Tuesday, March 09, 2010

Texts and Guns and Scalia and Posner

By Mike Dorf

My latest FindLaw column unpacks a joke made by Justice Scalia during the oral argument last week in McDonald v. Chicago. Justice Scalia suggested that the lawyer arguing the case for incorporating the Second Amendment was making a tactical error by placing so much reliance on the 14th Amendment's Privileges or Immunities Clause, rather than its Due Process Clause. He joked that the lawyer appeared to be bucking for a position as a law professor.

In my column, I explain why Justice Scalia has the issue not just wrong but backwards: It's textualists like him that have led lawyers (and some academics) to argue that the work of incorporation of the Bill of Rights should be shifted from the Due Process Clause to the Privileges or Immunities Clause. Academics tend to be much more legal realist about such matters. Speaking for myself, it's hard to imagine that constitutional law would look very different if the Supreme Court had incorporated the Bill of Rights via P or I rather than DP. Perhaps there would have been some differences regarding the rights of non-citizens (because P or I protects "citizens" while DP protects "persons"), but even there, one can well imagine the Court having glossed the text to reach the results that seemed sensible. After all, everyone on the Court now accepts that the equal protection clause applicable to the federal government has the same content as the equal protection clause applicable to the states--despite the fact that there is no equal protection clause applicable to the federal government. Yet you don't hear any textualists calling for the overruling of Bolling v. Sharpe--partly because that case, which "reverse incorporates" the equal protection clause, is what allows Justice Scalia et al to invalidate federal affirmative action programs.

My column recounts a bit of the recent history of judicial complaints about the legal academy. Mostly those complaints amount to the charge that legal academic literature is impractical, overly theoretical, esoteric, and incompetently inter-disciplinary. I offer a partial defense which I won't rehearse here. Instead, I want to surface an issue raised by one judicial critic whose critique points in a different direction.

Most of the judges who complain about the impracticality of legal scholarship contend that it does not offer sufficient guidance to the sorts of doctrinal questions they face. Theirs is a narrative of decline: In the good old days, prominent law professors wrote treatises collecting and distilling judicial opinions into decision rules; that sort of thing was helpful in deciding new cases; but since the academy stopped rewarding treatise writers, legal academics have ventured off in other, less helpful directions.

Judge Posner says almost the exact opposite. Consider his critique of University of Chicago Law Professor David Strauss's treatment of the DeShaney case--in which the Supreme Court found no constitutional violation when a state social services agency failed to intervene to protect a small child against repeated (and repeatedly reported) beatings by his father. Strauss criticized the decision but Posner thought Strauss paid insufficient attention to the damned-if-you-do-damned-if-you-don't quality of the dilemma faced by social workers trying to decide whether to remove custody. More than that, Posner faulted Strauss for armchair philosophizing rather than empirical investigation. Posner wrote (on pages 209-10 of Overcoming Law):

the University of Chicago Law School, where Strauss teaches, is one block east of the university's School of Social Service Administration, the nation's premier school of social work. A two-minute walk would have brought Strauss into the presence of experts with whom to explore the practical consequences of a decision the other way in DeShaney. One block east of the law school is the university's School of Public Policy Studies, where Strauss could have consulted experts in public administration and finance to determine the consequences of using the federal courts to enforce, in the name of civil rights, standards of right conduct for public employees engaged in rescue services, broadly defined.

. . . In any sensible division of responsibilities among branches of the legal profession, the task of conducting detailed empirical inquires into the presuppositions of legal doctrines would be assigned to the law schools. Too many constitutional scholars conceive their role as that of shadow judges, writing, in the guise of articles, alternative judicial opinions in Supreme Court cases.

Now I happen to think this is somewhat overstated. Conducting the sorts of empirical inquiries Posner has in mind certainly has an important place in the legal academy, but so does doctrinal work--not conceived simply in the shadow-court way but by leveraging the key advantages that legal academics have: We have the luxury of time and the ability to view issues in wider focus than do judges, who must decide the case before them, no more and no less. This broader conception of doctrinal work is what Judge Edwards was describing in the passage in my column in which he says what he has in mind by practical scholarship, and it's highly defensible.

Nonetheless, if Posner overstates his case, he still has a case: Judges in deciding hard cases should look at the consequences of their decisions, and legal (and other) academics can provide immeasurable help in that respect. So, what will be the consequences of a Supreme Court ruling saying that there is a federal constitutional right to own and possess a handgun applicable against the states? Various amici in the McDonald case have submitted briefs purporting to cite evidence relevant to that question. Writing in what will almost certainly be a dissent, Justice Breyer and/or one of Justices Stevens, Ginsburg, and Sotomayor will likely cite some of this evidence as a reason why the Court is wrong to apply the Second Amendment to the states. But I doubt that the majority will find this evidence relevant. If I'm right, it will be because when Justice Scalia calls for practical help from lawyers and academics, what he means is doctrinal help. Where gun rights are concerned, his notion of what's practical does not include how things work out in practice. As he wrote dismissively and question-beggingly in concluding his opinion in DC v. Heller:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Maybe not, but it is the role of the Court to say what the Second Amendment means--and given that there is legitimate contestation over meaning as a textual and historical matter, consequences ought to count for something.

