It’s debunked by Adam Liptak’s sources in a good piece this weekend: “If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.” [New York Times; Jonathan Adler] More: Watch author Clark Neily, cited in Liptak’s article, speak recently at Cato about his new book Terms of Engagement.
No fewer than three friends of Overlawyered (and I’m probably forgetting some) have new books out on constitutional law and political theory. Clark Neily has just published Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government (more), Ilya Somin has just published Democracy and Political Ignorance: Why Smaller Government Is Smarter (review), and Josh Blackman has just published Unprecedented: The Constitutional Challenge to Obamacare (review; triple mini-review by Tim Sandefur of all three books with preview of two more). Congratulations to all!
I’m quoted in this report today in the Washington Times by Annie Yu:
“It’s often not realized that much of the civil rights movement in the 20th century was a movement for economic liberty against economic restrictions,” said Walter Olson, senior fellow at the Cato Institute’s Center for Constitutional Studies. “Many of the landmark decisions in the courts were on the basis of economic liberty.”
David Bernstein of George Mason has written in detail about how the old Jim Crow system was based on massive regulation of private economic decision-making, and how reformers often managed to chip away at it in court by invoking rights of contract, property, and free association. A sampling here and here (Buchanan v. Warley), here (labor regulations, and related), here, and in papers here.
Writing at the New Republic, Simon Lazarus of the left-leaning Constitutional Accountability Center says “the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters… has shown up among court-focused conservative constituencies and advocates and begun to register at the Supreme Court.” He cites the Cato Institute’s remarkably successful amicus curiae season (mentioned earlier in this space) and discerns in the majority an “appetite for doctrinal resets aimed at crippling federal regulatory power.”
In response, Randy Barnett, whose writings have been influential in advancing what libertarian tendencies may exist on the Court, writes “I wish it were so. … For a few reasons, the Court has become more ‘libertarian’ than its members.” Ilya Somin disputes Lazarus’s claim that the ObamaCare challenge invited the Court “‘to junk the “New Deal settlement” that bars constitutional interference with regulatory and safety net legislation.’ Even if the challengers had prevailed on every point at issue in that case, Congress would still have sweeping authority to regulate virtually any ‘economic activity,’ and state governments would have even greater regulatory authority than that.”
The new four-judge decision is unanimous, which means every judge to consider the matter has now agreed that the NYC Department of Health overstepped its legal powers. And they’re right, as I explain here at Cato. Earlier here, here, here, etc.
One person who presumably had not expected today’s result is Emily Bazelon at Slate, who has claimed that Judge Milton Tingling’s trial-court decision was somehow a venture into conservative activism. None of the New York appellate judges heard from today give evidence of sharing that view.
In my new CNN.com piece I argue that we shouldn’t let anger over the Zimmerman acquittal shred the rights of criminal defendants: “awarding new powers to prosecutors will likely mean that more black people will end up behind bars.” [CNN](& Steele; thanks for Instalanche to Glenn Reynolds)
P.S. Some may wonder whether a toughening of hate crime laws might be an exception to the general rule that minorities have much to fear from a broadening of grounds for prosecution. Leaving aside whether the hate crime issue has any relation to the Martin/Zimmerman case (few lawyers believe Zimmerman could be found guilty of a hate crime, and when the FBI investigated him last summer it found no evidence of racial motivation; more on this from Michelle Meyer), per FBI statistics for 2011, blacks are actually overrepresented among persons charged with hate crimes, at 21 percent compared with 14 percent of general U.S. population.
At Utah’s Deseret News, reporter Eric Schulzke writes on how “the U.S. Bill of Rights remains a work in progress 222 years after it became law — a continuing struggle between government claims for order and security, and the individual’s interest in clarity and freedom. This past year, the struggle played out in numerous areas, including free speech and search and seizure rules, to touch just a few.” He quotes me on the hope of bright-line rules establishing the public’s right to take pictures of law enforcement (recent Hawthorne, Calif. cause celebre here), on the need to focus on state and local police use of DNA databases before the inevitable abuses establish themselves, and on how four significant Fourth Amendment cases made it to the Supreme Court this year: “‘Here we are 200 years later, and a lot of big, interesting questions still haven’t been settled on what the Bill of Rights says about search and seizures,’ Olson said.” A sidebar reviews the year in civil liberties controversies.
“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]
Max Kennerly outlines the implications for civil lawsuits when someone involved chooses to invoke 5th Amendment rights against self-incrimination.
On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.
The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.
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I respond at Cato to a remarkably lame piece by Slate’s Emily Bazelon. Earlier on the case here and here.