Among other things, Judge Samuel Alito is getting in trouble (at least with the left) because of his ruling in Planned Parenthood v. Casey. The basic issue in that case was the extent to which a state can place restrictions on a woman’s right to an abortion, and Judge Alito essentially thought that he did not feel that the spousal notification (not spousal consent, although some have argued that it basically amounts to the same thing) was an undue burden on a woman seeking an abortion. The Supreme Court disagreed (on this particular point), and overturned Alito’s opinion by a 5-4 vote (with O’Connor, the woman who Alito has been nominated to replace, as the deciding vote).
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Jan 102006
There has been a lot of discussion on leftfielder about what sorts of things are fair game when considering whether or not to confirm Alito to the Supreme Court. Most of this has dealt with the notion of judicial philosophy. The argument is that he should not be confirmed or rejected on the basis of his beliefs about particular issues, but rather about his style of interpreting the law.
I’d like to propose the notion that a second criterion be added to judicial style, not just for Alito, but for future judicial nominees to all courts, especially the Supreme Court: Science Literacy. Science is progressing at an unbelievable rate — some estimates suggest that the amount of scientific knowledge doubles every five years! This massive influx of science and technology into our lives leads to a host of legal concerns.
In molecular biology we now have the ability to study stem cells, which have potential for significant medical advances but also significant ethical challenges. We might soon have the ability to manipulate the human genome, altering prenatal DNA to remove diseases, increasing physical/mental abilities, or changing a baby’s gender. DNA can now be used to identify criminals or exonerate the accused. We know more about the nature of pollutants on individual health and on the environment and science gives new insight into the possibility of global warming and changing climate.
Information technology and computer science has changed the world of intellectual property and made transmission of dangerous information much easier. Privacy and piracy in the age of the internet take on new and different faces.
Psychology and neuroscience are rapidly increasing our understanding of how people think, and dangerously how to manipulate people’s behaviors. Numerous documentations of irrational behavior suggest that certain interventions might improve quality of life, but at a cost of individual liberty. Psychological testing determines a great deal of hiring and university admissions decisions.
The point is, science is everywhere. And it seems likely that as science progresses ever faster, a larger proportion of issues that make it to the higher courts will involve scientific issues, or otherwise have a great deal of scientific evidence. While I fully agree with previous arguments that knowledge of the law and interpretation of the law are important factors for confirmation, it strikes me that we also want our judges to have a certain level of scientific literacy. I certainly don’t want judges to be ruling on the legality of issues if they don’t have the requisite training in science to understand the nuances of the case.
And so I propose that judges be made to demonstrate scientific literacy before being confirmed to a court. I’m curious to see what everybody else thinks of that.
Nov 022005
Hey, folks — believe it or not, I’m one of the authors associated with this site, though I haven’t actually, y’know, posted here for quite some time. You can find me at my main haunt, CardNilly, where I talk about baseball, and particularly the Cardinals. But in my actual real life, I’m a lawyer. Mike’s most recent post here about varying judicial philosophies is correct in a lot of the specifics, but kind of jumbled as to how things are applied. So I thought I’d do a primer on how judges (theoretically) are supposed to go about interpreting the law. If you go to law school you (like I did) can take plenty of classes which delve into this very area of discussion. In fact, you could make a reasonable argument that the arguments and the various theories about how to interpret law are the very soul of the appellate practice. After all, once you get up into the appeals situation, you’re not fighting about the facts any more — you’re just fighting about the law. So here, in a nutshell, more or less, is Jurisprudence 101.
In the beginning, of course, there is the word. And, sadly, there is no guarantee that the word is good, since it’s being drafted by legislators or bureaucrats, neither of which are particularly dependable sorts of folks in terms of writing things down clearly. So the first test is pretty simple: look at the plain meaning of the text of the law at issue. If it is clear from the language at issue what the legislators meant about how the statute should be applied, then life is good and the wheels of justice can roll onward.
(Also, you’ve got smooth sailing if a court before you has said that the term in dispute means X and not Y. This generally doesn’t happen in appellate cases, though, since there would be no dispute. Usually you’ve got a case where none of the courts in your state/federal circuit have said anything about the term, and courts in State/Federal Circuit A say the term means X and not Y, and courts in State/Federal Circuit B say the term means Y and not X.)
