Monday, March 9, 2009

Justice and the Judiciary

During the last election cycle, then-senator Obama answered swiftly when asked what Supreme Court justice he would not have confirmed: Clarence Thomas. Instead he argued against judges who would merely apply the law as written, but said -- and this isn't a joke, mind you -- that he wanted judges "with heart". Judges that decide cases on the basis of how a particular case "should come out" -- rather than on the basis of the law -- is a serious departure from the principle of the rule of law and is unlikely to result in genuine protections when unpopular or politically powerless groups seek to have their rights protected.

As African Americans learned while trying to protect their right to free assembly in NAACP v. Alabama (decided in 1958, before the United States Congress regularly had Black members, and before the Supreme Court first had a Justice of color), having a rule of law that applies to everyone is critical to maintaining law that means something when it's your turn to have your rights protected. This lesson isn't easy to learn. The NAACP itself did not learn this lesson from NAAC v. Alamaba. When the exact same right -- to protect membership lists from being compelled from private organizations hated by state officials -- was being protected by Anthony Griffin (who then served as counsel to both the NAACP and the ACLU), the NAACP in 1993 fired Mr. Griffin for working to protect the exact same right from encroachment by an overzealous Texas prosecutor. (Griffin, who in addition to being an outstanding attorney happens to be Black, did not take the case because he thought the aggrieved party -- a Grand Wizard in a Klan organization -- was "morally right", but because he knew the law was paramount and that if the law was itself not protected, the next membership list sought might be the ACLU's or the NAACP's). Griffin stayed on the case despite personal attacks that he was on the "wrong" side and won, to the benefit of all Americans and even to the benefit of a small church I saw hit with a membership list subpoena last year during a law suit over an insurance claim. Evil can come from any quarter and our rights must be enforced everywhere, all the time, or they are meaningless.

The rule of law is much more important than "heart" because -- if enforced as written -- it means something over time. This cannot be said about "heart".

The irony in Obama preferring "heart" to careful reading of the actual law is that Justice Thomas is perhaps the voice most likely to support genuine rights of individuals. Just this month, in an opinion on whether federal drug regulations should prevent consumer litigation for product safety, Clarence Thomas went far past even the so-called "liberal" Justices in saying individuals' right to historic safety protection under state law should be protected from federal encroachment by expansion of preemption doctrine. Thomas' interest in protecting individual rights from overreaching by federal authorities dates back to the middle of the last decade, and he has the fearlessness to write what the law requires even when it places him at odds with "conservative" justices -- or any of the Justices sitting with him on the Court.

With a Thomas-style enforcement of the law as written, States would already be achieving universal coverage in health insurance, just as they did in auto insurance. Under federal encroachment under doctrines that developed far after the creation of the Constitution, however, and never imagined by its authors, the federal government has used "rules" dreampt up by judges with more "heart" than attention to the letter of the law to prevent local government from regulating health care to prevent health plan cherry-picking and to distribute the cost of care across the population of covered lives. The Supreme Court, bending over backward to make up rules not present in the Constitution to enable federal exercise of a general police power, actually enjoined a Hawai'i tax that funded universal health care (affirming without even bothering to write an opinion at 454 U.S. 801 (1981) the decision of the Ninth Circuit Court of Appeals in Standard Oil Co. v. Agsalud). Although Hawai'i got "grandfathered" under the particular federal law at issue (see 29 U.S.C. §1144(b)(5)) so its scheme could be protected as it existed in 1974 before the federal statute at issue was passed, that wasn't the end of the evil: Oregon was prevented from achieving universal coverage under the same law, and Hawai'i itself has been unable to update its health coverage scheme to address lessons learned in the last thirty-plus years. Moreover, other states' effort to solve health coverage and affordability problems -- and efforts merely to enforce coverage already existing -- have been clobbered by the exact same federal law.

