it strikes me that the Court’s indecision is more likely to have a chilling affect on a range of other actors – the lower courts, Congress and state legislatures, private parties – whose behavior and actions derive from their ability to know the law. Ironically, less may be more in terms of judicial power; by wielding its power tentatively, the Court may gain greater control over the [*548] other branches and elevate its power. But it comes at the expense of a rule of law that is knowable, understandable, and a serviceable guide to future conduct.

In what I found to be easily the most provocative and creative chapter in the book, Jonathan Turley makes a similar argument – that the Court’s decisions fail the basic test of principled, predictable rule of law. He does so within the framework of the enemy combatant cases, using them to analogize modern constitutional decision making to impressionistic art. Turley describes the rise of the impressionistic school of constitutional interpretation, as legal formalism and structure have yielded to abstraction and creative translation, what Turley terms a “constitutional surreality” (p.72). The greatest connoisseurs/practitioners of this legal abstractionism, of course, are the legal academy itself. Anyone who might actually look for textual meaning or guidance is sure to suffer their scorn and derision. The Supreme Court, more impressionistic than outright abstract, exhibits the same tendencies in less extreme form. In the HAMDI case, master impressionist Justice O’Connor takes what should be a transparently clear provision (the Suspension Clause), and views it “through the lens of experience and contemporary realities, distorting and reproducing it in a new interpretive form” (p.91). Turley calls O’Connor a “faux-impressionist” whose insatiable taste for balancing and reasonableness is not aimed at truth or substantive correctness, as one would expect from a true artistic impressionist. Rather it is the tool of convenience, enabling her to reach her preferred outcome. In the hands of O’Connor and her fellow impressionists, the Constitution itself is “mere object for extrapolation and reinvention,” as the Court relies upon elastic balancing tests to reach results so prosaic and opportunistic as to be unintelligible in practice or application (p.97). After analyzing PADILLA and RASUL in a similar vein, Turley concludes that we are no closer to a discernible understanding of fundamentally important concepts implicated by the anti-terrorism cases – separation of powers, the role of the courts, and executive authority. The result – at a time when the government is obsessed with national security and anti-terrorism, and hence the need for clear constitutional markers is greatest – is a “vacuum of authority and confusion” (p.114). Turley attributes this legal impressionism to the Court’s dysfunctional dynamic in personnel and personalities that deprives it of the ability to offer much beyond minimalist pronouncements. Certainly the melding of this dynamic with the especially pronounced impressionist tendencies of the key swing Justice (O’Connor) amplifies the murky minimalism of the Court, to ill effect. In impressionistic art, the satisfaction is heightened when one brings her personal emotions, experiences, and interpretation to the work. But the consequence of the legal version of impressionism is hardly benign; rather it is the loss of knowable, applicable, principled rule of law.

Turley’s piece is one of three essays devoted to the anti-terrorism/enemy combatant cases that were at the center of the Court’s 2003-04 term. Casual followers of these cases, for whom the legal issues might blur together, will benefit greatly from Timothy Lynch’s [*549] chapter, entitled “Power and Liberty in Wartime.” Lynch catalogues the distinctive rights that designated “enemy combatants” might have in varying circumstances, depending upon (1) the detainees’ status as American citizen, illegal immigrant, or nonresident alien, (2) whether capture took place in America or abroad, and (3) the punishment sought by the government. I found the straightforward analysis especially helpful in thinking clearly about the host of issues raised in these cases.

Robert Levy, in an excellent essay examining 11th Amendment sovereign immunity for state governments, extends Turley’s portrayal of a Court freed from constitutional text. He demonstrates that this is an equal opportunity Court, whose conservatives are as capable as their more liberal colleagues of “distending” and “distorting” to reach conclusions “wholly unleashed from . . . crystal-clear text”(p.161). Levy eviscerates the string of decisions extending sovereign immunity to state governments as based on a facially flawed reading of the 11th amendment. He suggests, rightly in my mind, a conservative bloc increasingly frustrated with boundless congressional power, wielded in blatant disregard of the limits of enumerated powers. But the conservatives’ attempts to constrain that power through sovereign immunity have only insulated governments from the legitimate claims of individual citizens. Levy exhorts the Court to do right the right way, by requiring that every federal law have “an obvious and direct relationship to the specific constitutional power . . . [it] purports to execute.” Of course, this would mean a “frontal assault on overarching central government – confining Congress to those functions that are limited by and enumerated in the Constitution” (p.184).

