The Second Most Powerful Person in the U.S. Government?

Who do you think is the most powerful individual in government, after the president? Some might say the Secretary of Defense, the Attorney General or the Chair of the Federal Reserve Board. According to a panel of the D.C. Circuit, it is actually the director of the Consumer Financial Protection Bureau. On that ground, the court in PHH v. Consumer Financial Protection Bureau has just held it unconstitutional that, under the Dodd-Frank Act, the director can only be dismissed for cause.

For those unfamiliar with the agency, it is the federal regulator of consumer protection in financial services—things like mortgage and credit-card lending, consumer reporting, debt collection, checking accounts, etc. The Dodd-Frank Act created the Bureau, inspired in large part by then-Professor Elizabeth Warren’s idea for a finance analog to the Consumer Product Safety Commission. The Bureau has a budget of about $480 million and just over 1,500 employees—a quarter or so as big as, say, the USDA’s Agricultural Research Service. The Bureau is certainly influential in its sphere; in a six-month period it reports securing $244 million in relief for consumers harmed by violations of federal consumer financial law. Yet, whether you think the Bureau is doing a good job or a bad job in the various areas it regulates, it is not immediately evident that its director is the second-most powerful official in the entire government.

The opinion’s rhetoric reveals that this panel lost its mooring to the Constitution. The judges’ concern was that the director has “unilateral power,” by which the court really meant that the director runs the Bureau by himself, not as part of a multi-member commission or board. A commission or board is superior, the court said, because it poses less threat to individual liberty. To be sure, the Supreme Court has observed that the separation of powers protects individuals as well as the rival branches. But individual liberty is not the Constitution’s only value. To assess the validity of the Bureau, the question is not simply how it affects liberty, but how it measures up against the actual framework of the Constitution.

To see the all-consuming importance of individual liberty to this D.C. Circuit panel, it will be useful first to run through the other justifications it offered.

First, the opinion professed to be suspicious because having a single agency head with for-cause protection is novel. Setting aside whether that mode of constitutional analysis is wise, the panel’s historical review was incomplete. The National Bank Act of 1864 established the Comptroller of the Currency and it permitted (and still permits) the President to remove the Comptroller only “upon reasons to be communicated . . . to the Senate.” Textually and in terms of effect, “upon reasons” seems pretty similar to a “for cause” limitation. Assessing this historical example would be important for any careful examination of whether for-cause protection for a single agency head is a novelty. The D.C. Circuit panel dismissed it in a footnote stating that the Comptroller is an at-will official—for which the court cited no precedent and provided no explanation.

The court also framed the Bureau as having an unprecedented “broad authority over the economy.” But the Bureau’s hand does not reach so far. The largest portion of what the Bureau regulates is credit and the total of U.S. credit services—including business credit over which the Bureau has very little authority—constitutes just 2.8% of GDP. By comparison, the Federal Trade Commission oversees antitrust and the law of unfair trade practices economy-wide and the Securities Exchange Commission regulates the markets for all publicly traded securities. The Comptroller of the Currency, noted above, was asked to implement a national monetary system to stabilize an economy suffering from the uncertainty produced by a patchwork of state banking systems.

The court’s definition of “unilateral power” also stated that the director is not “checked by the [p]resident.” Because the president can remove the director only for “inefficiency, neglect of duty, or gross malfeasance in office,” the panel said, the president cannot supervise or direct him and is reduced to mere “cajoling.” That theory bucks what the Supreme Court has said on this very point. The power to remove an official for those reasons is, in fact, a “means of supervising or controlling” the official. The Court has “already concluded” that the limited removal power “provides the executive with substantial ability to ensure that the laws are ‘faithfully executed.’”  In its most recent Appointments Clause, the Court—operating on the assumption that the SEC commissioners have for-cause protection—observed that the president can “hold the [SEC] to account for everything . . . it does.”  Moreover, presidents can and do issue orders to independent agencies. For example, the Bureau submits a semiannual regulatory agenda to the Office of Management and Budget, as Executive Order 12,866 expressly instructs independent agencies to do.

The court also complained that “within his jurisdiction, the [d]irector of the CFPB can be considered even more powerful than the [p]resident,” because “the [d]irector’s view of consumer protection law [...] prevails over all others.” Yet the director’s view of consumer protection law didn’t even prevail in this case; besides invalidating a piece of the Dodd-Frank Act, the court also rejected the director’s interpretations on key statutory issues.

Ultimately, then, the D.C. Circuit’s rationale boils down to the fact that the director runs the Bureau by himself, without being “checked . . . by other colleagues.” This brings me to what may be the key passage in the opinion. “In the absence of [p]residential control,” the panel said, “the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head – a check that helps to prevent arbitrary decision making and abuse of power and thereby to protect individual liberty. But this new agency, the CFPB, lacks that critical check and structural constitutional protection. And the lack of the traditional safeguard threatens the individual liberty protected by the Constitution’s separation of powers.”

