Thursday, June 05, 2008

Legal Realism at the AALS Con Law Conference

I’m currently attending the Association of American Law Schools Conference on Constitutional Law in Cleveland (described here). Tomorrow, I’ll give an address at the Lunch Session, with an accompanying post on this blog. For today, I thought I’d say a few words about yesterda morning's plenary session. The panel members---Erwin Chemerinsky, Eric Segall and Lee Epstein---offered their respective takes on “The Changing Roberts Court.” Here’s a very condensed summary:

Chemerinsky: With the Roberts and Alito appointments, we are now seeing the longtime dream of Republican Presidents finally coming to fruition. Conservatives have consolidated their power, as Justice Kennedy doesn’t often swing liberal, and he’s now the median Justice.

Segall: It’s true that Kennedy holds the balance of power, but he really is a centrist. In fact, there are two Justice Kennedys (Segall’s formulation. I would have said “Justices Kennedy.”) There’s formalist Kennedy, who writes and joins ordinary sounding opinions based on formal legal materials, and then there’s romantic Kennedy, who talks about the mystery of life, the equality and dignity of persons, etc. I (Segall) like romantic Kennedy better because he doesn’t try to dress up value judgments in the misleading garb of the law.

Epstein: If we look at the numbers, we see only one real discontinuity over the last forty years, and that was when the Warren Court gave way to the Burger Court. At the end of the Warren Court, Thurgood Marshall was the median Justice; at the beginning of the Burger Court it was Byron White. That’s a huge swing, much greater than the swings we’ve seen since: Powell to O’Connor to Kennedy.

Here I’ll register two of my own observations based partly on what panelists and audience members said.

1) Let’s assume that Justice Stevens and only Justice Stevens retires some time during the next Presidency. Pretty much regardless of who a President Obama names to the Court, Justice Kennedy will remain the median Justice. However, a President McCain is likely to nominate someone in the Roberts/Alito mold, meaning that Alito (who thus far as a Justices appears ever so slightly less conservative than Roberts as the statisticians measure these things) or the new Justice would become the median Justice, which is a substantial shift to the right from Justice Kennedy, at least on some important issues.

2) I was struck by how nakedly legal realist these analyses all were. There was core agreement among the panelists that the Justices’ ideologies and values determine outcomes in the Supreme Court in constitutional cases. That view is consistent with the possibility that law has some content independent of judges’ values, of course: the Supreme Court takes cases in which the law is unclear, so the sample is skewed. Still, in my view (as I’ve argued in some of my academic work) even on the Supreme Court the “attitudinal model” is only a part of the story. (Epstein, to her credit, said as much, even though she is one of the top 3 attitudinalists in the country.)

One question I raised for the panelists is this: How should theses sorts of legal realist insights about politics be integrated into a course on constitutional law? Law students pretty clearly pick up on the lesson that the Court makes “political” decisions, and so one cannot and should not hide that fact from them. Yet at the same time, we are trying to teach them to be competent lawyers, and it’s a category error to say to a judge “decide the case this way because it conforms to your values.” Chemerinsky’s answer was to say that when he writes a brief for the Supreme Court, he “pitches” his legal argument to the Justice he believes to be most in play, these days Justice Kennedy. “If I could put Justice Kennedy’s picture on the cover of my brief, I would,” Chemerinsky noted. That’s fair enough, but it doesn’t really come to grips with the attitudinalists’ claim (and Chemerinsky’s own agreement with that claim)---which is that legal arguments don’t really matter in the Supreme Court. This, I think, is evidence for my view, which is less reductionist: Justices’ ideology/values matter a great deal, but legal argument matters too, even in hard cases. If it didn't, one couldn't "pitch" a legal argument at all.

Posted by Mike Dorf


Sobek said...

"However, a President McCain is likely to nominate someone in the Roberts/Alito mold..."

I wish, but I doubt it.

(1) McCain is too in love with his image of himself as a maverick to nominate a Roberts or an Alito. The Gang of 14 deal demonstrates that he's more concerned with centrism (such as it is) than with fighting for conservative ideology.

(2) Even if McCain were to nominate a Roberts/Alito, he won't have a Senate that will confirm. I strongly doubt the Republicans will even keep the seats they have this November, let alone pick up more. And the Dems know this, and will fight anyone to the right of, say, Stevens.

(3) McCain knows or will know (2), above, and won't want to take the risk of nominating someone who gets shot down. That probably means no stealth candidate, and it virtually guarantees no conservative candidate with a paper trail.

