Silent Justice

This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.

Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.

Thomas has offered a number of explanations for his disposition in interviews, speeches, and his memoir, My Grandfather’s Son. It’s not due to shyness– those who’ve met him report an outgoing character with a delightful sense of humor— but he has cited the shy demeanor he developed as a child who grew up speaking an English dialect, Gullah, as instilling a propensity for quietness. He also has criticized his colleagues for overplaying the judge’s part during oral arguments (“I have no idea what they are doing”) and, as a consequence, does not want to contribute to the cacophony he hears coming from the bench. A third common explanation references the often-acknowledged reality that appellate judges have read the parties’ briefs prior to oral argument and likely already made up their minds. The written briefs, Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position.

For anyone not predisposed to dislike Thomas for any number of irrational reasons, any one of these responses would seem to be an objectively acceptable explanation. Neither his responses nor his consistent pattern of practice has dissuaded observers and critics from continuing to question his silence, however. Among the questioners is his colleague, Justice Antonin Scalia, who thinks Thomas should engage in oral argument for his (Thomas’) own benefit. Off the bench, others are recognizing Thomas’ importance and basing their objection to his silence in that realization. Singling him out “because his silence is so unrelenting, his opinions are so far-reaching, and his position on the nation’s highest court is so influential,” one academic writes:

Rarely has a Justice said so little but had so much to say….Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process-and weakens the legitimacy of the far-reaching conclusions…that Justice Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court….Justice Thomas should end his silence, both for his own benefit and for the Court’s.

David A. Karp, Why Justice Thomas Should Speak at Oral Argument, 61 Fla. L. Rev. 611, 613-14 (2009). Karp and Scalia agree that Thomas should participate for his own sake. If, contrary to his assertions about his own behavior, Thomas really is just sticking his head in the sand, the self-help rationale might make sense. There is no suggestion, though, that he does not participate in the justices’ conferences or consult with them outside of the courtroom, and it is said that he is respected by his colleagues as a skilled opinion writer. Thomas certainly both is aware of his silence and knows how to ask a question if he has one; he’s done it before, if infrequently. It is not implausible to think that a justice could make up his mind after reviewing a case’s written record, which probably includes three briefs (petitioner’s brief, respondent’s brief, and petitioner’s reply brief), two lower court opinions (trial court and intermediate appellate court), a trial record, and other filings like motions and amicus briefs. If nothing else, the suggestion that “Thomas should end his silence…for his own benefit” comes off as a bit of a slight. Id. at 614.

The other reason Karp says Thomas needs to ask questions is for the benefit of others. Karp’s concern seems to stem from the “radical” nature of Thomas’ views, id. at 613 (quoting Erwin Chemerinsky, Foreword: Justice Thomas and the First Amendment, First Amendment Center (Oct. 8, 2007)), and Karp’s belief that advocates would better be able to inform those views if Thomas asked questions to guide their responses. It is not obvious that this is a statement of the proper attorney-judge dynamic, but even if it is, it may not be sufficient to require Thomas’ participation. After more than eighteen years on the Supreme Court, his judicial philosophy, unique among the sitting justices, is well known and, by its nature, not prone to radical shift. Just as justices write their opinions in inclusive ways to try to secure the votes of colleagues, so too should advocates draft their briefs to speak to the peculiar concerns of the justices who will be deciding the case. In short, if a lawyer wants Thomas’ vote, he or she has a pretty good idea how to get it.

Thomas has his defenders, including Supreme Court litigator Steffen Johnson, who says Thomas’ cold bench demeanor “reflects humility on his part,” and, contrary to Karp, the lawyer’s role at argument is to support and assist the justices.

The aim of this post is not to mount a full defense of Thomas’ silence or his judicial philosophy. It merely is to push for a fair and reasonable look at one aspect of his public temperament. I favor richness in public discourse, and Thomas’ voice at oral argument would contribute to that richness. If nothing else, it might force his critics to read his writing and thereby engage with him on a deeper level. While it’s not possible to know for sure why he usually keeps quiet during oral arguments, I can appreciate Thomas’ apparent recognition of the value of listening and the effect it might have on the other justices if they listened to his silence.

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Don’t Cross the Streams: A History of Constitutional Rights

During the period between the completion of the drafting of the Constitution and the states’ ratification of the document, one of the major debates was over the protection of civil rights. Concerned Americans saw the Constitution as a worrisome concentration of power compared with the loose Articles of Confederation it was replacing. With the abuses of the British monarch fresh in their minds, this group, known as the Anti-Federalists, argued for the inclusion in the Constitution of a bill of rights. Their position was that formally stating the people’s rights would impede the government’s ability to infringe them.