After those lines come nine pages of exposition about the merits of multi-member commissions. They are less susceptible to capture by regulated industries, groups make better decisions, etc. There is great wisdom in these pages. But they do not touch on the separation of powers between the president, Congress and the courts. Instead they reason that the Constitution’s drafters favored checks and balances as a general matter. This part of the opinion also does not rely much on Article II. The constitutional requirement, as articulated in cases like Morrison v. Olson and Free Enterprise Foundation v. Public Company Accounting Oversight Board, is that the president be able to take care that the laws are faithfully executed. If the President has insufficient control over the Bureau, it is hard to see how giving the director four colleagues, also removable only for cause, would enhance the president’s influence. If the president cannot supervise the director, checking him with a multi-member board would be an odd substitute—as far as Article II is concerned.

This, then, is why I say the PHH panel lost its mooring in the Constitution. Where the opinion offers justifications based on the Constitution’s structural requirements, they are—despite their length—somewhat hasty and incomplete. Understandably so. The panel’s assertion that a for-cause protection prevents the president from having any control or influence over the director logically implies that eight decades of Supreme Court cases, from Humphrey’s Executor to Free Enterprise Foundation, are mistaken and the Federal Trade Commission is unconstitutional. The opinion did not explore those consequences. Where the panel seemed surest on its feet was its explanation that individuals have less to fear from a multi-member commission than from a solitary agency head. And that is the part of the opinion that abandons the content of the Constitution in favor of one value—individual liberty—among the multiple values that the Constitution furthers.

Meanwhile other federal officials—the Treasury Secretary? the Chair of the Joint Chiefs of Staff? the Vice President, pace Jack Garner?—might ponder whether they should seek a promotion to what the D.C. Circuit considers a vastly more powerful position.

On the #BlackLivesMatter Question

by Gregg Ivers, Professor of Government, American University @Givers1023

For much of white America, the phrase Black Lives Matter elicits thoughts of confusion, anger and resentment. Confusion, anger and resentment over the perception that the phrase, Black Lives Matter, somehow suggests that Black Lives Matter more than All Other Lives – meaning White Lives. All Lives Matter, so goes the rebuttal of some white folks, and Black Lives do not Matter any more or less than the lives of any other American citizen. Another demand for special treatment. Another demand that black folks get their own house in order rather than drawing attention to police brutality directed against unarmed black men, much of which, after we “place things in context,” somehow, after “careful review,” is almost always “justified.”

Among the many problems with this line of reasoning, there is one that stands out:

White America, you’re right . . . Black Lives have always Mattered. For almost four centuries, Black Lives have Mattered a great, great deal to white Americans. We would be a very different country without them. But just not in the way you would like to acknowledge.

Black Lives Mattered so much to the British that colonized North America that they brought their first black slaves to Jamestown, Virginia, in 1619, just a dozen years after they arrived. By 1860, shortly before the outbreak of the Civil War, there were approximately 4 million African slaves in the United States. Black Lives Mattered when white America needed black men to do the brute physical work one would associate with animals and later machines. Black Lives Mattered so much to Southern planters that, after tobacco reached its peak as a cash crop in the Upper South, about a million slaves were sold to the owners of cotton plantations in the Deep South, and forced to migrate to Georgia, Alabama, Mississippi and Louisiana, where the hell that awaited them was even more unimaginable than it had been in the tobacco producing states. The Lives of Black Women Mattered even more than black men. Black women gave birth to even more slaves, whether they wanted to or not, and functioned as sexual slaves to white men who, for reasons that only Sigmund Freud might understand, degraded their existence and yet had no problem raping and pillaging them as they pleased. A young male black slave was valued for the physical labor he could provide and nothing more. A young female black slave, especially a pretty one, was doomed to an existence that no civilized person would want to think about. And so we didn’t.

After the Civil War, Black Lives Mattered so much that the South, after the federal government reached an agreement with the Southern states to abandon Reconstruction and return the region to white rule, reinstituted a system of Neo-Slavery called Jim Crow. So valuable was the labor of black men and women that Southern planters, industrialists, politicians, law enforcement and para-military terrorist organizations like the Ku Klux Klan conspired to create a system of peonage and convict labor to dredge the swamps, pick the cotton, split the sugar cane, take care of the children, cook and clean for white folks, make the turpentine, crack the rocks, build the roads to take them to the glorious buildings that neo-slave labor largely built that rose up by the early 20th century and do anything else respectable white people believed was beneath them – and at the lowest possible cost. This system, in which blacks had no say, did not fall apart until the 1960s.