16 comments:

Sam Rickless said...

I agree with a great deal of what you say, including your comments about how Scalia and his fellow textualists brought the PI argument on themselves. But I'm going to disagree with you regarding the claim that judges should always look at the practical consequences of their decisions in hard cases under the Constitution. Sometimes decisions need to be made on principle, even if the consequences point in the other direction. For example, suppose that your best reading of the Equal Protection Clause is that the kind of equality it requires is equality of opportunity, and you then apply the principle of equal opportunity to the VMI case; should you as a judge consider the consequences of your decision (such as its impact on other single sex schools, its impact on the "adversative" method of instruction at VMI, the broader cultural message of the decision, and so on)? I think not. You should decide the case on principle, period. It is for others to find a way to solve the practical problems that may stem from the decision.

Michael C. Dorf said...

Sam's comment echoes a point that Ronald Dworkin has long made--namely, that courts are fora of principle rather than policy. Dworkin's claim is not, in my view, a completely accurate account of American constitutional law. For example, the principle of free speech is not a "trump" that defeats all other non-rights-based claims, as Dworkin says, but merely a strong presumption, defeasible by a law that is narrowly tailored to advance a compelling interest. Fred Schauer nicely captures this point by saying that American constitutional rights function as "shields" rather than trumps.

So one response to Sam's point would be to say that one needs to look to consequences at least preliminarily to figure out whether those consequences are sufficiently telling to override the principle at stake.

Now, what about Posner? Despite occasional loose talk, Posner is a rule-consequentialist judge, not an act-consequentialist judge, and so he will allow that sometimes judges must follow a principle even though an all-things-considered act-consequentialist judgment would point in a different direction. However, what Posner had in mind in criticizing Strauss (at least to the extent that I agree with Posner) is that consequences are usually quite relevant in circumstances in which it is not clear whether some principle has the status of law in the first place, or, what amounts to the same thing, it is not clear how far some established legal principle reaches.

Charles said...

Timothy Sandefur argues that notwithstanding its oft-exploited awkwardness (as noted in your column), SDP is conceptually and historically justified. Presumably others have argued likewise, but I've read only his paper (and am not competent to assess them in any event). Do such arguments have any standing in the legal academic community?

Thanks - Charles

Michael C. Dorf said...

In response to Charles, yes, there is pretty broad agreement that in the middle of the nineteenth century, sdp was an accepted doctrine. More recently, some people have emphasized the phrase "of law" to make the linguistic case for sdp stronger.

Charles said...

"some people have emphasized the phrase 'of law'".

That's the hook Sandefur uses.

BTW:

"Posner ... still has a case: Judges in deciding hard cases should look at the consequences of their decisions, and legal (and other) academics can provide immeasurable help in that respect."

I vaguely recall that in one of his books, J Posner complained that judges were actually precluded from doing what he argues Prof Strauss should have done. I don't recall the rationale but assume it had something to do with ethical limits on judges' discussing issues related to cases before them. If there are such limits that would inhibit drop-in chats with colleagues, what mechanisms might be available for judges to access the desired wisdom?

Sam Rickless said...

Your comments are fair, Mike. I overstated the case. (Is the fact that I was once a student of Dworkin's that transparent?) Admittedly, consequences, if compelling enough, can defeat any rights-based presumption. But I believe that this is no more than any reasonable rights-based moral theoretic account of constitutional adjudication (including Dworkin's, for that matter) would allow anyway. Few rights-based moral theorists are absolutists.

My worry is that you may be outlining a principle that I don't accept. Perhaps you aren't. The principle is that in hard cases in particular, it is acceptable practice for a judge to decide the case based largely on consequences. This would be a mistake, I think. In the case of fundamental rights (which trigger strict scrutiny), it may be that the case is hard because rights pull one way while consequences pull another way. (Think of Brown, for example.) And yet it is clear to me that the right way to go here is to go with principle over consequences.

Perhaps it was the quote from Posner that set me off. Posner is a consequentialist judge, and I wouldn't want anyone to follow his example. In his book on Public Intellectuals, for example, Posner claims that the right way to look at the rights, including presumably the legal rights, of women in the third world is through a consequentialist lens. Will educated women take jobs away from men? Will educating girls have an impact on the birth rate? Will educated girls be as productive as educated men? What of the costs of overcoming religious and cultural resistance to the education of women? Honestly, who cares? The impact on society would have to be near-catastrophic for educational discrimination against girls and women to be justified. Posner does not accept this way of looking at rights. He thinks that we should look at the consequences, and if the balance of consequences points against educating women, then this is the right result, both from a policy and judicial perspective. But this is wrong.

Charles said...

"it may be that the case is hard because rights pull one way while consequences pull another way. (Think of Brown, for example.) And yet it is clear to me that the right way to go here is to go with principle over consequences."