Sadly, life is rarely that easy, at least for the tough stuff. Some of the time, clever lawyers on either or both sides can create some kind of an ambiguity in the statute or regulation at issue. So the court’s job is to get rid of that ambiguity somehow — to come down for one interpretation of the statute or another. When doing this, the first thing the courts should do is look at the whole of the statute or regulation — to try to glean some kind of meaning about the term in dispute from somewhere else in the legislation. Here’s the theory behind that: Since we live in a democracy, the word of the people should govern. The word of the people, in this sense, is the text of the statute or regulation at issue. So to the extent at all possible, if the court can derive some meaning for the term in dispute from the word of the people, democracy is upheld and life is grand. (Cue marching bands playing some sort of Sousa march)
This process is called Statutory Construction. As Mike correctly points out, this is where we get the term “strict constructionist,” which refers to judges who construe — using the canons of construction we’ll talk about in a bit — more narrowly than expansively. If the dispute is grammatical in nature, there are four canons which are routinely applied, all of which have fancy Latin names to make lawyers feel like the money they spent on law school was actually worth something. Jargon as a barrier to entry and all that. Anyway, the big four canons are:
- Ejusdem generis — this means, roughly, “of the same kind, class, or nature”. It’s also what the “e.g.” stands for, if you use that when you’re writing. The idea here is that if the term in dispute are general words following a list of specific items, the general words will be construed to be limited to the same kind, class, or nature as the specific items. The standard example given is a Supreme Court case which dealt with the theft of an airplane under the National Motor Vehicles Act back in 1931. The statute enumerated something like “cars, trucks, motorcycles, and other motor vehicles” — and one side wanted airplanes to fall in the catchall term at the end. Makes a certain amount of sense, right? Planes have motors, they’re vehicles, therefore they’re motor vehicles. But the court said that because the other items enumerated were motor vehicles travelling over land, the general term at the end also had to apply to motor vehicles travelling over land.
- Expressio unius est exclusio alterius — “the expression of one thing is the exclusion of another”. This is also pretty simple. If the statute has a list of items without a general catchall term at the end, the statute is presumed to apply only to those items. So if a statute purported to give a public official the power to fine people for jaywalking, double parking, and speeding, the official would not have the power to fine people for parking meter violations as well, even though it’s the same general type of violation. If it’s not stated, it’s excluded.
- Noscitur a sociis — “it is known by its neighbors”. This is fairly similar to ejusdem generis, actually. The idea is that an item in a list will be limited in meaning to the meanings of the other items in that list. So, for example, a statute that makes it illegal to “abandon, dispose, desert or leave a corpse” won’t apply to a county coroner when she goes home for the evening, even though she’s technically leaving the corpse at work. (One hopes.) The meaning of the term “leave” is limited to the meanings of abandon, dispose, and desert due to noscitur a sociis.
- The Last Antecedent Rule. No Latin for this one. The idea behind this is that qualifying terms and phrases only apply to the words or phrases immediately preceding them, and not to more remote terms. For example: a statute which purported to regulate “planes, trains, and automobiles which are blue” would be construed to apply to all planes, all trains, and blue automobiles. The qualifier of the color blue would not be construed to extend to the planes and trains, since they are not the last antecedent. Fun, huh?
- Other general canons of construction include a rule against superfluity (to the extent possible, statutes should not be construed to make language superfluous or meaningless), a rule against implying additional words into a statute, and a rule against omitting words from a statute.
If those canons of construction don’t get rid of your ambiguity, then there are other statutory interpretation rules out there to aid in the court’s decision-making. Note the difference between the terms “interpretation” and “construction” here — when a court is construing a statute, it’s looking for meaning that’s already there based on the language itself. When a court is interpreting a statute, it’s reading meaning into the statute based on one or more outside resources brought to bear on the ambiguous term. In the real world, there’s no real difference between “statutory interpretation” and “statutory construction” — they’re used interchangeably in the media and by politicians. But they do mean different things and describe different processes.
One important interpretation rule is called in pari materia, which means “on the same matter or subject”. The idea here is you should look to the surrounding statutes to see if and how the term is used elsewhere within the statutes. Courts presume — whether rightly or wrongly — that legislatures don’t mean to have the same term mean different things within the body of legislation, so all reasonable efforts will be made to keep the terms consistent across the board. Think of various anti-discrimination statutes — generic terms should probably be interpreted the same way for all types of discrimination, right? It would be weird and strange if the same actions would be discriminatory against blacks but not against women, or whatever. This is only helpful if the disputed term is used elsewhere in the legislation and has a clear meaning, though.
Closely related concepts are the rules that:
- Specific language in one statute controls over broad language in another (ex: Statute One says that walking your dog in a park is a felony; Statute Two says that walking your golden retriever in Central Park is a misdemeanor. If you’re arrested for walking your golden retriever in Central Park, Statute Two controls, since it’s more specific);
- When two statutes directly conflict, the one passed most recently controls; and
- The constitution supersedes mere statutes, and if reasonable, statutes should be interpreted to be constitutional.