The Federalists, proponents of the new Constitution, opposed the call for a constitutional statement of rights, and not because they wanted to aggrandize the government’s powers (a charge their leader, Alexander Hamilton, would face throughout his life). The Federalists were just as concerned about governmental abuse, but they had a different vision of the Constitution. They saw the new government the Constitution proposed to create as a government of enumerated, and therefore limited, powers. The Constitution’s text mostly contains grants of power to the government, and the Federalists’ view was that the government would have these powers and no others. To act, in other words, the government would have to be able to point to the constitutional provision that authorized that action. An enumeration of rights, the Federalists feared, would similarly limit rights and make it easier for the government to infringe them.

The Federalists were the country’s first political party and they dominated the early American political scene, but James Madison and the Anti-Federalists won the rights enumeration battle. Immediately following ratification of the Constitution in 1789, Madison successfully shepherded ten constitutional amendments through the amendment process. Unlike the document they amended, these ten Bill of Rights provisions mostly state restrictions on government authority.

The Anti-Federalists won the day, but the Federalists’ fears were prescient. Government power expanded under the Commerce Clause, Art. I, § 8, cl. 3, and the Necessary and Proper Clause, Art. I, § 8, cl. 18, and the Supreme Court upheld the carving away of the rights the Bill of Rights was intended to protect. Even the First Amendment’s strong, direct language on free speech that “Congress shall make no law…abridging the freedom of speech” has not proved sufficient to protect that right absolutely. The Supreme Court upheld a conviction under the Espionage Act of 1917 of a man who mailed anti-war pamphlets to drafted soldiers and established the “clear and present danger” test, allowing prohibition of any speech that creates “a clear and present danger that [it] will bring about the substantive evils that Congress has a right to prevent.” Schenck v. US, 249 U.S. 47, 52 (1919). In Gitlow v. New York, 268 U.S. 652 (1925), the Court upheld the authority of state governments to restrict statements that, “by their very nature, involve danger to the public peace and to the security of the State.” Gitlow, 268 U.S. at 669. The Court said that the states have the authority to define the expanse of this restriction, id. at 668-69, and upheld the conviction of the distributor of a leftist tract. Both of these cases are good law today, as are numerous other decisions upholding limitations on the rights the Bill of Rights was intended to protect. This article, to be taken with a grain of salt, presents examples of limitations of these rights.

While the Third Amendment’s protection against the forced quartering of troops may be the only enumerated right to survive the past 220 years wholly unscathed, the enumeration of rights presented a second challenge to citizens’ rights. Besides confining rights to language susceptible to restriction, the Bill of Rights also created a closed universe of rights. This second consequence requires citizens to be able to point to a specific authority to authorize protection of the rights they are claiming. This is most apparent in the litigation over a right of privacy, a mother’s right to an abortion, and homosexuals’ right to marriage. Each of these areas is at a different stage, but in each, the Court has required those claiming the right to locate it within the Bill of Rights or deeply rooted tradition. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 122-23 (1989) (“We have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’…but also that it be an interest traditionally protected by our society….[T]he Due Process Clause affords only those protections ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’…Our cases reflect ‘continual insistence upon respect for the teachings of history [and] solid recognition of the basic values that underlie our society.'”) (quoting Snyder v. Mass., 291 U.S. 97, 105 (1934) and Griswold v. Connecticut, 381 U.S. 479, 501 (1965)).

Modern proponents of judicial conservatism scoff at the labors of the Griswold and Roe v. Wade, 410 U.S. 113 (1973), Courts (to take two well-known examples) and their tenuous (“activist”) attempts to root rights to privacy and abortion, respectively, in the Constitution and foundational tradition. In some ways, though, this all seems to be mixed up. Judicial conservatives are supposed to be interested in limiting the government to its enumerated powers and conducting original meaning interpretation of the Constitution and statutes. They seem to have crossed over, however, when they combat the work of those they label judicial activists, at least when it comes to civil rights. Judicial conservatives tend to give short shrift to the Ninth Amendment, for example, which states, with brevity: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment, the argument goes, does not confer any rights, but merely states some abstract sense about the Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 91 (2000) (“[T]he Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”) (Scalia, J., dissenting).

The Federalist Society today uses James Madison's silhouette as its logo, but it was Madison who broke from the Federalist Party and produced the Bill of Rights, which, under one view, has led to the restriction of liberty and the expansion of government into the private sphere in the years since 1791.

