What Trump SCOTUS Short-Lister Diane Sykes Had to Say About John Roberts and Judicial Deference

Wisconsin Court System

In 2003 President George W. Bush nominated Justice Diane Sykes of the Wisconsin Supreme Court to a seat on the U.S. Court of Appeals for the 7th Circuit. During her 2004 Senate confirmation hearings, which were ultimately successful, Sykes was asked to explain her guiding judicial philosophy.

"I believe in deference to the legislative branch of government and the policy choices that the legislative branch of government makes in enacting statutes," Sykes replied. "And so my approach to judicial decision making is one of deference to the legislative branch and one of judicial restraint."

It was a predictable answer from a conservative judicial nominee. For decades, conservatives had been preaching the virtues of judicial restraint, arguing that the "least democratic branch" of government should be exceptionally wary about striking down the actions of the democratically accountable branches. As the conservative legal icon Robert Bork once put it, "in wides areas of life, majorities are entitled to rule, if they wish, simply because they are majorities." According to this view, the courts should butt out.

Judicial deference still has its followers today on the conservative right. Foremost among them is Chief Justice John Roberts, who concluded his 2012 decision upholding Obamacare with these deferential words: "It is not our job to protect the people from the consequences of their political choices."

Which brings us back to Judge Sykes. Currently Sykes is one of the top names being floated by President-elect Donald Trump as a possible nominee to replace the late Justice Antonin Scalia on the U.S. Supreme Court. This raises some questions. Is Sykes still a devotee of judicial deference? Or have her views changed since her 2004 confirmation hearings?

There may be reason to think that her views have changed. In 2013 Sykes delivered a lecture titled "Minimalism and its Limits" at the Cato Institute's annual Constitution Day conference in Washington, D.C. Her topic was whether or not Chief Justice John Roberts, and the Court he led, "is committed to [judicial] minimalism and, if so, whether that is a good thing."

Judicial minimalism, Sykes explained, "starts from a presumption of deference to the political branches. It self-consciously avoids invalidating acts of the legislative and executive branches either by upholding them on the merits or by using various techniques for avoiding constitutional questions."

Sykes then proceeded to critique the chief justice for his misguided pursuit of minimalism in several cases. "The Court's primary duty," Sykes concluded, "is not to minimize its role or avoid friction with the political branches, but to try as best it can to get the Constitution right."

It seems to me that there is some discrepancy between the views expressed by Sykes in 2004 and those expressed by her in 2014. If President-elect Trump ends up nominating Sykes to the Supreme Court, I hope that the Senate Judiciary Committee will ask her to further explain her position on the limits of judicial deference and the proper role of the courts.

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Comments

[Scarecrow Repair & Chippering]

I hope that the Senate Judiciary Committee will ask her to further explain her position on the limits of judicial deference and the proper role of the courts.

I almost hope they don't, because what does it matter? If she is still fond of judicial deference, it might make her feel locked in. If she has changed and thinks judges should knock down unconstitutional laws, it might get her rejected.

[Peachy rex]

I hoped that the Obamacare fiasco would alert conservative jurists to the limits of deference, and perhaps it has. Maybe.

[El Oso]

I truly don't understand the role of the Supreme Court if not to uphold the Constitution first and foremost...

[Florida Hipster]

To tell Americans to "shut the fuck up and do what they're told"?

[FD]

After Kelo, Seleblius... you're not too far off.

[The Fusionist]

The left-wing activism of the Warren and Burger courts prompted eloquent criticism from Felix Frankfurter, a New Deal Democrat who, like all good New Deal Justices, believed in deferring to the government (especially the federal government) to allow infringements on economic rights.

As the Court began proclaiming various *non*-economic rights, Frankfurter quite logically thought this was inconsistent with the judicial deference principles which he thought had been established in the great New Deal struggles over economic legislation. Why was the Court challenging other branches of the government in one set of cnon-economic cases, while deferring in economic cases? A good question.

So as the economic part of the New Deal precedents seemed fairly settled, conservatives often gave in to the temptation to say, "OK, then, let's have judicial deference, but let's have it across the board like Frankfurter says - if we can't go to court to defend economic rights, why should we be able to go to court to impose an exclusionary rule, or to establish a right to birth control and abortion?"

Now, as Root has chronicled, some conservatives (Root calls them libertarians, but why can't they be both?) are saying, "let's stop being deferential either in economic *or* non-economic cases."