Another more controversial interpretive approach is to look at the intent of the author — the legislative body. This is tricky. A lot of times there’s a legislative history that the court can go review. Legislators will give speeches on the record and issue reports that say what their intent is and all sorts of stuff like that. To an extent, that sort of thing can be helpful, so long as there are no contradictions, and you can actually get a chunk of history on point. But in a lot of cases things aren’t clear, or there is no legislative history at all, or — in the case of the US Constitution — the Framer’s statements are hard to come by or wholly inapplicable to modern life. There are good arguments both for and against using legislative intent in cases where that intent may not be clear or applicable, and it ends up being a philosophical choice more than anything.
Yet another “you buy into it or you don’t” approach is an outcomes-based analysis, where ambiguities are resolved by picking the option that’s “best” for society, whatever that may happen to mean. As you can imagine, this sort of decision-making is fairly controversial, since the judge is arguably stepping into the role of a legislator. The term “judicial activism” gets thrown around here a lot. This kind of decision-making leaves me very uncomfortable personally for any number of reasons. But it’s out there and being used every day by judges of every different kind of political persuasion.
The fun thing is that there’s no clear hierarchy between statutory interpretation rules, generally. So you can use one rule to come up with one meaning for the term in dispute, and use another to come up with a diametrically opposed meaning. Or a rule of construction will flatly contradict a rule of interpretation. How various judges weigh and value these competing approaches when they come into conflict determines their jurisprudential philosophy. A strict constructionist, for example, is much more likely to devalue outcomes-based analysis and attempt to resolve the ambiguity through rules of construction and in pari materia, and are hesitant to look at legislative intent (if they intended it a certain way, why didn’t they write it that way?) and outcomes-based analysis.
The “strict constructionist” term has gotten bollixed up with political baggage now and is just code for “anti-abortion” when used by politicians. As Mike correctly points out, the key is to try to look past the political code and results to see what the philosophical bent of the judges are. Rehnquist, for example. was more or less a pure strict constructionist — he looked at the wording of the statute or constitutional provision at issue and proceeded from there. Scalia and Thomas, though on the same side of the fence politically, are better termed as originalists — they’ll go with the wording of the constitutional clause at issue, but will deviate from the plain meaning when it is opposed to their interpretation of the original intent of the framers of the Constitution.
I don’t know enough about him to be sure one way or the other, but my fear is that Judge Alito is a third kind of judge — a strict constructionist who is willing to deviate when the outcomes are undesirable in his mind. Time will tell as to whether that’s the case.
Nov 012005
As the Supreme Court confirmation of Judge Alito moves forward over the next few weeks, you are likely to hear a lot of misused and abused judicial terms floating around, such as “original intent”, “strict constructionist”, “legislating from the bench”, and “judicial activism”. With that in mind, I thought it might be useful to talk a little bit the different criteria that judges, especially Supreme Court justices, use to make decisions.
The Written Law Any judge is primarily guided by what the Constitution and the appropriate laws actually say. Keep in mind, however, that even the most simple phrase can have multiple meanings. For instance, Article I, Section 8 specifies that “Congress shall have Power. . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This could be giving Congress exclusive power to regulate commerce among the states. It could be giving Congress some power to regulate commerce, but not necessarily power greater than that of the states themselves. And by commerce, does that mean any movement of goods or services at all, or only transactions that actually involve money moving from one state to another? None of these interpretations are any more obvious than any other. No judge can only rely on the laws and Constitution as they are written, because those documents rarely give any advice on how they should be interpreted, especially in light of complex situations. Still, when a judge is described as a “strict constructionist”, this usually means that they tend to interpret the Constitution (and therefore what the government can and cannot do) very narrowly.
Original Intent One obvious way of deciding what how the document should be interpreted is to look at how the authors of that document meant it to be interpreted. Sometimes this intent is obvious from the law; many laws, for instance, have preambles which explain the specific problem or issue that this law was meant to correct. Sometimes this intent must be divined from the current state of affairs at the time the law was passed (i.e. did the writing of the law conincide with a particularly prescient and related issue?) or from the other writings and speeches of the authors. There are a lot of people who spend a lot of time pouring over what the founding fathers said in order to better understand what they meant by the Constitution.
