Live by the judicial decision, die by the judicial decision

Largely unable to persuade in the court of public opinion, progressives have spent the last five decades imposing their eschaton-immanentizing worldview on the rest of us through activist courts of the third-branch, impervious-to-democratic-impulse type. The problem with that strategy of legal subjugation is that the courts do not always cooperate.

Yesterday the Supreme Court decided (rightly, in my view) that the Second Amendment secures to individual, private citizens the right to bear arms. (See Ed Whelan's helpful summary, here.) And a million liberal lawyers groaned audibly.

Kennedy's disregard for the meaning of words

Justice Kennedy is at it again. Writing for a 5-4 majority Kennedy today announced that the death penalty may not be imposed upon those who rape children. The natural repugnance decent people feel for child rapists is borne not out of any defect of reason but rather out of an intuitive understanding that child rape is a horrible, awful, indefensible, inexplicably depraved act. Justice Kennedy regards that intuition with contempt.

Kennedy is equally contemptuous of the rule of law and the meaning of words. According to the AP report (I have not yet read the decision), Kennedy reasoned, "The death penalty is not a proportional punishment for the rape of a child." However, the U.S. Constitution contains no requirement that punishment be proportional. Instead, it prohibits cruel and unusual punishment. If execution is not cruel and unusual for a murderer, nothing in logic suggests that it would be cruel or unusual for a child rapist. But in Justice Kennedy's world, in which we are all voiceless subjects, words have no meaning.

Supreme Court Roundup

Having been on vacation for two weeks, I missed entirely an annual June tradition. Each year about this time the justices of the United States Supreme Court hand down from on high tablets of stone containing enlightened pronouncements on the state of American law. Some of these pronouncements are sensible, coherent, and foundational to ordered liberty. These tend to be written by Chief Justice Roberts or Justices Scalia, Thomas, or Alito.

Other pronouncements are written by Justices Kennedy, Ginsburg, Stevens, Breyer, or Souter. These tend to be destructive of the rule of law, inconsistent, breathtakingly dismissive of common sense and the meaning of words, and coherent only to mainstream media commentators and liberal law professors.

Into the latter categorty falls last week's Boumediene decision. NRO has an excellent summary of that disastrous judicial event.

I have not yet read today's Dada decision. And Matthew Franck's handy Kennedy Rule, useful for determining whether a SCOTUS case was wrongly decided, does not pertain because the court did not in Dada declare anything unconstitutional. However, it is worth noting that Kennedy wrote the majority opinion in Dada on behalf of Ginsburg, Stevens, Breyer, and Souter. Scalia, Roberts, Thomas, and Alito dissent.

I repeat that I have not yet read the decision. It is possible that the majority correctly decided Dada. Even a broken clock is right twice a day.

Justice Hillary

This is absolutely terrifying:

If Barack Obama is elected president, mutual friends say the best course for Hillary Clinton might be nomination to the U.S. Supreme Court rather than staying in the Senate.

Clinton is also talked about as suitable for secretary of state in an Obama administration. The consensus among her friends is that she would not be content forging a lifetime career in the Senate, as Sen. Edward M. Kennedy did after he lost the 1980 presidential nomination.

A footnote: The last confirmed Supreme Court nominee without prior judicial experience was Lewis Powell, a prestigious attorney from Richmond, Va., named by President Richard M. Nixon in 1971. No high court selection has had so modest a legal background as Clinton since President John F. Kennedy named football star Byron (Whizzer) White in 1962.

Of course, it is terrifying because Hillary is an outright liberal politician. The Supreme Court is supposed to be devoid of politics. To date, the left has at least had the decency to pretend to nominate non-political judges. I suppose there would be one commendable thing about a Hillary nomination: the left would finally be admitting that they see the Supreme Court as an extension of the legislature where they need dutiful liberals to legislative their agenda from the bench.

The Utility Infielder of Constitutional Jurisprudence

Over at Volokh Conspiracy, Orin Kerr points out the affinity that Justice Kennedy, indisputably the most influential member of the Court at the moment, has for the word "dignity." Dignity has become an all-purpose purpose for state action, something like a utility infielder for constitutional justification. Why does the Court prohibit states from criminalizing sodomy? To protect the putative "dignity" of autonomously-chosen homosexual relationships. Why are States entitled to sovereign immunity from lawsuits by their citizens? To protect the States' "dignity."

