Posted by: Jeff | May 13, 2010

Competing Jurisprudence and the Executive Power Wild Card

Noah Millman has a long and thoughtful post about the Elena Kagan nomination, using one of Kagan’s published works as a springboard for examining her thinking. Millman’s conclusion has the really helpful stuff:

Any number of progressive Democrats have lamented that President Obama chose to nominate a cautious establishmentarian like Kagan when he could have appointed a new tribune of liberal jurisprudence. But it is clear from numerous statements on the subject that Obama does not believe that the Court can effectively play a leading role in the progressive transformation of American society – and because he thinks it can’t play such a role effectively, he doesn’t think it should play such a role. It should be pretty clear by now that Obama doesn’t want to appoint a “liberal Scalia” to the Court – someone who will engage in fierce ideological combat and push the Court to the left. Rather, he wants a Court that will defer to a progressive Legislature (and Executive). He wants a boringly progressive but deferential Court of Breyers, Sotomayors and Kagans in which Scalia’s fiery denunciations seem out of place.

Is that a good thing? On the whole, I think so. I think the Court does damage to its own legitimacy when it lurches in the creation of new doctrine. But Kagan is the fifth consecutive appointee to the Court to be cut from this deferential, establishmentarian cloth. I was disappointed but not surprised that President Bush declined to make an “interesting” conservative like Michael McConnell or Alex Kozinski his second appointment to the Court. Similarly, I’m disappointed but not surprised that President Obama has made such a boring liberal appointment. I don’t want a Court that believes its mission is to restore the “Constitution in Exile” and I don’t want a Court that thinks its mission is to advance the progressive agenda through the creation of new rights to welfare or whatnot (and, to be fair, while the former is a live project within the conservative world, the latter hasn’t been a serious goal of the progressive world for, what, a quarter century?). But sometimes a Court needs to be able to stand against what “everybody knows” – and the Justices most likely to be able to do this are the ones with strong convictions of their own.

First I want to focus attention on Millman’s parenthetical in his second paragraph. The idea that progressives and the left are out to manufacture new rights out of whole cloth via Supreme Court jurisprudence remains a perennial boogieman of the right. It was pretty common during the health care debate, for example, for left-wing supporters of reform to talk about a “right” to health care. (Jim Mangia used this construction in our interview with him.) The question is, what do people mean by that? Do they mean they think the Supreme Court should literally instruct Congress to establish a universal health care system? Or by “right” do they simply mean “society has a moral obligation to do this?” Because the two things are most definitely not the same; the first involves a radical remaking of the nature and purpose of the Supreme Court, while the second is merely a forceful form of rhetoric.

Speaking for myself, when I talk about health care as a right (and I try not to, because it’s an imprecise use of language) I intend the second meaning. And my impression is that most everyone else on the progressive-left is in the same boat. Joining with Millman’s parenthetical, and as a member in good standing (I think) myself, I think the left’s politics and outlook have fundamentally changed in the last few decades, and that the “welfare as a constitutional right” leftist jurisprudence of the 60s and 70s is dead and will stay dead. As Millman notes, Obama himself is a good example of this. All of which, I think, is basically a good thing.

Rather, what drives the right batty about current leftist jurisprudence is its attempt to protect certain rights that are (for the most part) pretty firmly rooted in actual Constitutional language, but that the right feels go too far; flag burning as protected by free speech, abortion and assisted suicide as protected by privacy, rights of the accused as protected by the Bill of Rights, and the ability of the government to robustly intervene in the economy under Article II, to name just a few examples. This also makes liberal jurisprudence in our current historical moment a fundamentally conservative affair, as it’s an attempt to preserve gains already made. When I talk about the need for more left-wing stalwarts on the Court, that’s what I mean; people who will vociferously defend those gains against the attempted right-wing rollback represented by the “Constitution in Exile” jurisprudence, which is in fact the activist, change-oriented jurisprudence of our day.

Moving on, Millman has what I think is another good point here; under our current situation, the ability of justices to be independent, creative, and to buck the establishment becomes as important as where they fall on the political spectrum. And the general impression that Kagan is none of those things is one of the most serious strikes against her.

I bring in evidence of this point Hamdi v. Rumsfeld. While only Justice Thomas sided with the Administration in this case, the plurality opinion was relatively deferential to the government, and attempted to assist the Administration in coming up with procedures outside the normal legal channels that would nonetheless pass Constitutional muster. That decision was written by Justice O’Connor, joined by Justices Breyer, Rehnquist and Kennedy. With the exception of the wild-card Kennedy, these were, at the time, the most government-friendly, deferential group on the Court.

Two dissents were written that were less deferential to the government. The first, by Justice Souter, joined by Ginsburg, disputed whether Congress had actually authorized detention of unlawful combatants. But the second dissent went much further, denying that Congress or the Administration could create any such alternative system for trying Hamdi, unless Congress were to suspend habeas corpus officially. That second dissent was written by Justice Scalia, joined by Stevens.

A Court entirely composed of principled defenders of conflicting doctrines would be a disaster in its normal course of operation. But at this point, I think we’ve got enough establishmentarians. The next two Justices to retire are likely to be Ginsburg and Scalia. Here’s hoping whoever is President when they do replaces them with men and women of similarly independent spirit.

Bringing up Hamdi v. Rumsfeld is especially telling, because executive power really is the ideological wild card in this debate. We tend to think of rolling back the executive’s reach as a progressive-left cause, because of the Bush Administration’s forays into torture, indefinite detention, spying, and the like, and the way approval or disapproval of that tended to break down along partisan lines. (And by far the worst aspect of the Obama Administration has been its retention and, in some cases, expansion of the previous administration’s stances and arguments in this arena.) But before Bush and Cheney threw these issues into sharp relief, the expansion of executive power had actually been a joint project of the conservative and liberal establishments, with opposition to that expansion coming from quixotic pockets on both sides. And this particular issue’s ability to muddle the ideological divide has extended all the way into the Supreme Court itself.

I’m embarrassed to admit I am not well-versed in Kagan’s views on executive power, but what second-hand reading I’ve done indicates she is pretty thoroughly deferential to the executive branch on these matters. Which could be wrong, of course – we won’t know for sure until the Senate quizzes her. (And maybe not even then.) But this alone strikes me as a justifiable reason for trying to scuttle her nomination.


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