There are a couple complicating matters, however, when it comes to original intent. Most obviously, laws and Constitutions are not written and passed by only one person. James Madison wrote the draft of the United States Constitution, which he adapted from the Virginia Constitution written by Thomas Jefferson, and then his document was changed quite a bit over the next few months by a convention, until it was signed by forty men. And don’t for a second think that those forty men agreed on how the Constitution should be interpreted. Alexander Hamilton had a very broad interpretation of the commerce clause, whereas Madison and his mentor, Jefferson (who, by the way, was not at the Constitutional Convention, nor did he sign it), had very narrow interpretations of the commerce clause.
Furthermore, the same man can write a document assuming a certain interpretation at one point in time, but consciously allowing for another interpretation at another point in time. Take, for instance, the second amendment. The framers wrote the second amendment at a time in history in which the weapons with which one fought wars were basically the same as the weapons with which one would use for hunting and protection. When they mandated that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” it was reasonable for them to assume that most men of at least some means would own weapons and that those weapons could be used within the context of a well-regulated militia in order to protect their liberties against an over-reaching state. In today’s world, however, any “well-regulated militia” will need access to heavy artillery, tanks, airplanes, and massive assault rifles in order to prove an effective fighting force against a modern state. These weapons are too expensive, and frankly too dangerous, for reasonable people to own them in their own homes. Of course, this situation, of course, was not unimaginable in 1789; for most of human history, the standard weapons of war have been too expensive for the average person to afford. Therefore, one could easily imagine that the framers worded the second amendment vaguely, upon the assumption that it would be interpreted one way given the current state of technology, but another way as technology evolved.
Precedent Another logical way for a modern judge to interpret a law is to look at how other jurists in the past, or even in other jurisdictions, have interpretated the same or similar laws. Of course, adherence to precedent can only take you so far; presumable an issue is in front of the Supreme Court because precedent was either unclear (and therefore the court felt the need to clarify itself) or inadequate (and therefore the court felt the need to revisit a previous ruling). Still, it makes sense when interpreting any document to consider how others have interpreted similar documents, whether that document is religious, legal, or literary. Furthermore, grounding a ruling in precedent gives it greater weight, especially on controversial matters. Courts and judges can feel more comfortable making necessary but unpopular rulings if they can pass some of the responsibility of that ruling to others, be it their fore-bearers or other courts in other places. Oh, and don’t think for a minute that the Supreme Court has only recently begun looking to other countries for precedent. First of all, American state courts frequently look at precedents in other state courts, even in cases where the laws, customs, and cases are somewhat different. Second, remember that the entire American legal system is based on English Common Law, and it was extremely common for early American courts to look back at English precedents when making decisions.
Societal Impact Rulings, of course, don’t take place within an intellectual vacuum; they affect real lives and real people. Therefore, one important factor in a decision is the impact that this ruling will have on society as a whole. For instance, I may believe that the commerce clause ought to be narrowly interpreted, and I may be able to find substantial precedent for my interpretation in many areas. But if I try to use that power to decide that the entire system of federal welfare, food-stamp, and health-care laws is an over-reach of federal authority, I will do a lot of damage to a lot of people. Perhaps the more prudent course, instead, will be for me to make narrow rulings on the commerce clause within the strict confines of particular cases, with the goal of making change slowly over time; so maybe that in twenty or thirty years, society is at a point where a complete reexamination of welfare law will create less of an impact. Similarly, judges have to consider the prejudices and problems of society when making a decision. Separate-But-Equal works fine as an intellectual exercise, if both groups have equal political power and there is a minimum of institutional bias built-in, and it does not in theory violate Constitutional principals. In practice, however, Separate-But-Equal doesn’t work at all as a viable system for providing equal justice, representation, and opportunity to everyone. It therefore creates a social environment antithetical to constitutional goals, which is why the courts overturned the system. In theory, a judicial activist is someone who only considers the societal impact of a ruling without taking into account the actual text of the laws at hand.
All justices are influenced by all of these when making a judicial decision. All justices study the text of the document, framer intent, precedent, and societal impact before making a decision. What really separates one judge from another, however, is the relative weight they give to one or another. Scalia, for instance, has a reputation for giving a lot of weight towards the text of the document, while he is known for being less respectful than others for precedent or for how his ruling will impact society. O’Connor had the opposite reputation; she was quite willing to take a very broad reading of the text if doing so would make society a little better without rocking the boat too much.
The lesson, of course, is to not buy into the rhetoric. When considering a nominee’s judicial philosophy or record, it is important to think about the relative weights that he gives to each of these factors. But any nominee should consider all of them at least somewhat; a judge that cares nothing for the context and influence of his decisions is just as bad as a judge who cares nothing for the text. Furthermore, we don’t want a court with Madison, Hamilton, and Jefferson clones on it, anymore than we want a court with John Marshall or John Jay clones on it. Jurists on the Supreme Court should be intelligent and capable men and women, who are respectful of precedent, intent, text and society. Anything less is unacceptable.