One derives the impression that Kennedy (and those Justices trying to secure Kennedy's swing vote) employ the word "dignity" whenever they can find no articulable justification for their decision. So, for example, in Lawrence v. Texas the Court struck down a criminal prohibition against sodomy. That decision served no purpose other than elevating homosexual intimacy to moral equivalence with conjugal monogamy. But the Court could not say that it was lending the approbation of the United States government to homosexual intimacy. So Justice Kennedy, writing for the majority, threw in the word "dignity." That gave homosexual relationships the appearance of inalienable sanctity, much like life and liberty, without precisely identifying homosexual sex as the interest that the Court was acting to protect.

Kerr's interlocutor, Michael Dorf (a former Kennedy clerk, incidentally), also criticizes the Court's profligacy with the word "dignity." He finds puzzling the Court's concern, stated in last week's death penalty decision, for the dignity of the lethal injection procedure. Fair enough. But then Dorf wanders off into the ridiculous. He asserts that the lethal injection case "bears an uncomfortable resemblance" to last term's Gonzales v. Carhart decision, in which the Court upheld Congress' ban on partial-birth abortion. The legitimate state interest in that case was respect for the dignity of human life. Dorf continues, "The Court in Gonzales v. Carhart validated the federal government's aesthetic interest in dignity, at the potential expense of women's health... ."

This short assertion, not even Dorf's entire sentence, contains not one but two fallacies. First, promoting respect for the inherent value of human life is not merely an aesthetic interest. Aesthetics are important interests, which the state may rightly promote. But human life is valuable in and of itself. This is what moral and legal philosophers mean when they say that human life has intrinsic value. It is an end, a purpose, an interest, all of its own and even when it serves no additional purpose.

Second (and here Dorf is guilty of outright prevarication), nothing anywhere in the public record demonstrates to the least degree that the ban on partial-birth abortions jeopardizes any cognizable interests of women, or even has the potential to do so. Congress made express findings on this point, and the evidence overwhelmingly supports those findings.

Furthermore, Justice Kennedy (again), writing for the majority in Gonzales v. Carhart, expressly invited abortion proponents to bring specific challenges to the ban based upon particular cases. If the partial-birth abortion ban impedes a woman's access to needed health care, threatens her life or health in any way, or otherwise infringes upon any of her constitutionally-protected rights, nothing in the Gonzales v. Carhart decision prevents her abortionist doctor (who bears the penalties for performing the procedure) from bringing a claim challenging the ban as applied to her. As Ed Whelan recently pointed out, one year after the Gonzales v. Carhart decision, not one single such claim has appeared anywhere in this immense nation.

In other words, abortion proponents lied through their teeth. And Dorf continues to do so, shamelessly.

All of this suggests that the word "dignity" should not be used for all-purpose utility work in the Court's lexicon. Instead, the word has particular usefulness in service to the dignity of human life. Kerr and Dorf rightly chide the Court for using the word too freely. But we ought not throw the baby out with the bath water. The inherent dignity of human life is a very important state interest. And in Gonzales v. Carhart, at least, Justice Kennedy rightly called our attention to a just cause.

Babies as punishment

"Wow" is right. The depravity of mind that enables one to think of babies as punishment defies comprehension. I have a daughter. She is still a baby. That anyone could consider her or any other young child a punishment is astonishing, even shocking.

Before Roe v. Wade, was not the universal sentiment that human babies -- vulnerable, innocent persons who, if allowed to develop, will grow into sentient, self-sufficient persons -- are blessings? At the very least, were not those who thought of babies as punishments inflicted upon the sexually active too ashamed to say so publicly?

Yet after 35 years of living in a post-Roe world, an appalling sentiment that was once taboo has crossed the lips of a major candidate for President. This is the awesome power of the United States Supreme Court to shape culture, too often employed for evil ends.

Barack Obama has some 'splainin' to do. But don't expect a comprehensible reply from him. His reasoning is borne out of more than three decades of incomprehensible judicial activism.

Ours is still better

The Supreme Court's Medellin decision continues to draw comment. Ilya Somin today explains why, leaving aside whether the decision is right as a matter of constitutional interpretation, Medellin makes good law.

Somin argues persuasively that, for all its flaws, American criminal and procedural law is generally enacted through legitimate and largely democratic processes and is generally correct. Decisions of the International Court of Justice, by contrast, are usually the product of deliberation by authoritarian, fascist, and undemocratic regimes. And, on balance, American courts get the law right more often than does the ICJ.

No argument from this corner.

More on Medellin; Breyer's conversion

Opinio Juris is holding an "Insta-Symposium" on the Medellin decision of the United States Supreme Court, now only a few hours old. (The blogosphere is a place full of wonders and marvels.) Volokh and Bench Memos (here, here, and here) weigh in. The holding of the decision is somewhat complicated, but can basically be summarized thus: a judgment by the International Court of Justice (ICJ) against the United States, entered under the authority of the Vienna Convention, to which the United States is a signatory, is not in itself binding legal authority in (Texas) state courts.

