I recently attended a panel discussion at my alma mater, the University of Texas in Austin. The topic was “Free Speech on College Campuses: Where to Draw the Line?” The event, held during Free Speech Week, was co-sponsored by UT’s Division of Diversity and Community Engagement (DDCE), the Institute for Urban Policy Research and Analysis (IUPRA), and The Opportunity Forum, all funded in whole or in part by the state of Texas. IUPRA’s mission “is to use applied policy research to advocate for the equality of access, opportunity, and choice for African Americans and other populations of color.”
Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,” and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.
Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce.
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”
During the Gilded Age, so-called “captains of industry” such as Andrew Carnegie, John D. Rockefeller, and J.P. Morgan led an industrial revolution that transformed the nation with technological innovation, creating for Americans unparalleled improvements in the average standard of living and amassing great personal fortunes in the process. The spectacular success—and enormous power—of these newly minted tycoons earned them the sobriquet “Robber Baron,” even as their ruthless business tactics, such as Rockefeller’s cartelization of the oil industry through trusts, fostered new laws to regulate anti-competitive business practices, notably the 1890 Sherman Act. These measures are called “antitrust” laws, an often-forgotten tribute to the dynastic Standard Oil Trust, which at its peak controlled the refining of 90 to 95 percent of all oil produced in the United States.
Looking back at the Americans with Disabilities Act, passed by Congress in 1990, one has to be struck by the extent to which the ADA’s lofty sentiments have been overwhelmed by its adverse results. If it’s true that the road to hell is paved with good intentions, then the ADA is a veritable Autobahn of wishful thinking gone awry. Yet no one seems inclined to reroute the ill-fated traffic; some states are even widening the highway with additional lanes.
The unexpected retirement of Judge Janice Rogers Brown, 68, from the U.S. Court of Appeals for the D.C. Circuit will trigger a well-deserved celebration of her extraordinary judicial career, both as a federal appellate judge (since 2005) and previously as a member of the California Supreme Court (1996 to 2005). It will be difficult for President Donald Trump to appoint a replacement that comes anywhere close to filling the shoes of the of the forceful, fearless, and independent Brown, whose nomination by President George W. Bush to the nation’s second most influential court in 2003 was delayed for two years by Democratic opposition.Despite a filibuster in the U.S. Senate, Brown was ultimately confirmed in 2005 by a 56 to 43 vote, when the so-called Gang of 14 reached an agreement to avoid Republicans’ invocation of the “nuclear option.” Hopefully, Brown will continue to serve on the D.C. Circuit as a judge with “senior status.”
The Texas Supreme Court has a unique structure, reflecting the state’s stubbornly independent-minded culture. Most state supreme courts have jurisdiction over civil and criminal cases and have seven (or fewer) members, who are appointed by the governor and face the voters — if at all — only for periodic “retention” elections. The Texas Supreme Court, in contrast, hears only civil appeals (criminal cases are decided by the co-equal Texas Court of Criminal Appeals) and has nine members, all of whom are subject to statewide partisan elections. The last feature is quite unusual; only seven states select judges in this manner. Despite this distinctive design, the Texas Supreme Court succeeds at steering a steady jurisprudential course in a cautious, low-key style.
Brazen judges openly legislating from the bench are confirming the widely-held public perception that activist courts are out of control. As a lawyer practicing for three decades in the plaintiff-friendly stronghold of California, within the jurisdiction of the notorious Ninth Circuit, I witnessed many instances of judges—state and federal—slanting their decisions against disfavored parties, such as insurance companies, corporate employers, and deep-pocketed defendants.
The legal academy is a strange place. It differs from other intellectual disciplines in that legal scholarship is published mainly in student-edited law reviews, not peer-reviewed journals. Most faculty members at elite law schools have never practiced law, or have done so only briefly and usually without professional distinction. The curricula at many of the nation’s law schools are larded with trendy courses devoted to identity politics and social issues du jour. Elite law schools eschew the teaching of “nuts and bolts” fundamentals, deriding such practical instruction as resembling a “trade school.”
The latest tract by Erwin Chemerinsky, liberal law professor and dean of the University of California at Irvine School of Law, is depressingly familiar. Like his Enhancing Government: Federalism for the 21st Century (2008), The Conservative Assault on the Constitution (2011), and The Case Against the Supreme Court (2014), his new book is a diatribe masquerading as legal scholarship. The usual villains—conservative Supreme Court justices, malevolent government officials, rapacious corporations, racist police officers—are pitted against the wrongly accused, helpless consumers, and oppressed victims of discrimination.
In a prior post, I discussed the Pidgeon v. Turner case, now pending before the Texas Supreme Court, involving a taxpayer challenge to same-sex spousal benefits. Oral argument was held on March 1. The taxpayers challenging the city of Houston’s policy of granting same-sex spousal benefits to city employees were represented at oral argument by Jonathan Mitchell, a former Scalia clerk, former Texas solicitor general, and now a visiting professor at Stanford law school. The city of Houston was represented by Douglas Alexander, a leading appellate practitioner in an Austin law firm whose partners include former Texas Chief Justice Wallace Jefferson. The oral argument was superb, and both counsel fielded numerous questions from the fully-engaged justices.
The disquieting spectacle of three unelected judges (all appointed by President Barack Obama) enjoining the signature initiative of the newly inaugurated President Donald Trump, without even citing the statute—8 U.S.C. section 1182(f)—that expressly authorizes the action they just stopped, has focused public attention as never before on the threat posed by liberal judicial activism to our system of self-government.