Black Lives Mattered in other ways, too. By the early 20th century, the art and music that emerged from black communities throughout the Southern United States expressing everything from despair to hope to joy to redemption soon became so popular among white Americans that record companies figured out a way to profit from it without really having to pay the artists that created it. Black music became the first genuinely indigenous form of American music, providing the foundation for the blues, jazz, gospel, the popular song, rhythm and blues and rock and roll and changed the way that music was understood and appreciated throughout the world. Yes, indeed, Black Lives Mattered to record and entertainment executives a great deal.

Black Lives soon began to Matter to lovers of collegiate and professional sports, so much so that, beginning in the late 1940s, the white guardians of professional baseball agreed to let one black man play with 149 other white men. Over the next several decades, black men rose to prominence in baseball, soon dominated football and, of course, almost completely took over the court in basketball. By the early 1960s, Black Lives Mattered so much to the NCAA that it began to permit black athletes to play football and basketball, the two highest revenue producing sports in collegiate athletics, with white athletes. The same Southern schools that took such great pride in preventing academically qualified black men and women from attending their whites-only universities decided that they were not going to tolerate a losing sports program, especially football. It became high time, as the phrase then went, “to get some niggers of our own.” There wasn’t a whole of lot of concern about actually providing these athletes with a proper college education – and there still isn’t. But allowing black athletes into historically whites-only institutions of higher education fattened the wallets of a great many people and continues to do so. By any measure, Blacks Lives Matter a great deal to our collegiate and professional sports complexes.

Although it may not seem like it, Blacks Lives have always Mattered in politics, especially in the South. That is why, until 1965, when the moral force of the civil rights movement forced the passage of the Voting Rights Act, Southern states did not let black people vote. In states like South Carolina, Georgia, Alabama and Mississippi, that would have doomed white supremacy because of the large – and in the case of South Carolina and Mississippi – majority black populations. So the powers-that-were either threatened, arrested, intimidated, raped and sometimes killed black men and women who registered to vote until the federal government made them stop. Of course, Black Lives Mattered in the Old South. Especially when it came to how white people could acquire and exercise political power.

Black Lives still Matter in politics, which is why the modern Republican Party has spent so much time and effort attempting to disenfranchise black voters, especially black men. Photo ID laws to combat a “voter fraud” problem that doesn’t exist. Making registration more and more complicated. Spurious messaging that preys on poor, semi-literate rural black voters by announcing false election times, closing traditional voting centers or anything else that will suppress the black vote. Yes, Black Lives Matter to the Republican Party, which is the reason it doesn’t want blacks to vote. Let's take a moment to remember that blacks have only been second-class citizens for 51 years. Before then, they were subjects. When you cannot vote, you are not a citizen. Period.

Black Lives Matter to the “get tough on crime crowd” in Congress and state legislatures, and our penal system at all levels. The United States has created a mindless system of mass incarceration, taking black men and placing them and their most productive years behind bars. Mass incarceration also means that black men are politically the most impotent voting bloc in the country. Approximately one-third of black men are under the supervision of the criminal justice system, making them largely ineligible to vote. One-third. Combine the fact that voting eligible citizens are far less likely to vote when they feel the system does not serve them, and you magnify the problem to even higher degree. So not only does mass incarceration disproportionately destroy the lives of black men and black families, its sabotages the ability of black men to influence a political system that has demeaned and brutalized them – and for longer – like no other subset of American people. To our criminal justice system, yes, Black Lives Matter. A lot.

There are many more examples of how Black Lives have Mattered over the course of American history. But how Blacks Lives have Mattered to white America is very different than how black Americans believe that Black Lives Matter. And, if you listen very carefully, white America, you will hear that is what this movement is about. Black people want to show white America what it’s like to be black from their side of the camera. Black people want white people to see what happens to young, unarmed black men like Alton Sterling, Philando Castille, Trayvon Martin and Tamir Rice. Black people really want to know – and are willing to listen – why some white people really think George Zimmerman was justified in murdering Trayvon Martin. Black people really want to know if you think Philando Castille would have been killed in front of his family if he was white. Black people want to know why some white people believe that if I teach three black students in a class of 30 rather than just one or two that will somehow threaten your child’s ability to attend college and build a life. Black people really want to know why some white people are so afraid of them that, eight years ago, they invented a right that did not exist for the previous 209 years under the Constitution to own guns designed to do nothing more to kill other people, including school children, and, ironically, pierce the vests that police officers wear to protect themselves from you. Because you do know that white people are far more likely to kill a police officer than a black person? Right?

Black Lives Matter is not something to fear. Black Lives Matter is not an indictment of every single non-black person in the United States. Black Lives Matter is not demanding a revolution through armed force. Black Lives Matter is mad – this is not the Civil Rights Movement of Rosa Parks, Martin Luther King, Jr. and John Lewis – and wants white America to know why. Black Lives Matter is asking you to realize that even white people of goodwill continue to benefit from a system that white people created and have maintained for almost 400 years.