Each position has a logic which is somewhat lacking in the legal culture of "making rights up as we go along, and dropping rights we find inconvenient."

[The Fusionist]

NB - Frankfurter wasn't around for the Burger court, but his admirers were around to make similar criticisms.

[Pan Zagloba "The Stickler"]

Frankfurter wasn't around for the Burger court

Great, I just had lunch and now I'm hungry again.

[The Fusionist]

Why don't I realize when I'm setting up these jokes?

[The Fusionist]

I could always pretend that I was deliberately trying to be funny.

[SoCal Deathmarch]

I usually defer to the Taco Court myself.

[Rufus The Monocled]

I thought the Pizza court took precedence over both?

[Scarecrow Repair & Chippering]

Food courts are all-encompassing.

[Robert]

With relish.

[Diane Reynolds (Paul.)]

"It is not our job to protect the people from the consequences of their political choices."

It would be nice if I could get some protection from the consequences of other people's political choices.

[John]

You do. It is called the Constitution and the BOR. That protection, however, is not absolute. It protects you from certain kinds of things it does not nor should it protect you from every bad law.

[John]

This entire dispute is an extended exercise in question begging. There is nothing wrong with saying I believe in deference to the legislative branch of government and the policy choices that the legislative branch of government makes in enacting statutes, That is nothing wrong with that statement. It is true. Judges shouldn't be making policy choices over those of legislatures.

What everyone on both sides agrees is that judges should be striking down laws that are inconsistent with the Constitution. The disagreement is over just exactly what "inconsistent with the Constitution" means. But whatever it means, the answer has little or nothing to do with how deferential judges are the legislatures.

Judicial deference is frankly an absurd way to frame the issue.

[R C Dean]

What everyone on both sides agrees is that judges should be striking down laws that are inconsistent with the Constitution.

Actually, I don't think everyone agrees. Many judges feel empowered/obligated to amend statutes to make them consistent with the Constitution. I am thinking here of the de facto amendment of the marriage laws in several states to enable gay marriage. The right way to handle those statutes (assuming gay marriage) would have been to strike those marriage statutes, and leave the legislatures to enact Constitutional statutes.

The real argument, though, is what counts as "inconsistent" with the Constitution. "Deference" goes to how strict the courts will be - slavishly supine, qua Roberts, or something more originalist.

[John]

The real argument, though, is what counts as "inconsistent" with the Constitution. "Deference" goes to how strict the courts will be - slavishly supine, qua Roberts, or something more originalist.

To some degree. To the extent that there is a debate about "deference" it is about how much judges should take legislatures at their word. If a legislature says "we are enacting this law for this reason", how obligated is the judge to assume that is true when deciding the issue?

But wherever you stand on that question, that still says nothing about what the Constitution actually says. I find the use of the term "judicial deference" to almost always be dishonest no matter who is using it. Neither side is talking about deference. What they are doing is cloaking their view of the constitution in terms of "deference" or the rejection of "deference" as a way to beg the question or declare competing views of the constitution invalid without actually arguing the case why.

[Robert]

Once again John hit it on the nose. Judges are supposed to decide appeals based on what the laws say, and that includes constitutions, statutes, and regul'ns, each in its own place & priority. Deferring to legislators includes deferring to the constitution, because the constitution was legislated too.

[John]

Many judges feel empowered/obligated to amend statutes to make them consistent with the Constitution.

Sort of. What progressive judges feel empowered to do is amend the Constitution to make it consistent with whatever policy they prefer. Sometimes that involves deferring to the legislature and other times stomping all over it, depending on whether the legislature is controlled by other Progressives.

[Robert]

Roberts wasn't deferential to the legislature re the penaltax. He said they couldn't alter the facts to make a tax into a penalty or vice versa by their mere words.

[Diane Reynolds (Paul.)]

"It is not our job to protect the people from the consequences of their political choices."

And by the by, it kind of actually is. If those political choices violate the rights of others in an unconstitutional way, then yes, the Supreme Court protects people from those consequences, which might have very well been perfectly democratic.

[John]

And by the by, it kind of actually is.

It isn't at all. Their job is to enforce the law and as part of that the Constitution. Whether a law has good or bad consequences should in no way effect the issue of whether it is Constitutional. If there job was in any way to protect you from the bad consequences of laws rather than apply the law, the fact that a law has good consequences might in some circumstances make an otherwise unconstitutional law constitutional.