(4) Even if McCain had it in him to fight for a conservative, his idea of what "conservative" means is vastly different from his base's thoughts on the matter.

I agree with you that if President Obama replaces Stevens, or even Stevens and Ginsburg (the next oldest) there will be no real shift on the Court.

Mortimer Brezny said...

Justices’ ideology/values matter a great deal, but legal argument matters too, even in hard cases. If it didn't, one couldn't "pitch" a legal argument at all.

Even so, isn't there a difference between (a) giving a Justice the most persuasive legal argument/rhetoric to cover/legitimate his voting behavior and (b) actually trying to persuade judges with legal argument? The former is akin to writing a signature-ready draft opinion for the Justices you expect to vote your way, the latter akin to keeping an open mind about whom you might attract with your argument. It sounds like Chemerinsky takes cases with a predictable political valence, assumes he has four votes, and then tries for a specific fifth with an argument that fifth voter is already predisposed to accept, based on prior voting behavior. That's different than doing doctrinal analysis in a vaccuum, which is more like what Chemerinsky does in his Introduction to Federal Jurisdiction. I imagine how you style your class depends on whether you want to teach law students how to reach results or how to do doctrinal analysis/pure academic work, but law professors likely each have their own balance, based on their tolerance for theory or practice. It certainly makes sense to teach law students how to make an analytically sound fundamental rights argument, but it also makes sense to explain that setting the level of scrutiny or choosing one canon of construction over another permits judges to toggle the outcomes even if your argument is technically flawless.

Sobek said...

On a completely unrelated topic, how on earth does Obama justify voting against a bill that defines as a "person" a baby that is actually born alive during an abortion procedure? That is, the baby is actually, completely outside of the womb? What interest -- other than abortion for the sake of abortion -- could he possibly think he's advancing?

From today's WSJ: "Mr. Obama said in a speech on the Illinois Senate floor that he could not accept that babies wholly emerged from their mother's wombs are 'persons'...".

Sherry F. Colb said...

Okay, sobek. I'll bite. I did not see the article you mention regarding the vote on whether a fetus that has already emerged from the mother's womb is a person or not, but I have a few thoughts on why someone might be reluctant to answer yes to that question. My first thought is that for many people, the status of an embryo or fetus as a person versus a nonperson depends on what the embryo fetus is capable of doing or experiencing (rather than on the fact that the embryo or fetus is made up of human DNA and has/doesn't have a beating heart, fingers, etc.). For example, some take the view that until the fetus can experience sensations such as pain or pleasure, it is not a person. If the law in question (which I have not read) leaves unspecified the stage of pregnancy at which the failed abortion occurs, then an opponent could reasonably say that because an embryo (or a first trimester fetus or whatever) has not yet acquired whatever characteristics convey personhood, the law is -- at best -- overbroad and objectionable for that reason. A second possibility, regardless of how the statute in question is worded, is that the main constituency for passing laws that define embryos and/or fetuses as "persons" is abortion opponents. A person who supports a woman's right to terminate her pregnancy might, for that reason, oppose such definitional statutes as undesired symbolic gestures conveying hostility to abortion rights, even though one could (as I have argued) believe both that a fetus is a person (and therefore support the statute at issue) and that the law must not compel women to remain pregnant against their will. As I said, I did not read the WSJ article, the bill in question or the speech to which the WSJ refers, so I am speculating in something of a vacuum here.

egarber said...

So if legal realism is an unavoidable component of the landscape, does that make originalism phony -- since a judge will inevitably be selective in her research? Or is originalism the antidote to realism, in that strict narrowness leaves little room for value judgment -- i.e., a practice or idea either existed at the framing, or it didn't?

Mortimer Brezny said...

So if legal realism is an unavoidable component of the landscape, does that make originalism phony -- since a judge will inevitably be selective in her research? Or is originalism the antidote to realism, in that strict narrowness leaves little room for value judgment -- i.e., a practice or idea either existed at the framing, or it didn't?

I believe Scalia's answer is that originalism is better than "nonoriginalism" because it constrains judicial selectivity in research methodology more than the alternatives do.

egarber said...

Hey Sobek,

That seems a bit clipped. I'm guessing there was more to the speech than just that statement. And the bigger context likely qualifies the statement, I would think. How do we know he wasn't making some sort of comment about the bill's language -- i.e., as the bill describes the scenario, it's too broad for me to say we're talking about a "person" in all its possible interpretations. I'm just guessing here. I'm just saying we need to know more about the context.