In his contribution, Mark Moller anticipates an issue that has received much attention recently, the appropriateness of American judges looking to international legal norms in deciding constitutional issues. Moller parses SOSA v. ALVAREZ-MACHAIN, the Alien Tort Statute (ATS) of 1789, and the Constitution, concluding that Congress rather than the courts is the preferred expositor of international law. Separation of powers and the limited jurisdiction of the courts compel explicit statutory authorization and direction before judges affirmatively render determinations under international law. Moller is highly critical of the 9-0 SOSA decision, in which the Court dusted off the long-dormant ATS to decide Alvarev-Machain’s claims on the basis of international law. Moller bemoans the weakening of the Court’s “fidelity to the rule of law” (p.237), worrying that the decision will “give impetus to judicial use of international law to construe the content of substantive constitutional . . . rights” (p.240). Those fears were realized this term in the ROPER v. SIMMONS death penalty case. Unfortunately, Justice Anthony Kennedy’s reference to international norms in SIMMONS was every bit as muddled, ill-defined, and unbounded as Moller’s argument in this chapter is clear, logical, and impressive.

Other essays in the book do a fine job exploring campaign finance reform (MCCONNELL v. FEC), Congress’ ongoing struggles to regulate the internet (ASHCROFT v. ACLU II), the establishment clause (LOCKE v. DAVEY), [*550] and the Court’s refusal to take up a series of commerce clause challenges to environmental regulation. Finally, a trio of essays examine decisions pertaining to the constitutional procedural protections of criminal suspects.

Two aspects about the book raise questions of the nature and effectiveness of a broad-based constitutional critique such as this. One is the book’s tone. A lone essay on the confrontation clause gives the Court credit for getting it right. Otherwise, the inexorable drumbeat of criticism borders on monotony. This is especially true when the arguments are akin to tilting at windmills, as libertarian critique is prone to do. For example, Gary Lawson dissects a relatively minor case (SABRI v. US) to argue, convincingly, that the federal spending power is unmoored from the constitutional constraints of the “necessary and proper” clause. But he spends countless pages on an argument he openly admits that no lawyer in his right mind would make before the Supreme Court. Lawson may be correct in asserting that the Court’s work in this area has been “egregiously” wrong for 75 years. But at some point, it arguably becomes self-indulgent to keep fighting battles that are so clearly lost.

The book’s other frustrating aspect is the tendency to state the case in absolutist terms. I have often thought purer forms of libertarian thought would be quite persuasive if only we were beginning the task of government formation anew. But the arguments are too easily dismissed when they ignore historical, social, and political developments, and the legitimate demands upon government engendered by those developments. This mindset is most evident in the analysis of criminal procedural cases. To illustrate, this volume contains two broadsides on the Supreme Court’s approval of what most would consider reasonable, common sense police practices. Tracey Maclin attacks PRINGLE, in which the Court upheld a finding of probable cause to arrest all three men in a car where drugs and cash were found after none of the three would provide any information (Maclin contends that “particularized probable cause” is needed to arrest each suspect). Likewise Christine Klein derides a unanimous decision in HIIBEL, validating the arrest of an individual who refused to give the police his name. Both essays are well written and forcefully argued. But they are indicative of a tendency to elevate individual liberty to the exclusion of a consideration of competing constitutional values. Neither Maclin nor Klein gives much thought to the practical impact of their arguments, which would seemingly place impossible burdens on police officers’ basic investigatory functions.

I am not unsympathetic to much of the libertarian critique. But the arguments would have more force if tempered by an acknowledgement of other constitutional values at stake. In the end, readers’ reactions to this book will depend in no small part on how they feel about the appropriateness of a comprehensive constitutional approach flowing from a single set of basic principles. It also highlights the practical challenge facing those who are deeply dissatisfied with the state of contemporary jurisprudence as to how best to move the constitutional law in the direction they prefer. [*551]

REFERENCES:

Sunstein, Cass R. 1999. ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT. Cambridge: Harvard University Press.

CASE REFERENCES:

ASHCROFT v. ACLU II, 124 S. Ct. 2783 (2004).

CHENEY v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, 124 S.Ct. 2576 (2004).

ELK GROVE UNIFIED SCHOOL DISTRICT v. NEWDOW, 542 U.S. 1 (2004).

HAMDI v. RUMSFELD, 124 S.Ct. 2633 (2004).

HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, 542 U.S. 177 (2004).

LOCKE v. DAVEY, 540 U.S. 712 (2004).

MARYLAND v. PRINGLE, 540 U.S. 366 (2003).

MCCONNELL v. FEC, 540 U.S. 93 (2003).

RASUL v. BUSH, 124 S.Ct. 2686 (2004).

ROPER v. SIMMONS, 540 U.S. 1160 (2004).

RUMSFELD v. PADILLA, 124 S.Ct. 2711 (2004).

SABRI v. US, 541 U.S. 600 (2004).

SOSA v. ALVAREZ-MACHAIN, 124 S.Ct. 2739 (2004).

VIETH v. JUBELIRER, 541 U.S. 267 (2004).

*************************************************