[Diane Reynolds (Paul.)]

I read 'consequences of their political choices' as the political choices which lead to unconstitutional laws. You can't repeal the bill of rights through a ballot initiative.

[John]

I read 'consequences of their political choices' as the political choices which lead to unconstitutional laws.

You can read the term however you like, but I see no reason to do it that way. Consequences means just that, consequences. Nothing in what she says implies that she is talking about protecting unconstitutional laws.

[R C Dean]

I read "consequences of their political choices" to refer to the actual laws being reviewed by SCOTUS.

[John]

I read "consequences of their political choices" to refer to the actual laws being reviewed by SCOTUS.

I do too. And it is not, strictly speaking, their job to protect you from laws. It is their job to ensure the laws conform with the constitution. And that is not the same thing as protecting you from the consequences of laws.

[Diane Reynolds (Paul.)]

You can't repeal the bill of rights through a ballot initiative.

Well, you can but you shouldn't be able to

Note on the link I posted. It's factually wrong:

Initiative 594, which requires background checks for Washington residents who buy firearms at gun shows and online, garnered 60 percent of the votes

It does not only auto-magically demand background checks for people who buy firearms at gun shows and online, it bars any transfer of any firearm (transfer undefined) between two people without a full background (NICS) check.

[R C Dean]

It is their responsibility to protect us from the consequences of political choices that violate Constitutional restrictions. You will note that the statement does not include any recognition of the that violate Constitutional restrictions bit.

[John]

It is their responsibility to protect us from the consequences of political choices that violate Constitutional restrictions.

I agree. But there is an entire tradition of Progressive jurisprudence that says any bad consequence makes the law unconstitutional. The point is they are there to apply the constitution. The fact that necessarily results in us being protected or saved from the consequences of unconstitutional laws in no way changes the nature of their duty.

[Zeb]

But there is an entire tradition of Progressive jurisprudence that says any bad consequence makes the law unconstitutional.

Great, so let's get rid of all that Great Society shit that has had loads of bad consequences. And, well, pretty much every law.

[John]

Yeah Zeb because Progressives are famous for living by their own standards or admitting a Progressive program is a failure.

Regardless, you can't seriously support the idea that a judges' job is to overturn any law they see as a bad one.

[Zeb]

That was kind of my point. It was not meant to be taken seriously.

[John]

Sorry to miss the sarcasm. My mistake.

[Robert]

What about the consequences of the political choices that go into constitutions?

[Fist of Etiquette]

Won't somebody please think of the majority?

[timbo]

Make no mistake about it, Trump likes him some neo-cons and some big government actors.

Hopefully he listened to Judge Napolitano the other day.

[John]

What makes this woman a Neo Con? And show your work.

[Enough About Palin]

Neo-con means Jew hater.

[Zeb]

There would seem to be a lot of self-hating Jews among them, in that case.

[kbolino]

I thought neocons were ardent Zionists? These terms keep getting redefined.

[timbo]

They are Zionists when the time is right. Just like repubs all of the sudden care about freedoms guaranteed in the first amendment.

Does anyone remember when the neo-cons wanted to censor all rap and everything else that was non-religious. Now the lefties want to sensor all talk. Quite a turn - but not really.

Side note, I am still amazed the American public did not censor rap by not purchasing that moronic crap.

[Zeb]

I don't think that was neocons. As I understand it, neocons are basically big government liberals who like war and national greatness stuff.

[timbo]

Neo cons invade countries and kill civilians because it is the morally correct thing to do.

Neo-Libs invade countries and bomb villages to get the press off their backs.

[timbo]

and they both do it to make money off defense stocks.

[Sidd Finch v2.01]

Is Thomas a neo-con?

[kbolino]

A neocon is someone who wants to remake the world in the image of liberal democracy. Censoring music would be an irrelevant distraction to them.

[timbo]

I think she sounds like a big gov gal. Deferring to congress is a recipe for bigger government only. That is all they serve to do. They never eliminate, reform, shrink, cut, quit or die.

Depending on which side she falls on now, the author makes a fair point.

[Francisco d'Anconia]

Hopefully he listened to Judge Napolitano the other day.