Oct 312005
As you probably heard, President Bush announced today that Judge Samuel A. Alito, Jr. is his next nominee to fill O’Connor’s seat on the Supreme Court. I am reserving judgement on the Judge Alito until we know more about his record, although at first glance he seems like a reasonable nominee. He’s been an appellate judge for over fifteen years, he seems to be well liked and well respected among the judicial community, and at least so far no one has come up with any rulings that are too off-the-wall. And unlike Roberts and Miers, he has a significant paper-trail, so we are likely to hear quite a bit about him over the next few months.
Politically, this nomination was a bit of a risk. President Bush wanted to get another name out into the public eye quickly, if nothing else to push the scandals, mistakes, and tragedies of last week off the front-page. So far, so good. And certainly no one can accuse Judge Alito of being unqualified or a Bush crony. He’s been an appeals court judge at the federal level for over fifteen years; you don’t get better qualifications than that. He has also been through a confirmation process before. By rushing the nomination, however, they run the risk of not fully vetting the candidate; it increases the possibility that Judge Alito may have some skeletons in his closet that could derail the nomination and further embarrass President Bush. Also, because Judge Alito has such an extensive and public judicial record, there is some possibility of finding some things that he once wrote or said that will come back to haunt him now.
As for the politics of it all, well, so far everyone is seeing in Alito what they want to see. Moderates on both sides of the aisle are cautiously optimistic that Alito could be moderate enough to have a smooth confirmation and allow the Senate to get some real business done pretty soon. Radicals on both sides are hoping that he will prove to be so conservative that he will force a knock-down drag-out fight that could fundamentally alter forevermore the way that the Senate confirms judges. If that happens, keep an eye on the gang of fourteen:
John McCain (R-AZ) will support, at least publicly, if he has any hopes of running in 2008.
Lindsey Graham (R-SC) has already given unconditional support, which is not surprising, and indicated that Judge Alito is not the extremists that he had in mind when he signed off on the compromise; he was the most conservative of the gang. Also on the judiciary committee.
Michael DeWine (R-OH) Has expressed support for the nomination already, and is a member of the judiciary committee. If the nomination is filibustered on the Senate floor, however, keep an eye on both him and John Warner (R-VA); they will be the swing votes on any Republican attempt to change the filibuster rules.
Olympia Snowe (R-ME), Susan Collins (R-ME), and Lincoln Chafee (R-RI) could decide to buck the president on this nomination, if they so choose. If the hearings go poorly for Judge Alito, these three could make life very difficult for the nominee on the Senate floor. Don’t expect any of these three, nor McCain for that matter, to support any attempt to eliminate the filibuster.
Joseph Lieberman (D-CT) is the wild card on the Democratic side. His support for Alito would seal the deal; his public opposition could signify that a filibuster is in the works. Expect him to play his cards close to his chest, however, until well into the confirmation hearings.
Ben Nelson (D-NE) will also be an important player in all of this. He was reportedly the Democrat most responsible for putting the Gang together. He doesn’t carry enough weight or seniority to make as big a splash as Lieberman, but if he supports Alito (and there will be significant pressure on this conservative Democrat from Nebraska to do just that), a filibuster would become extremely difficult.
Expect the other Democrats in the gang–Robert Byrd (D-WV), Mary Landrieu (D-LA), Daniel Inouye (D-HI), Mark Pryor (D-AK), Ken Salazar (D-CO)–to follow the party line on the filibuster, but to vote for the nomination should he come through the committee unscathed. That being said, Byrd could find himself in quite the bind; he is facing a more significant than usual challenge in 2006, and has to be careful about being perceived as too liberal.
Finally, the most important role in all of this, of course, will be played by the Chairman of the Senate Judiciary Committee, Arlen Specter (R-PA). Specter will play the loyal Republican soldier in the public eye, for now, and will do nothing to impede Alito’s progress through the committee. But if this whole business comes to a contentious floor fight or a potential filibuster, Specter had better be convinced that Judge Alito will be respectful of precedent, especially on Roe v. Wade. Specter’s a smart guy, he enjoys going on television, he’s popular with moderates across the country, he has no intention of running for President, and he was attacked ruthlessly by the Religious Right during his last primary campaign because he is pro-choice. If push comes to shove and Specter is not fully convinced, he could make life very hard for the nominee.
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