Pigeons All the Way Down, or Ejecting the Umpire

How unfortunate that my first post here should be a reaction. Co-contributors have requested that I exhibit decorum, and forgo the string of profanities that characterized (distinguished!) my earlier on-line missives. The limitation has drastically reduced my creative output. Sea legs are forthcoming. In any event, my colleague has spurred me to write by invoking my least favorite judicial fallacy—that of the umpire.

I will toe profanity's onomatopoetic edge by calling the myth of the Supreme Court umpire "transparently asinine."

My colleague is, of course, a wise man, who has said nothing incorrect. He merely seems not to share my terrific outrage every time a would-be Justice suggests to a Senate committee that we would save time and anguish by replacing him with a computer, so irrelevant is his own personal (or, perish the thought, political!) judgment to the hard mechanics of sussing out judicial truth.

Below, Vern posits that most law is simple. I agree with the fundamental premise. To paraphrase a professor of mine, perhaps indeterminacy is overrated. I once worked in a Senate office when a decision came down, the implications of which we rather disliked. But the decision was unanimous, and if you've ever read Chevron, it's not hard to see why. The agency was legally entitled to its interpretation. It was, as they say, within the strike zone. Delightful.

But when we ask Nominee Roberts about the role of judges, we could not possibly care less about this kind of case. We take those decisions for granted. No, we want to know about the dark art of Constitutional interpretation. To expand on the baseball metaphor, Constitutional law is baseball in which the umpire and the pitcher cannot see one another and may not even think they are playing the same game.

The now-standard response for judicial nominees—that the purpose of judges is to call balls and strikes—is, at best, coy and, at worst, intellectually dishonest. The former is a judge sidestepping the fact that we want to know how he or she will decide the hard cases. The latter is a judge somehow believing that there are none.

Consider the Court's recent Eighth Amendment work, especially Roper and, more recently, Baze: You could spend your life staring at the text of the Eighth Amendment and the common law it has sprouted, but you're still left with the words "cruel and unusual punishment." As some have suggested elsewhere on this page, if you can locate the shoulder- and belt-heights of that phrase, you're underthinking.

Do we examine the standards at the time of codification? (This goes to Vern's earlier thought-experiment and the limits of textualism.) Current understandings and standards? Personal standards? Local standards? National? Global? I have my answers, but I do not delude myself that they are rooted in anything other than my own politics.

I don't think the Chief Justice does either, except during confirmation hearings.

Is the vast majority of the law completely determinate? Absolutely. But when we ask your judicial philosophy, we're not curious to know what reasoning you'd apply when signing a unanimous decision, or whether you agree that speed limits present bright-line legal distinctions. We want to know how you'll interpret Constitution when you can see neither pitcher, nor ball, nor batter.

It's time to retire the "umpire" charade for high-level judges. Tell us about your first principles, your politics, your reactions to other hard cases. It's crucial to know what happens when the ball hits a pigeon because, in the world of Constitution, it's pigeons all the way down.

Any Justice who tries tells you that he or she could be replaced with a machine should well be replaced. And not with a machine.

On Baseball and Pigeons

A confession: I agree with Chief Justice Roberts. For the most part, the law is, in fact, about calling balls and strikes.

Absolutely no one agrees with me on this who isn't currently serving on the bench. Nevertheless, I believe it's true. There is almost always a right answer.

The vast majority of the law gets no attention because its results are utterly self-evident. No one speeds through red lights because he thinks the law is indeterminate. Most people just obey these laws without question. The people who disobey them almost always plead out. The few that challenge their verdicts are shut down pretty much instantly; their cases are processed without much ado, and their appeals are easily dismissed.

That's about 99.99% of the law.

After that, it gets a little trickier. There might be a good-faith argument for ambiguity in the law. Nevertheless, usually these ambiguities are fairly easy to resolve. You look at a dictionary, at the rest of the statute, at common sense, at the legislative history (maybe). There's a reason most trial court decisions are upheld, that most appeals court decisions are upheld, that most appeals court decisions are unanimous, and that most SCOTUS cases aren't decided 5-4. It isn't all laziness and congeniality--it's that, usually, there's a pretty obvious right answer.

And, yes, the higher you go up the chain, the more ambiguous the cases get--because otherwise they wouldn't have gotten up the chain. But still, most of the job of a judge is calling balls and strikes. And there are some tough calls, but that doesn't mean there isn't a strike zone.

But in 2001, in a game between the Diamondbacks and the Giants, Cy Young winner Randy Johnson threw a fastball against Calvin Murray. And three fourths of the way to home plate, it struck, and killed, a pigeon.