And even if it's as clear-cut as you describe, that doesn't mean Obama was saying the state doesn't have a compelling interest in protecting that life.

Sobek said...

Prof. Colb and Eric, pardon the delay. I had most of an answer typed up, and the page crashed.

Here's the WSJ link:

And a little more detail from a blogger:

Neither link includes the text of the bill; to the extent that either source misrepresents what it said, I'll stand corrected.

From the second link, "In 2002, as an Illinois legislator, Obama voted against the Induced Infant Liability Act, which would have protected babies that survived late-term abortions." It doesn't sound like an over-broad bill that could apply to embryos; it only applied to "late term" abortions.

And the law only applies to children that are completely outside the womb -- i.e., there is no risk whatsoever that a woman will be forced to carry an unwanted baby, because the law does not apply until she is no longer carrying it in any sense of the word.

More from Obama:

"Whenever we define a pre-viable fetus as a person that is protected by the Equal Protection Clause or the other elements in the Constitution, what we're really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a . . . a child -- a nine-month-old child that was delivered to term."

But the bill applies to third trimester abortions, which means there's no question of viability. Obama's statement tracks with part of Prof. Colb's response: even if there is no interest whatsoever in just leaving a fully born baby to die, we can't cede any ground to pro-lifers.

Not exactly a moderate position, is it? Even NARAL didn't oppose the bill. A federal version passed the Senate unanimously, and with only 15 no votes in the House.

egarber said...


There is some clarification in this piece:

Obama — who joined several other Democrats in voting "present" in 2001 and "no" the next year — argued the legislation was worded in a way that unconstitutionally threatened a woman's right to abortion by defining the fetus as a child.

"It would essentially bar abortions because the equal protection clause does not allow somebody to kill a child, and if this was a child then this would be an anti-abortion statute," Obama said in the Senate's debate in March 2001.

I read this as Barack thinking the wording left too much of an opening for a fetus to be declared a child, creating undue risk that in some hypothetical setting, the woman’s right would be trumped. In other words, the bill’s wording wasn’t sufficiently limited to scenarios clearly outside the abortion rights context .

This leaves open the possibility that he would support a more precisely worded bill, and indeed, he even says he supported the federal rule you mention:

During his 2004 run for U.S. Senate, Obama said he supported similar federal legislation that included language clarifying that the measure did not interfere with abortion rights.

I haven’t seen the legislation in question and am in no position to agree or disagree with his take on the language. But his *reason* is what concerns us here. And that reasoning puts him in the same camp as others -- like Kerry in 2004 – who have opposed bills on the grounds that affording a fetus legal status lays the groundwork for potentially overturning abortion rights more broadly.

egarber said...

I guess another way of putting it is that this isn't going to sway anybody one way or another. It's a typical battle -- the battle for fetal legal status -- in the larger war.

I'm gonna get some of this wrong, but I *think* Kerry had to answer for something similar, when he voted against the federal bill making the murder of a pregnant woman essentially TWO murders. He argued that such wording was really an attack on abortion rights, and said he would support other language defining pregnancy as an aggravating factor (vs. giving the fetus its own status), etc. Again, I might have that wrong in some parts, so I welcome corrections.

And back to the Illinois law, based on my understanding, it's not as if Obama was voting to criminalize protection of an aborted fetus; it was simply that the wording that would have REQUIRED it was too broad in his view.

egarber said...

BTW, with Kerry, I'm talking about the Laci Peterson law (I think).

egarber said...

And lastly, it's probably worth noting that Hillary was attacking Obama for being too SOFT on reproductive rights. So the guy is / was getting hit from both sides.

Sobek said...

"Obama — who joined several other Democrats in voting "present" in 2001 and 'no' the next year — argued the legislation was worded in a way that unconstitutionally threatened a woman's right to abortion..."

If only he had been some sort of elected official at the time, someone with the opportunity to try to change the wording to make it more palatable, so that there would be no ambiguity, but at the same time, actual babies who had actually been born might have some kind of rights, other than the right to be suffocated to death.

And here's a pretty cool video:

Apparently Obama only supports spending money on things that work flawlessly the first time. Even after they have been proven (repeatedly) to work.

I wonder how far that logic goes. Embryonic stem cell research is unproven. Will he pledge to continue the ban on federal funds?

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