Congress may have the right to "define and punish felonies and piracies on the high seas" but this and Congress' other express grants of power do not amount to anything like a general police power other than at sea or in areas of exclusive federal ownership, like stockades and occupied foreign territories. Only brave souls like Justice Thomas stand between individuals who expect the law of their communities to protect them, and a nationwide Washington D.C. in which there is no justice, only crime and oppression and corruption and failed public education. But for the personal action Justice Thomas has taken on the bench, it is difficult to tell how far the federal government could have reached since 1995 in neutering private rights in order to make it easier for federal authorities to control and herd the population it largely ignores (except when running ad campaigns during election season).

Allowing judges to decide cases "with heart" so the broad public is happy with the outcome of the parties' conflict is tantamount to inviting them to rewrite the law to suit every case; it means giving office to judges who do not care about the law they are sworn to uphold, but who prefer instead to legislate it as they go. This kind of excitement to create law where the Constitution offers no support for it is how this nation got stuck with ideas like "field preemption". The runaway preemption of state law protection of individuals is how Americans get saddled with evil decisions like that in Hall v. DeCuir, which should stand as a beacon to the necessity of Justice Thomas' approach -- which if employed in that case could have saved America generations of heartache and placed us nearly a century ahead in racial equality. Unfortunately, the Court ruling on Hall v. DeCuir wanted to show "heart" to the apparently sympathetic Mrs. Hall instead of applying the law as written to the case won at trial and through appeal to the Louisiana Supreme Court by Ms. DeCuir. It's too bad our new President thinks more of "heart" than he does of the law.

The law needs real defenders right now as much as ever.

Justice Thomas and the Texas attorney Griffin carry a proud banner. Let's not have a concept with no consistent meaning over time -- like "heart" -- replace the real rights and legal limits set in writing by the people who wrote the Constitution. If we do not like the result, let us have the courage to admit mistake and amend the law, not simply erase it under some limitless doctrine like "heart".


Elliott said...

Interesting that you rightly eschew "heart" as a limitless legal doctrine, yet a month ago you didn't hesitate to propose a litmus test for determining who was un-American and who was not. You said, "Speaking for Proposition 8 might not be un-American, but favoring it in the first place may require more hate and divisiveness than leaves room for American-ness in one's heart." I think judges who base their decisions on heart rather than the law are doing America a disservice. I think that a willingness to brand a segment, actually a majority in this case, of the American population as un-American takes us down a far more dangerous road as history has shown.

Jaded Consumer said...

Thank you for your comment.

I would like to point out that nothing you've written about my comments exposes any inconsistency.

Also, I didn't propose a litmus test for un-American-ness. I expressed doubt certain expressions of hate were American, and I expressed what I thought was irritation at Tom Hanks' decision to be prodded from his supposed conviction by, perhaps, some combination of his publicist and his accountant. What I wrote, far from being a "litmus test" for what was not American, was this: "So it's not un-American to speak your mind, but it can be un-American to want to preach hate in the first place."

Commenting on Obama's preference for "heart" over the rule of law is something that I think is also consistent with this. We can't allow judges to decide which speech should be "worth" protecting simply because their "heart" tells them how the case should come out. Sometimes the price of one of these rights' consistent protection seems to be a crazy standard like New York Times v. Sullivan, which requires the aggrieved subject of a false article to prove not only publication (as historically was required in the UK) and the falsity (which was under English common law a defense the burden of whose proof lay with the defendant), but also the malicious heart of the publisher. Insane, no?

Yet ... if we are to have a free press ... what's the alternative?

So long as we have a Constitution that provides that government "shall not" do things like abridge the freedom of the press or the right to free association or the entitlement of non-felons to be armed, we need judges who will continue to rule as the law requires rather than use their "heart" to figure out how cases should be decided. The moment the judge's mortal "heart" becomes as important as the text that supposedly is our immortal highest law, we've weakened the Constitution.

The truth is that the Constitution has been weakened through the judicial invention of "field preemption", the expansion of the "commerce clause" into such a general police power that federal representatives now propose controlling contractual relationships between in-state residents and their non-monopoly local power companies, and controlling who purchases firearms, and dictating whether physicians' lawful practice of medicine includes one but not another of a host of drugs with a potential for recreational use. The Constitution is surely being erased, and the only people to protect it seem to be people like Thomas.

I've read too many Scalia opinions to believe he's what he's made out to be!