The only hope I have that any good can come from Trump is that he did. One libertarian justice could turn everything around. Chance of that happening...0.0%

[timbo]

-0.0% if that is possible. It could only be possible under the greatest jobs president god ever created.

[Voros McCracken]

"It is not our job to protect the people from the consequences of their political choices."

Yes, that's precisely what your job is. That's why there's such a thing as the Supreme Court.

[John]

No it is not. See my response Paul above. If there job is to protect the public from bad consequences, then why even have a Constitution? Just let judges decide cases on whether they think the law has good or bad consequences?

Just because a law is unconstitutional doesn't necessarily mean it is a bad law or at least not a bad law to some people. The question of the goodness or badness of a law should have no bearing on its constitutionality.

[R C Dean]

The question of the goodness or badness of a law should have no bearing on its constitutionality.

Indeed not. Robert's statement leaves precious little role for the Supreme Court after any law, good or bad, is passed, other than enforcing it regardless of its constitutionality.

[John]

I think you are misreading Roberts' statement. Roberts said it is not the court's job to protect people from the bad consequences of laws. He didn't mean that the court should never strike down laws. He meant that the fact that a law is bad has no bearing on whether it is constitutional. And he was right about that. All Roberts was saying in that statement was "don't tell me the law is bad and expect me to strike it down on that basis". And he was right about that.

Roberts' decision on the constitutionality of the law was wrong. But that statement was proper. And when conservatives and libertarians criticize that statement they are either mischaracterizing it or expecting the courts to strike down a law simply because it is bad in their view.

[Sidd Finch v2.01]

Never go full Old Mexican.

[Longtobefree]

So would a law disbanding the Supreme Court be constitutional? (Who would say, given the SC was disbanded?)
How about adding judges (again)?
How can the TSA strip searches pass fourth amendment muster? (there is reasonable suspicion EVERY person is a terrorist?)
Why are asset forfeitures prior to conviction (or worse yet, charges!) be due process?
etc etc

[Zeb]

I think that the constitution requires that there be a supreme court. It doesn't set the size of the court, so adding or removing seats would be OK and just needs an act of Congress.

[John]

It doesn't even need that. It just needs the approval of the Senate. There is no law on the books that sets the size of the court at nine justices, although the full Congress would have to agree to fund the new justices' salaries.

[Zeb]

Interesting. I was under the impression that there was some law defining the size of the SC.

[John]

The lower courts, the circuit courts and district courts are entirely the creation of Congress. The size of those courts is governed by statute. Every once in a while they will expand the size of the various circuits or create a new one. But the Supreme Court is a creature of the Constitution. The Constitution does not set the number of justices nor does it give Congress the power to do so either. The number of justices is a product of however many justices the President wants to approve and the Senate wants to confirm. So if for example, Hillary had won the election and the Republicans kept the Senate, the number could have remained at 8 as the Senate refused to confirm Hillary appointed justices.

[Zeb]

I think you are incorrect about that, actually:

Here.

[John]

You are right. It is set at 9 by law, but in reality that is just a maximum. If the Senate and the President can't agree on a replacement for a justice or just decide that they don't want to appoint a replacement, the law has no effect.

I actually think that law is unconstitutional. The Constitution doesn't designate a set number of justices nor does it empower Congress to do so. The number of justices is left up to however many the Senate and President can agree. That law has never been tested. And of course the courts would be loath to strike it down, but I think it should be struck down.

[Zeb]

I think that law also requires 6 for a quorum. So we could go on indefinitely with 8.

I have no opinion on its constitutionality at this point. I think it is a good thing, though. If the number weren't set by law, it would be a lot easier to pack the court like FDR wanted to. Maybe I'm missing the downside, though. I haven't given it a ton of thought.

[John]

I don't think it is a bad law. I am just not convinced Congress has the power to do that.

[Domestic Dissident]

There are a lot of dickhead senators (in both parties) that, if you don't say you will defer to them or at least strongly imply it, will reject you out of hand. So if a nominee doesn't really believe that, he has the nice Catch 22 situation of either being rejected, or lying to them under oath.

I seriously doubt there are many judges of any philosophy who believe that congress should always be deferred to 100% of the time.

