Rosen-Colored Glasses

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I'm a fan of Jeff Rosen's work on privacy (and even interviewed him about a year back) but dear sweet Jeebus is this New Republic piece about John Roberts from last week infuriating in about a dozen different ways—some minor, some major. Here are a few:

  • There's the requisite reference to "what some libertarian activists call the Constitution in Exile," which as Orin Kerr has argued pretty persuasively seems to be a term that appeared only in one book review by Judge Douglas Ginsburg and maybe in a few Ginsburg lectures since. Until Rosen and Cass Sunstein started pushing it as a rallying cry for the Great Libertarian Jurisprudential Conspiracy. Of course, there really are lots of conservative and libertarian legal thinkers who believe modern constitutional interpretation has gone off the rails, but none of the ones I know use the phrase, and it seems designed to obscure the differences between these thinkers by suggesting a more uniform program: the resurrection of the "exiled" Constitution.
  • There's this not-very-useful schema of "top down" vs. "bottom up" judges that makes it sound as though the main difference in jurisprudential approach is that the moderate judges Rosen approves care about paying attention to the facts of a case, while the originalist "extremists" he dislikes are just on some sort of autopilot. As he acknowledges later, of course, the real difference is that his moderates are more likely to give relatively greater weight to precedent and stare decisis, while originalists are more prepared discard it when it conflicts with their understanding of the text of the Constitution. To the extent that the former approach yields a larger number of fine distinctions to make, this produces the kind of "bottom up" attention to detail Rosen is talking about, but as a kind of epiphenomenon. Both sorts of judges, of course, are applying their own set of legal principles to sets of facts, and both will need to closely scrutinize fact patterns in their respective boundary cases; the moderates just have more of those boundary cases. Rosen's schema distorts what's actually going on.
  • Rosen uses the word "rigid" or "rigidly" four times in his opening paragraphs to characterize "top-down" judges. Except, here's the thing: The whole value of stare decisis, which Rosen wants to defend stronger adherence to, is precisely that it stabilizes expectations by fleshing out how the law will apply with greater precision than the broad terms of the Constitution alone do. Part of that value, obviously, comes from the greater nuance you can get out of a pile of decisions than from a short document, but it depends on those precedents being applied, yes, rigidly. Indeed, to the extent that being bound by past specific applications of constitutional provisions attenuates the leeway or ambiguity inherent in broad terms like "unreasonable search" or "cruel" or "establishment" or "equal protection," a good precedent-bound judge is going to find herself making much more "rigid" and mechanistic rulings than one who's trying to suss out how the 18th or 19th century understandings of those terms apply to contemporary cases.

NEXT: Lorax Revisionism

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  1. Nice comments, Julian. I found Sunstein’s article in the same issue similarly problematic, particularly in his division of legal philosophies seen on the bench in the past century (majoritarianism, perfectionism, minimalism, and fundamentalism).

  2. Point 1: Whoa, easy there big fella.

    Point 2: “As he acknowledges later, of course, the real difference is that his moderates are more likely to give relatively greater weight to precedent and stare decisis, while originalists are more prepared discard it when it conflicts with their understanding of the text of the Constitution.” Uh, no, these are two distinct points he makes.

    Some judges, like Thurgood Marshall or Clarence Thomas, are primarily motivated by the the opportunity to promote philosophical principles and reorder society into their vision of the good, and use the facts of specific cases to help them do that. Other justices, like Ruth Bader Ginsburg or Sandra Day O’Connor, are primarily motivated by the desire to settle cases fairly, and use judicial philosophies to help them do that. This is true of any government position, from cop to city planner to militay officer, and it’s silly, and oddly defensive, to assert that this continuum ceases to exist when one becomes a judge.

    Point 3: Stare decisis provides stability, that’s true. But that’s not all it does – it allows the judge to recognize the principles, values, and reasoning in the previous decisions and apply them to novel situations. Since there is a line of decisions from the founding to the president day to draw on, the “leap” between the reference material and the modern case is going to be smaller, thus providing a greater opportunity to craft a ruling in line with modern-day practices and norms. Seriously, Julian, are you trying to argue that an originalist philosophy is less constraining?

  3. I agree with a lot of the foregoing, with the exception of the following:

    Of course, there really are lots of conservative and libertarian legal thinkers who believe modern constitutional interpretation has gone off the rails, but none of the ones I know use the phrase [“Constitution In Exile”] …

    This persistent objection borders on silliness. Does it strike you as a valid criticism of Reagan that there was no one in the Soviet-era Kremlin who referred to the USSR as an “evil empire”?

  4. Well perhaps I’m an idealist, but here’s my view: the doctrine of stare decisis is a poor fit for a statutory or constitutional scheme. Obviously, in a common-law system, stare decisis is not only important, but in fact is the ONLY source of the law. But stare decisis in statutory/constitutional law merely acts to further judicial expansionism and the “dead hand” ego of judges.

    The U.S. Constitution is relatively easy to interpret, I believe. It’s basic structure, as well as the Ninth/Tenth Amendments, make it clear to me that any ambiguity in the meaning of a given provision must be interpreted to limit the powers of the feds, but not the rights of the states and people. In others words, if it is unclear from the text of the Constitution whether the Feds have the power to regulate X, Y or Z, then the answer is that they do not. Likewise, if it is unclear whether the Constitution limits a state’s sovereign right to do A, B or C, then it does not.

    Anything more than that is simply judicial imperialism.

  5. alkali:

    Err, Reagan wasn’t asserting that there were anyone in the 80’s Kremlin who referred to the Soviet Union as an “evil empire.” Rosen and Sunstein, apparently falsely, claim that there is a libertarian judicial movement that does use the term “Constitution in Exile” as part of their self-description.

    On the general topic: isn’t it rich that Rosen is such a defender of stare decisis after two generations of controversial rulings that went his way?

  6. Should the Old Man court have been contstrained by stare decisis? I’m all about stability if the stable state is the way I like it. I find myself less fond of precedent when I think it promotes tyranny. I kind of feel most people are the same.

    Precedent as a governing principle isn’t helpful for most important matters. It is a fine guideline obvious extensions of law to new cases. Is a dog’s nose illegal search? Okay. Does the commerce clause grant congress unlimited regulatory authority over all human activity? I don’t think so. That is fundamental.

    Too, there is the unfortunate tendency of court decisions to be intentionally so narrow as to be inapplicable in a broad sense, so the appeal to precedent in many cases is entirely inappropriate.

  7. Rosen and Sunstein, apparently falsely, claim that [A] there is a libertarian judicial movement [B] that does use the term “Constitution in Exile” as part of their self-description.

    They have claimed [A]; I’m not aware that they have also claimed [B]. Even if they did, it wouldn’t matter much: the point is not what the movement is or is not called.

  8. Am I the only person who thinks that stare decisis has value because it gives people some confidence that the rules that were established won’t be changed based on who the judges are, or have we just decided that the judicial branch is now just another type of legislature?

  9. Alkali: That was my first reaction to the controversy when it popped up on Volokh, but I came to think it probably does matter. A “Constiution in Exile” suggests a fairly specific program–a single, consensus reading of the Constitution–rather than the much looser agreement that overlaps in places on substantive policy issues, but is more about a difference in approach.

  10. Hmm. Find some particular ideological positions shared by people you disagree with, make wary-sounding remarks about a “movement” vaguely defined by some of these positions, and then accuse folks of belonging to the movement. If they say, “hey, there’s really no such movement, as such,” call them liars – because, after all, you invented the movement, you get to decide who’s in it…

  11. A good pair of eyes, be sure to wear a good pair of glasses.

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