I defer to the doctrinal analyses by persons more expert in this area than I. (Ed Whelan calls the decision "a significant victory for American citizens and for representative self-government.") However, one addtional observation seem edifying.

In a long and tedious dissent, Justice Breyer argues that the judgment of the ICJ is self-executing because the Supremacy Clause of Article VI says so. The clause says no such thing. Instead, it provides that the US Constitution, federal laws enacted pursuant to the Constitution, and lawful treaties "shall be the supreme law of the land" and that "the judges in every state shall be bound thereby." In his majority opinion, the Chief explains why the Supremacy Clause does not render a judgment by the ICJ self-executing in state courts.

But what strikes the observant reader from Breyer's dissent is his conclusion. "In sum, a strong line of precedent, likely reflecting the views of the Founders, indicates that the treaty provisions before us and the judgment of the International Court of Justice address themselves to the Judicial Branch and consequently are self-executing." (emphasis added) Halleluiah and pass the Scalia bobble-head dolls! Justice Breyer has discovered the virtues of original meaning!

The conservative legal revolution has managed to turn the tide. We're all originalists now.

A big win for federalism

As I was posting this morning about the successes of the conservative legal movement, the Supreme Court was illustrating the point with its decision in Medellin v. Texas. Jonathan Adler briefly sums things up over at Volokh.

Pre-emption is not my area of expertise, but for several reasons this decision is a treasure trove for legal scholars of all disciplines. Also, the case appears on first read to reverse the unfortunate tendency of the Court in recent years to pre-empt American law with the law of foreign jurisdictions. So, time permitting I will post on this later today. Stay tuned...

Missouri and the problem with Kelo

The news accounts today make yesterday's Missouri Supreme Court eminent domain decision seem more momentous than it actually was. At issue was whether a state statute permitting a charter city to exercise the power of eminent domain violated the Missouri Constitution. The court held that the statute was constitutionally valid. The court punted on the factual question whether the property taken was blighted and the legal question whether the property was impermissibly taken for a public use. For this reason, one ought not read the decision as a dramatic incursion into private property protection.

However, the decision is noteworthy for at least one reason. The court quotes from the Missouri constitution, which authorizes municipalities to take private property for any of enumerated "purposes" that serve the "public interest," among which are the redevelopment of "substandard or insanitary areas." The court then notes in a footnote that it is not deciding the question whether the taking at issue was accomplished for a "public purpose" consistent with the Missouri constitution.

The prescient reader will note that this provision of the Missouri consitution is far more expansive than the text of the Fifth Amendment to the United States Constitution, which permits governments to take private property only for "public use." In its infamous 2005 Kelo decision, authorizing the taking of private property for private use, a majority of SCOTUS re-wrote the Fifth Amendment by judicial fiat to permit takings for any public purpose. The majority attempted to assuage the reader by assuring that states would adopt more restrictive constitutional limitations on the exercise of eminent domain power. So far, that has not come to pass. Indeed, states hungry for tax revenues have little incentive to respect private property that generates less tax revenue than it might otherwise. This is one of the problems against which the Fifth Amendment was supposed to guard.

Kelo was a shameworthy exercise in judicial activism of the worst kind: the kind that undermines the rule of law. As more states become more licentious in their land-grabbing practices in this post-Kelo world, Americans would do well to consider the implications of electing a President who would put liberal activists like Justices Stephens, Kennedy, Souter, Breyer, and Ginsburg, all of whom voted in the majority in Kelo, on the Court.

A disasterous idea (we need Thomas on the Court)

Clarence Thomas is a brilliant legal mind, a conservative with utmost regard for the Constitution and a wonderful person the likes of which would never be approved for a seat on the Supreme Court by today's liberal Senate. For that reason, he must remain on the court. Speculation about him as a Vice Presidential pick for a ticket that has at best a 50 percent shot of winning should remain just that; idle speculation.

1st amendment and respect for the text

Titus makes an interesting point. That a justice who ignores the First Amendment would also find in the constitution a right to kill the unborn seems like a logical inference. In both instances, the justice would be ignoring the text of the constitution and substituting his or her own (liberal) policy preferences. So there is perhaps reason to believe that a justice who passes McCain's litmus test on McCain-Feingold (which he denies any intention to use, for what it's worth) would also leave originalists and conservatives out to dry on abortion, same-sex marriage, and other issues.