The Federalists’ view of a limited government of enumerated powers at least suggests the corollary that the people retained the broad liberty that was everything beyond the government’s limited scope. Unlike the government, the people should not have to identify authorization for their actions. To hold otherwise means that the Constitution (and its Amendments) was meant to constrain people and the government in like manner. It means that the Constitution grants people certain rights just as it grants government certain powers.

Even if the Bill of Rights was not intended to so limit rights, the enumeration of rights has contributed to a modern reality in which judicially conservative and liberal judges believe they must locate and anchor rights in the Constitution and deep tradition.

The shifting identities of the Democrat and Republican parties (especially during the period between the Civil War and today) are familiar, but the shift described in conceptions of civil rights and government power is of greater consequence than the policy connotations of the letter next to a candidate’s name. Today’s civil rights advocates are laboring under the burden their predecessors created for them. Instead of preserving a conception of rights that allowed people the full range of liberty (less those things state and federal criminal law properly prohibits), the Bill of Rights confined liberty and eased further restriction. This forces rights advocates to be judicially activist, stretching the meaning of or combining individual Amendments to justify a claimed right. Rather than than retaining the broad balance of liberty, the people must look to the government and the Constitution to find their rights. This seems like a reversal of the original American position. Even if the Ninth Amendment is not entitled to substantial weight, the notion that people must be granted rights is a transformative twist on the view that it is the government, and the government alone, that is to be granted its authority through constitutional enumerations.

It is not obvious why things developed this way, but today, the message is clear: rights claimants bear the burden of justification for their desired actions, and judges who claim to use strict interpretive methods and seek original understandings support this result. Apparently opposing judges, by laboring to “find” rights to privacy and abortion, for example, within the Bill of Rights, nevertheless do not attack this premise. This shift has led to a civil rights landscape arguably much different than the one the Anti-Federalists (and Federalists) imagined.

A Government Divided Against Itself Cannot Shrink

Libertarians and some conservatives are known for favoring small government principles. See supra here. To that end, they sometimes prefer a political arrangement in which the president and the dominant congressional delegation are of different political parties. This arrangement, known as divided government, is thought to slow the wheels of government spending and regulation, things libertarians largely oppose. The basic logic is that, because both Congress and the president must approve all legislation, see INS v. Chadha, 462 U.S. 919 (1983) (upholding the requirement of bicameralism plus presentment), formal friction between the legislative and executive branches in the form of party misalignment will impede the passage of new legislation.

A counterexample, the years of George W. Bush’s presidency, seems to support the divided government logic by negative inference. For the first six years of President Bush’s tenure, at least fifty percent of the members of the House and Senate were Republicans. During those years (the 107th, 108th, and 109th Congresses), Bush vetoed only one bill. When Democrats controlled slim majorities in both Houses during Bush’s final two years, the President issued eleven vetoes, and the 110th Congress overrode four of them. (For context, the only post-Civil War presidents to issue fewer vetoes were James Garfield and Warren G. Harding. President Garfield was shot two months after his inauguration and died having served only 199 days. President Harding served for less than three years before he too died in office.) See here (detailing presidential vetoes).

Because libertarians often are dissatisfied with both major party presidential candidates, they may cast their votes for divided government by supporting the candidate whose party the voter believes will not control Congress following the election. Ilya Somin, a law professor at George Mason University School of Law and frequent contributor at the Volokh Conspiracy, used that approach to justify his support of Senator John McCain in the 2008 presidential election. (“My belief that John McCain is the lesser of the available evils in this election is largely based on the advantages of divided government.”) Professor Somin’s divided government paradigm has led him to support, at least in writing, Democrats too, as he did when he expressed hope that that party would increase its congressional representation in the 2006 election. (For Professor Somin’s lucid explanation of his views on divided government, see here and here.)

The logical link between divided government and small government seems intuitive, even obvious, at first blush. Empirical studies like the veto counts mentioned above may indeed bear it out. Others, however, point to less intuitive consequences of divided government, some of which may undermine the small government connection. Robert A. Kagan, law professor at Boalt Hall, argues that “in an era of divided government and weak political party unity, American legislation got worse”:

Thus in the United States, beginning in the late 1960s, politically divided government and fragmented political parties encouraged and enabled organized interest groups…to demand statutory amendments that would help them exert influence on policy implementation and challenge unsympathetic administrative officials in court. American statutes have always been less carefully drafted, and hence less coherent, than those of, say, the British Parliament, in which cohesive majority governments need not compromise with the current minority. But in an era of divided government and weak political party unity, American legislation got worse. In Congress, statutes had to be painfully stitched together by shifting, issue-specific coalitions. Legislative proponents and presidents could gather support for their bills only by adding a variety of loopholes and side-payments demanded by a  multitude of stakeholders. Individual senators and House subcommittee chairs often added hastily drafted last-minute amendments. Divided government did not block congressional lawmaking but it made legislation more complex, lengthy, and confusing. Multisubject omnibus acts…resembled incoherent patchwork quilts, laden with legally contradictory or incomprehensible provisions. This style of legislation magnified legal uncertainty, virtually demanding subsequent litigation and judicial reconstruction of congressional policy.