Sam -

It's unclear (at least to me) in what sense you are using "principle". And in this quote, the confusion is compounded by the implicit equating of "rights" and "principle".

At one point you say "Sometimes decisions need to be made on principle" and give "equality of opportunity" as an example. Now one view might be that (relative to the occurrence of a judicial decision) a legal "principle" provides a priori guidance on the way to a "right" that is declared (or affirmed) a posteriori. And with that understanding, while I enthusiastically support the concept of equal opportunity, I don't see it as being a legal principle that enters into a judicial decision about a right to enter VMI (I haven't read the case, but I would guess that it was decided on EP grounds). So, while I think it's insane for a society to waste the latent talent of any disadvantaged group, I don't see a case for equal opportunity per se as a constitutionally bestowed "right". Similarly, re Brown one might have supported a general principle of equality but still concluded (as apparently was the case for some Justices before they were swayed by consideration of consequences) that there is no right to unsegregated public education.

"[Posner] thinks ... if the balance of consequences points against educating women, then this is the right result, both from a policy and judicial perspective. But this is wrong."

Both you and Prof Dorf assert that "Posner is a consequentialist judge", and for all I know the evidence supports that assertion. But he is (or was circa 2003) adamant to the contrary (see Ld&P, p. 59, item 4), and I would have to be convinced otherwise. So, although I haven't read "Public Intellectuals" (see note below), I'm a bit skeptical about your summary of his position. But even accepting it, I don't understand your conclusion. If a judicial action is clearly dictated by the law, presumably even a pragmatic/consequentialist judge will go with the law (which I understand to be the overarching "principle" of adjudication). And if the consequences are "compelling enough", you've agreed they should be heavily weighted. But if it's a close call, something has to tilt the scale, so why not consequences as a major factor?

Which leads me to ask: "But this is wrong" according to what standard? If we've eliminated ignoring the law and sufficiently dire consequences, the only thing I see left is difference of opinion. And in that case, IMO "wrong", "immoral", et al, carry no weight (per "Ramsey's ladder").

Note: As an aside, I'm curious how he squares what I understand to be the book's theme with his posts on the B-P blog in which he expounds on a wide range of issues, many inevitably outside his realm of expertise.

Sam Rickless said...

Charles,

The claim that the equal protection clause protects a fundamental right to equality of opportunity is not standard, but it coheres well with the Brown decision. If you want my own (brief) reconstruction of the argument of Brown, read my notes on Brown at http://philosophyfaculty.ucsd.edu/faculty/rickless/Rickless/Courses_files/Lecture8-2007-Brown.pdf. I think that it is better to read equal protection law (including the decision in the VMI case) in light of the equal opportunity principle than it is to read the law in light of the suspect classification criteria that have taken over recent debates. Most of the criteria of suspectness are morally irrelevant, and should have no place in legal adjudication (I am thinking of such criteria as immutability, political power, history of invidious discrimination).

On Posner. You say that if the law says that X, then even a pragmatic judge will go with X, even if X does not produce the best overall consequences. This is a misreading of pragmatism as a theory of adjudication. Pragmatism says that the law should be read to mean what, if applied, would produce the best overall consequences. Holmes on torts is a classic example. There might be a few laws that escape this sort of pragmatic rendering (for example, the law that specifies the minimum age requirement for the Presidency). But laws that are written in fairly "open textured" language, according to the pragmatist, should be given a reading that is consistent with consequentialism.

Posner is wrong (in the case I discuss) because decisions regarding equal access to education should not be made on consequentialist grounds. It really doesn't take rocket science to see that the considerations Posner adduces to determine whether girls should have access to public education are, except in the most extreme sorts of cases, completely irrelevant to the issue. As I said, if educating girls would cause society to implode, then that's one thing. But the mere fact that the consequences of educating girls would be worse overall than the consequences of not educating them is really neither here nor there. This is because they have a fundamental right to equal opportunity, a right that it would be wrong to infringe except under the most extreme circumstances.

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Alan said...

It only makes sense to take consequences into account when a constitutional provision is unclear, or in borderline cases where a court employs a balancing test.

Of course, the Second Amendment presumably will be subject to some sort of balancing test as it begins to be applied on a regular basis. But the blanket handgun bans at issue in Heller and McDonald wouldn't be able to withstand strict scrutiny.

(I'm focusing on the nature of the substantive right here, not on whether it should be incorporated against the states. So this comment is more a response to the last three sentences of Prof. Dorf's post.)

In any event, I see nothing wrong with eschewing consideration of consequences in the case of clear constitutional violations.

Consider the application of the exclusionary rule in a case where a blatant violation of a defendant's Fourth Amendment rights leads to the suppression of evidence and subsequently to acquittal, but where the suppressed evidence clearly shows that the defendant is guilty of a violent crime.

Do we look at the consequences of applying the Constitution then, and reason that, because applying it would result in the release of a violent and guilty man, its application should be suspended? No. Nor should we.

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