So is there an actual correlation between a restrictive view of the First Amendment speech clause and an expansive view of the Fourteenth Amendment due process clause, on which the rights of abortion and sodomy are supposed to rest? Actually, yes.

The five justices who upheld portions of McCain-Feingold in McConnell v. F.E.C.: Breyer, Ginsburg, O'Connor, Souter, Stevens. The four who voted against M-F: Rehnquist, Kennedy, Scalia, Thomas.

The four justices who dissented in last term's Gonzales v. Carhart decision, in which the Court upheld the federal partial-birth abortion ban: Breyer, Ginsburg, Souter, Stevens. The five who voted to uphold the ban: Roberts, Alito, Kennedy, Scalia, and Thomas. Substitute Rehnquist for Roberts and the correlation becomes clearer. Note that O'Connor voted in the plurality in Casey v. Planned Parenthood, then substitute O'Connor for Alito, and the correlation is clearer still. (And note how important the Alito confirmation was.)

The correlation is not direct, of course. Kennedy wrote the infamous plurality opinion in Casey and the majority opinion in Lawrence v. Texas, creating a right to homosexual sodomy. But Kennedy is surely a special case, being as inconsistent as he is in his jurisprudence.

Big Mac on judges

Bench Memos is ablaze today with a conflagration over John McCain's privately-expressed opinion that Justice Alito was a bad pick for SCOTUS because he "wears his conservatism on his sleeve." The reader bears in mind that McCain is the same Senator who, with Russ Feingold, sponsored the most effective curb on political speech to come out of Congress in decades. So, one reasonable interpretation of "wears his conservatism on his sleeve" might be "thinks that the First Amendment means what it says."

Whatever McCain meant by the statement, the statement is surely troubling. If McCain means that Alito is a judicial activist who substitutes conservative policy preferences for considered legal reasoning then the statement is simply wrong as a factual matter. This calls McCain's veracity into question. This is not to say that McCain lied. Perhaps McCain misrepresented the truth because he wasn't paying attention during the Alito confirmation hearings. (Was he asleep, bored, playing video games? I was 2000 miles from the Capitol yet I watched with intense interest.)

If McCain intended to equate originalism with conservatism, then we have a real problem on our hands, as Wendy Long explains.

Roe at thirty-five

Meanwhile, our own Roe v. Wade is now 35 years old and shows no signs of ill health. Nearly fifty million unborn human persons have suffered the ultimate indignity since January 22, 1973. Even as the culture of life advances, casualties continue. It is high time to euthanize the Roe decision.

UPDATE (Titus): And how do our abortion loving friends at Planned Parenthood plan to mark the anniversary? This from today's Wall Street Journal:

WASHINGTON -- For the first time, abortion-rights advocate Planned Parenthood is launching a major effort to elect pro-abortion-rights candidates to Congress and the White House in November.

The nation's largest reproductive-health-care provider plans to spend $10 million in hopes of persuading one million people to vote for abortion-rights candidates in the 2008 election. Planned Parenthood will roll out its election plans today to mark the 35th anniversary of the Supreme Court decision in Roe v. Wade that made abortion legal.

Justice Stevens' alarming footnote

Ed Whelan commented last week on Justice Ginsburg's dissent in John R. Sand & Gravel Co. v. United States. As Whelan rightly pointed out, Ginsburg demonstrates some antipathy to the doctrine of stare decisis. Her opinion is merely the most recent in a long line of exhibits demonstrating that liberal judges love stare decisis, except when they don't.

Justice Stevens' dissent in this otherwise-unremarkable decision bears mention for a slightly different reason. While explaining in a footnote why he, like Justice Ginsburg, believes that the Court should not wait for Congress to amend the Court of Federal Claims statute of limitations, he offers this revealing tidbit:

[T]he logic of the “special force” of stare decisis in the statutory context is that “Congress remains free to alter what we have done” … . But the amendment of an obscure statutory provision is not a high priority for a busy Congress, and we should remain mindful that enactment of legislation is by no means a cost-free enterprise.

(Citation omitted) In other words, where Congress has not acted, the Court is free to step in and act like a junior varsity Congress, re-writing legislation as it sees fit, as long as the justices are able to divine that Congress would have acted if it were not so busy or cash-strapped.

This must be a cheery thought for a liberal activist judge. Think of the possibilities! The House is dragging its feet on the Democrats' latest proposed tax hike? Can't get an immigration amnesty through the Senate? Well, you know how much Congress has on its plate. Send the bills across the street to SCOTUS. Justices Ginsburg and Stevens will happily give them the force of law without having to bother with that whole time- and expense-consuming legislative process.

The capacity of liberals to invent new justifications for subverting the democratic process never ceases to amaze.