Robert A. Kagan, Adversarial Legalism: The American Way of Law 49 (Harvard University Press 2001) (internal citations omitted).

I met the government accidentally, in St. Paul, MN

Proponents of the divided government theory may argue that Professor Kagan says nothing about the size of government. The picture he presents of the results of divided government cannot be reassuring to those like Somin, however. Kagan’s account does not mention any reduction in government activity, but instead presents a messy legislative process resulting in litigation that drives policy choices into the arena of the unelected judiciary and a perceived need for additional correctional or expansive legislation. Instead of slowing down, under Kagan’s divided government story, government trucks along but with frustrating results: “In an era of divided government and weak political party unity, American legislation got worse. …Divided government did not block congressional lawmaking but it made legislation more complex, lengthy, and confusing.” Id. If divided government fails to deliver substantial decreases in the size of government– and even if it succeeds to some extent– the costs may be higher than a small government proponent wants to bear, especially where some of those costs cut against small government ideals.

Perhaps the divided government theory overestimates the value of party affiliation as a determinant of individual behavior. Many political observers today note the similarities between the parties, especially when it comes to government size. Even granting the viability of the Blue Dog Democrats and the emerging fiscal conservatives in the Republican Party, in practice, politicians of all stripes seem to like power and act to enhance that power. If that’s the case, libertarians might find conventional political action in favor of candidates who support their views to be the best approach, however few of these candidates may exist.

Elections United?

Last month, the Supreme Court decided Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), holding that the First Amendment prevents the government from limiting political speech in the form of corporate funding of a feature-length film. The government cannot restrict certain disfavored speakers like corporations. Political speech is important to democracy regardless of the speaker. Specifically, the Court struck down a provision of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155 (2002) (commonly, the McCain-Feingold Act), prohibiting the broadcast by corporations and unions of election-focused information in the days before a presidential primary or election. Justice Kennedy’s majority opinion retained the Act’s relevant disclosure requirement and proscription of direct donations by corporations and unions to candidates.

The decision sparked substantial reaction in the days following its release, as people waded through the fractured decision (basically, 5-4 against the speech restriction, 8-1 in favor of maintaining the disclosure requirement, with five different opinions authored– Kennedy for the majority, Chief Justice Roberts concurring, Justice Scalia concurring, Justice Stevens concurring in part and dissenting in part, and Justice Thomas concurring in part and dissenting in part). President Obama added a new twist to the conversation when he weighed in on the decision in his first State of the Union Address, less than a week after the Court decided the case. With a majority of the justices present, sitting in the front row, the President noted his “due deference to separation of powers” and opined:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

(Emphasis added.) At this moment, television cameras panned the audience, catching Justice Alito mouthing “not true,” apparently in response to the President’s assertion that “foreign corporations” are among those “special interests” for which the decision opened “the floodgates.” SCOTUSblog‘s Lyle Denniston highlights a relevant portion of the majority opinion:

That section said: “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”  The opinion then cited a provision of federal law[.] In essence, that provision bars any “foreign national” from making any direct or indirect contribution of money or anything of value “in connection with any federal, state, or local election[.”]

The clear implication of the phrasing is that the Court, in the future, might well uphold such a ban by finding that the Government did, indeed, have a strong interest in keeping foreign money out of U.S.  campaigns, at any level of government.

The Court’s statement that it “need not reach the question” hardly “open[s] the floodgates.” At very most, it suggests that a majority of the Court is willing to overturn that provision, but a fair reading yields the simple position that the Court is not addressing questions it does not have to answer and is clarifying the scope of its holding. This is a common, widely accepted practice of the Court’s. Congressional Democrats nevertheless sprung to action. Senator Al Franken‘s office said that the President’s statement, quoted above, “urged…legislative action.” In explaining his decision to introduce restricting legislation, the release stated: “Nothing in our current laws, however, explicitly prohibits foreign companies from creating American subsidiaries or getting control of American companies and using them to flood the airwaves in support of their preferred candidates.” This assertion contradicts Denniston’s statement, quoted above.