Of course, in baseball, you can just call for another pitch. But imagine if the umpire didn't have the option. How would he call it? He'd have to calculate the speed and spin of the ball, and look at the batter's stance, and so on. And maybe, if he were a really good umpire, he could take a pretty good guess. And then the game could go on, and no one would be able to really prove him wrong, so that would be ok. It wouldn't be a disaster, and the guess would probably be reasonably fair. But it would be a guess.

And sometimes (very, very rarely), Congress hits a pigeon.

Why do we care what the states think?

In Coker, the court paid special attention to the fact that 49 states didn't have the death penalty for rape. At least some of the argument in Kennedy also focused on this question. Here's my question for the Court: Why should we care? Why are the laws of the states particularly helpful in deciding what is "cruel and unusual"?

Here's two problems with consulting the states:

First, the laws of the states might be shaped by the Court's decisions more than by evolving attitudes. States might create laws not because they think they're "decent," but because they want to shape a law that won't get struck down by the Court. So, for example, states might pass laws that make death unavailable for all rapists, because it thinks Coker applies when the victim is a child, and not just when the victim is an adult.

Second, states might make decisions about their criminal law based on considerations completely divorced from what is "cruel and unusual," or even what is "decent." An execution in California costs $109 million a head. If a state legislature banned the death penalty for financial reasons, it doesn't say a lot about whether it considers the penalty "cruel and unusual."

Decisions to ban a punishment based on either of these considerations might, of course, make the punishment objectively more "unusual." If fewer states are killing people for crime X, it's less usual, whatever the reason. But it isn't necessarily more cruel. And the Eighth Amendment demands both.

When the Court is deciding whether a punishment is "cruel," the criminal law of the states seem at best substantially removed from the question at hand.

It might be more sensible (if somewhat unorthodox) for the Court just to take a poll.

Update: Kennedy Case Transcript

Transcript Available Here

Child Rape & Evolving Standards of Decency

Louisiana wants to execute Patrick Kennedy for the violent rape of his 8-year-old daughter. Though I may be a card-carrying liberal who has long been critical of the death penalty, I cannot deny my lack of moral outrage or concern over a state’s desire to dispose of a 300lb man who brutally raped his own child. I cannot deny harboring the sentiment that, if there ever was such a time for the death penalty, then surely this is it. Certainly, I never could have sat on Kennedy’s jury, because I could never see it as my place to decide who lived and who died. But if someone else wants to kill Patrick Kennedy, I am admittedly equivocal. As terrible as this sounds, murder sometimes happens. It happens accidentally. It happens in self defense. It often happens where the killer never truly intended such a tragic outcome. Rape, however, does not merely happen. Rape is not an accident. Rape is not self defense. Rape is never the tragic, unforeseen result of some fight or argument gone bad. A grown man who rapes his own daughter does so with complete knowledge of what he is doing. Perhaps this is why the execution of Patrick Kennedy doesn’t bother me nearly as much as the execution of certain convicted murders does. My sentiments aside, his case will reach the Court for oral arguments on Wednesday.

Many opponents of the death penalty – and Kennedy’s lawyers - suggest that the “evolving standards of decency” argument clearly militates in their favor: only five states allow the death penalty for the crime of child rape. The limited number of states where child rapists can be executed is not dispositive, but owes, rather, to post-Coker confusion. In Coker, the court ruled that the death penalty was a disproportionately severe – and hence, unconstitutional – punishment for a convicted felon who raped an adult woman. Many states assumed that Coker foreclosed the prospect of passing legislation under which rapists would be death eligible. Coker, however, dealt with the rape of an adult woman. Indeed, Justice White’s decision repeatedly returns to the phrase “rape of an adult woman.” Coker did not pose the question of whether or not the death penalty was an appropriate punishment for rape of an 8-year old child. As such, several states, Louisiana included, have concluded that there is room, even in this post-Coker world, for a statute that allows for execution of child rapists. If I recall correctly, no states had a child-rapist death penalty statute in 1990. Now, five states have such a law. Missouri has filed an amicus brief asking the court not to foreclose a national debate on the issue of capital punishment for child rapists. This does not go so far as to suggest that our evolving standards of decency favor executing child rapists, but rather, that neither side can claim that argument as a trump.

Kennedy’s case cannot be decided based on the Coker precedent. The facts of the situation are easily distinguishable from the aforementioned. The case will, indeed, include a lengthy discussion of our evolving standards of decency ala Roper v. Simmons and Atkins v. Virginia. There will be some wrangling over whether or not America should consider the jurisprudence of other nations in our discussions of the constitutionality of our death penalty. Though doubtful, the court may consider how such laws make it more likely that child rapists will – sensing they have nothing left to lose – murder their victims. Possibly, the court will strike down the law as vague or overbroad, in that it allows the death penalty for anyone who rapes a child under 13....whereas anyone who murders a child is not instantly death eligible without proceeding through a lengthy balancing of aggravating factors and mitigating circumstances. Our murder/death penalty jurisprudence is well developed. Our child rape/death penalty jurisprudence is not. In other words, the law may lack appropriate safeguards to ensure that it is narrowly applied and only in appropriate circumstances. Because the Louisiana law does not include such checks against its application, the Court may – in a 5-4 decision – rule it unconstitutional.