[John]

There are dozens or probably hundreds of examples of liberal judges striking down otherwise Constitutional laws because the judges didn't like the laws. Judges telling legislatures and by extension the public to go fuck themselves, and using the Constitution as a post hoc rationalization to enforce their policy views on the country has been a huge problem in this country. Reason acts like things like forced school busing never happened. Statements like the one this woman made and is discussed in the article should be read in the context they are made.

[Jerryskids]

"in wides areas of life, majorities are entitled to rule, if they wish, simply because they are majorities."

That's almost tautological, if by majority you mean the side with the better army. For all the high-minded rhetoric of the Declaration of Independence, England didn't accept that the colonists were entitled to rule themselves for any other reason than that we killed more of their troops than they could afford to replace.

[John]

It is not tautological. What it says is that the Constitution only speaks to certain things. Outside of those things, it is a political question. All that statement means is that judges should only be striking down laws that violate the constitution and not getting into the business of deciding what is good or bad law.

[Zeb]

But whatever super-majority is required to amend the constitution is entitled to rule as it wishes.

[John]

More or less, yes. That is the risk we take by having a Republic. Yes, you are right, the country could go insane tomorrow and amend the constitution repealing the bill of rights. That is a risk, although a small one.

The flip side of this is that judges take the power of being able to strike down laws on the basis of them being good or bad and use that to enforce a tyranny of their own. I would rather grant the power of tyranny to the 2/3s majority of Congress and the States it would take to amend the Constitution than to a single judge or a majority of five judges on the Supreme Court, because it is very unlikely that the 2/3rds majority supporting a single form of tyranny will ever emerge and nearly certain a judicial majority supporting tyranny will.

[Zeb]

Yes, I agree. It's a pretty decent system we have, if people would follow the rules as written. Of course, that is also unlikely to happen at this point.
And I agree with your main point in this thread that courts shouldn't be deciding things based on whether or not they are a good idea or have good consequences. They also shouldn't be rewriting laws to make them constitutional (as with Obamacare). If a law violates teh constitution at all, throw it all out and congress can try again if they want. Might even encourage them to make laws that are narrower in scope if one unconstitutional amendment or rider invalidates the whole thing.

[John]

The flip side to Roberts' statement that gets forgotten is that it is also not the Courts' responsibility to save us from the consequences of their invalidating unconstitutional laws. Even conservative courts will shy away from changing precedent or striking down unconstitutional laws when the consequences of doing so are large. That is bullshit. If the law is unconstitutional, it should go down. The court shouldn't rewrite it to keep us from bearing the consequences.

[Cyto]

This is the windmill that I've been tilting at forever.

Most of what we (we being the current electorate) want our government to do is clearly and unambiguously beyond the scope of the constitutionally granted authority of the Federal government. It just isn't even close.

So a properly operating judiciary would toss out law after law until the constitution is amended, granting those powers to the government.

We would probably need about 3 dozen constitutional amendments to continue operating as we have been, if we were being honest. (and if we decided to draft the amendments with properly narrow scope).

But nobody - and I really mean nobody - has the stomach for that. So we just keep pretending that the courts and the federal government are operating with legitimate authority. Because it is convenient to do so.

[Cyto]

I thought she phrased it just right in that one quote.... judicial deference to the legislative branch in areas of policy. That is how it should be.

They should not defer to anyone else on issues of constitutionality or protections of rights.

So policy .... should we spend more on military or FBI? Up to the legislature.

Constitutionality..... does the federal government have the power to regulate the practice of medicine? No deference to the legislature.

See.... it isn't that hard, really.

[Tony]

"Getting the constitution right" is a fool's errand inherently. Anyone can read words; any educated person can interpret them in context textually, legally, and historically. But at the end of the day, some parts, the ones most likely to be the object of Supreme Court scrutiny, are simply vague, open to interpretation, hence only pinned down by ideological or partisan motives. Obamacare notwithstanding, Roberts is no minimalist, and neither is anyone else on the court. Only people who don't claim to be strict minimalists are telling the truth; the others are interpreting as freely as they like and slapping their opinions with a badge that says "God says so!"

[Robert]

It seems to me that there is some discrepancy between the views expressed by Sykes in 2004 and those expressed by her in 2014. If President-elect Trump ends up nominating Sykes to the Supreme Court, I hope that the Senate Judiciary Committee will ask her to further explain her position on the limits of judicial deference and the proper role of the courts.

Why? Just to satisfy your own curiosity? Maybe we'd get a better result if the senators didn't know.