Whether the first-term Senator or the journalist who has covered the Court for fifty years is stating the law accurately, a more interesting question persists: should we exclude foreign corporations from influencing American elections?

One starting place is to wonder whether exclusion is possible to a meaningful extent. Not only do many foreign corporations have a substantial presence in the U.S., many companies people think of as “American” actually are foreign-owned (e.g., Anheuser-Busch, Ben & Jerry’s, Trader Joe’s, 7-Eleven, Firestone Tires). If one is concerned about the influence of individual foreigners, the scope is even wider, expanding to include American corporations run by people born abroad (e.g., PepsiCo).

Others have speculated on the complexity of this subject, given globalization realities:

In a world characterized by high levels of political and economic interdependence, one wonders whether there can be any pure cases of domestic political change, untouched by significant external influences. The exceptions are likely to overwhelm any generalized prohibition of intervention based on the importance of allowing people to work out their own salvation.

Charles R. Beitz, Political Theory and International Relations 87 (Princeton University Press 1999) (1979).

Even if it were possible to craft legislation that could separate foreign corporations from domestic ones as a matter of identification, is this a desirable, justifiable distinction? The combination of the Constitution’s Article II § 1 and Twelfth Amendment limit eligibility of the offices of president and vice president to “natural born Citizen[s],” but no other office is so limited. Reasonable justifications exist for this restriction, but do they apply to a restriction on foreign influence in election campaigns? Is there a different basis for justifying the proposed exclusion? Or is it simply an easy way for those opposed to corporate spending in campaigns generally to cut back on a (possibly substantial) portion of it?

Justified or not, the issue of restricting foreign influence on domestic elections matters to people on both sides of the aisle. Before the recent legislative initatives by Democrats mentioned above, the Republican National Committee accused Obama of failing to disclose campaign donations from abroad, and foreign celebrities like Sir Elton John have involved themselves in U.S. presidential campaigns.

Finally, if we are concerned about foreign influence on domestic elections, should we be concerned about interstate influence on state and local elections?

There are reasonable intuitions as to why we would want to steel our elections from foreign influence, even if it it is a practice that Americans have engaged in abroad. Setting aside golden rule and reciprocity concerns about political intervention, the failure to enunciate a basis for exclusion impairs this debate.

If Law is King, its Subjects are Failures

If there is one thing government officials, legal professionals, and scholars share, it is a belief in the rule of law and its importance to stable, functioning society. The rule of law is a foundational tenet of American government. The rule of law means that the law itself is supreme, and that no individual is above the law. Those looking to advise and guide struggling and developing countries emphasize the necessity of rule of law principles for success.

It is almost certain that a rule of law regime is the best structure for a stable democracy, and its absence likely will lead to unworkable mayhem. It is right to consider installation of rule of law principles an achievement, but it is also right to desire more. Rule of law is the good (the best, perhaps), but not the perfect, and we should be wary of celebrating law to the point of glorification.

Nearly one year ago, the American Bar Association asked its online readers, “What’s Your Favorite Law and Why?” The responses were full of obscure, humorous, arcane, rigorous, moral, and other laws. One commenter took a different tack:

The answer to the question, “what is your favorite law,” for me must be “no law.” I am no anarchist, but that doesn’t mean I like any of the laws that are on the books. (Commenters have addressed structural and procedural “laws,” but these are not really laws so much as they are rules for order and operation.) Each law enacted by Congress and by State and local legislative bodies represents a response to behavior on the part of the governed unacceptable to the collective whole. Are we so base and immature that we need some Great Legislator to draw lines in the sand before us? Are we so passive that we docilely accept the ever-expansive lawmaking of lesser legislators as controls on our lives, controls on which many have come to rely for their basic understanding of good and evil, acceptable and unacceptable?

No, my favorite law is “no law,” because “no law” exists where no law is needed, requested, or prescribed, and this is the world in which I would like to live.

Are we there yet?

Perhaps he or she was was writing for effect, but if it’s true that laws represent “a response to behavior on the part of the governed unacceptable to the collective whole,” is it appropriate to treat the rule of law as a final achievement?

Thomas Hobbes: Total Warrior

That the law applies with equal force to all is a noble ideal, but its necessity implies a failure in human conduct. This is not to say that those with the means should not work to develop rule of law principles in countries in which they are lacking. Rather, the suggestion is that those who have achieved broad acceptance of the rule of law in a meaningful, practical way should not view their task as complete. The next major landing point might be a society that exercises self-restraint on the collective and individual levels. The final goal might be a society in which even self-restraint is unnecessary because people lack the urge to act in ways that today require external (legal) and internal (self) restraint.