A Gedankenexperiment in Constitutional Interpretation

Let's suppose that, tomorrow, we all decided to amend the constitution. We completely rewrite it—not just adding a clause or two, but explicitly erasing the whole thing, and rewriting it from scratch. We go through the entire Article 5 process, and pass, not just an amendment, but an entirely a new constitution.

And, here's the catch—it's IDENTICAL to the one we had before.

What would this mean for constitutional interpretation?

I confine my remarks to the textualist school, because I think the results are the most interesting. However, note that the differences between the interpretive schools are much less meaningful when so little time has passed since the constitutional event.

Approach 1: The words of the constitution should be interpreted by their current meanings in 2008.

Approach 1 assumes that the people signing off on the constitution are interpreting it in light of the current (2008) meaning of the words. Thus, only those meanings are relevant. Under this approach, Justice Scalia would pick up a new dictionary (I like the AHD-4) and reconstruct the meanings of the various provisions from scratch.

Approach 2: The words of the constitution should be interpreted as before.

Textualism doesn't have to ignore context. If the 2008 Constitution is the same as the previous one, maybe the people of 2008 America intended to create the same constitution they currently have. They didn't want to change anything. Instead, they are ratifying the constitution as it currently exists—that is, with the Supreme Court's precedent to date.

Followers of this approach would have to explain why the American people signed off on the unchanged constitution. But there are a number of possible reasons for this. Maybe they just wanted to get rid of the "dead hand" problem by creating 2008 buy-in. Or maybe they just wanted to share an extraordinary moment of civic-mindedness—a formal affirmation of the centrality of the Constitution, and of our participation in it as American citizens (put this way, I wouldn't mind signing it myself).

The strangest thing about this approach is that it might have the effect of prohibiting the Court from overruling its pre-2008 precedent, because their prior interpretations have been ratified as more than mere interpretations- they are now "part of the Constitution" in a way that prevents a textualist from rethinking them. Suddenly Roe becomes part of the Textualist canon.

Approach 3: Only well-known Supreme Court precedent is good.

The idea here is this: we can only import precedent as part of the "original meaning" of the 2008 constitution when the American people know about it. If they don't know about it, they can't be signing off on it, and we have to look at the 2008 meanings of the words.

With this approach, the most well-known cases are probably still good—the blockbusters of Supreme Court jurisprudence. Polls might help determine which cases count. At the very least, I would suggest Marbury, Roe, and Brown—the cases most people know about. Also probably good are free speech cases prohibiting prayer in schools and other cases on currently hot-button issues. You might also toss in anything that appears routinely on television, like Miranda.

Approach 4: The constitution means what people thought it meant in 2008. Prior precedent is only good insofar as "the people" know about it, and non-existent precedent can be good if people think it exists.

In this approach, we largely follow the approach in 3 regarding superprecedents and the like. However, we modify that approach by relying only on popular ideas of what the constitution currently "says." That is, it doesn't matter what the current law is, it only matters what people think it is. That, and only that, is what the 2008 generation ratified.

Although this approach is, perhaps, more theoretically defensible than Approach 3, it is decidedly more difficult to implement or predict. Want to have an abortion? Well, we can't only look at Roe and that line of cases—instead, we look at the (probably simplified) popular idea of what those cases say. That might well be "you can always have an abortion." Likewise, people might think they have a right to produce obscene pornography, because it is extremely prevalent, is similar to protected material, and is rarely prosecuted anymore. These rights become "constitutional" rights, because they are what people think they are ratifying in 2008.

Similarly, there might be things that people think are part of the Constitution, as currently interpreted, but in fact are not (I am indebted to Conrad Deitrich for this idea). This would include not only construed or penumbra rights (association, privacy), but rights that are purely popular fictions ("I know my rights, you can't do this to me.") These might include, for example, a right to absolute control over a child's education, or a right to commit suicide.

Also included might be certain statutes so old that people think of them as constitutional, like various procedural provisions of the Judiciary Act, or even the current system of trial and appellate courts.

Approach 5: Total reset to 1789 (and times of relevant amendments).

This last approach would be appropriate if one viewed the passage of the 2008 Constitution as a repudiation of Supreme Court precedent. Under this approach, we would eliminate all precedent and rebuild from an originalist viewpoint. The more tenuous interpretations (Griswold, Roe, some of the New Deal cases) would likely be eliminated under this approach, whereas older precedent (and the more recent textualist cases, like Crawford) would remain more constant. Scalia and Black decisions would be enshrined, and Douglas would vanish from the face of the earth.