Black Lives Matter wants white people to know that Black Lives Matter just as much as White Lives Matter. And when that happens – when Black and White Lives Matter equally, then we will have reached the point where All Lives Matter. Until then, keep expecting to hear, whether white folks like it or not, why Black Lives Matter.

And don’t be afraid. Just listen.

Public Service: A Steady Persistence of Unsung, Everyday Effort...To Improve the Quality of Life for Others

by Amy Larsen, joint-degree student at NYU Law and the Harvard Kennedy School of Government. She is an outgoing president of NYU Law's ACS Student Chapter and a Next Generation Leader.

Our democracy is, and will always be, a work in progress. Accordingly, public service requires both an urgency of now, and a patience with the longer term trajectory of making change, whether in the context of issues like criminal justice reform, climate change or consumer protection. While grand victories can be won, more often, public service consists, rather mundanely in Consumer Financial Protection Bureau Director Richard Cordray's words, of a "steady persistence of unsung, everyday effort...to improve the quality of life for others." In short, heeding the call to public service is often a halting and unceremonious, yet deeply rewarding, labor of love.

Cordray’s speech reminds us that the messy and imperfect nation-perfecting process requires bringing our best selves to this honorable undertaking. Cordray offers the insights of someone who has gracefully navigated the pressure cooker of American politics, demonstrating conviction, endurance, and humility in his own life and in fighting for broader change. His resilience and continued idealism in spite of the defeats and delays that have intermittently punctuated his career path are inspiring and refreshing. Cordray’s story also counsels in favor of welcoming temporary defeat as a teacher, all while maintaining perspective and optimism. Perhaps counterintuitively, it is precisely those moments in which democracy feels the least satisfying, accountable, and responsive, when the call to leadership and service must be taken up with renewed vigor, commitment, and civic engagement. As such, much like an ACS talk on consumer protection that I heard Cordray deliver a few months ago, this personal reflection seems to double as a call to action: It is as an important reminder that each of us is responsible for shepherding this great country and the causes we care about forward, despite the inevitable setbacks and frustrations. No one is off the hook in our continuous nation-improving project, and so we must press on, attempting as we go to achieve just the right balance of patience and urgency, cautiousness and courage, humility and brazen idealism.

Read CFPB Director Richard Cordray’s speech at The Ohio State University John Glenn Leadership Forum here.

Windsor and Obergefell: Marriage Equality as Equal Dignity

by Steve Sanders, who teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.  He was co-counsel on the Human Rights Campaign’s amicus brief in Obergefell v. Hodges.    

The mid-summer anniversaries of Supreme Court’s marriage equality decisions, United States v. Windsor (2013) and Obergefell v. Hodges (2015), should be celebrated not only for the ends they accomplished – ending the federal non-recognition of same-sex marriages, then bringing about full nationwide marriage equality – but for the way they elevated gays and lesbians to a place of constitutional dignity.  This principle of equal dignity must play a central role as the legal and political movements for LGBT equality continue to evolve.

The Supreme Court laid important groundwork for marriage equality in Romer v. Evans, where it observed that states could not single out gays and lesbians for special legal and political disadvantages that were intended “not to further a proper legislative end but to make them unequal to everyone else.”  It continued the project in Lawrence v. Texas, where it said gays and lesbians “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” under sodomy laws.  In earlier posts on this blog, Sarah Warbelow and Paul Smith have reflected on the significance of these cases.

Marriage equality was, of course, a considerably larger and more controversial question, because it implicated the social meaning of homosexuality and whether gays and lesbians were entitled to have their lives and relationships accorded the same value and respect by government as heterosexuals.  Religious conservatives and their agents in the Republican Party had been working for years to prevent the possibility of such equal dignity. The federal Defense of Marriage Act (DOMA), which was struck down in Windsor, and the state bans on same-sex marriage, struck down in Obergefell, represented some of the worst characteristics of American politics. They were enacted through campaigns of fear, dishonesty and anti-gay animus. One of the marriage bans invalidated by the Supreme Court was a Kentucky state constitutional amendment passed in 2004; a state legislator told the Louisville Courier-Journal at the time that the amendment’s supporters had shown “an unparalleled level of zeal, intolerance and hatred” toward gays. In 2010, the federal judge who struck down California’s Proposition 8 found that the campaign in support of that 2008 ballot measure had presented voters with a “multitude of … advertisements and messages” intended to “convey[] to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.”

As challenges to DOMA and state marriage laws made their way through the federal courts, two things were becoming clear. First, these laws rested on flimsy and disingenuous justifications that were easily dismantled by most judges who confronted them. Second, public opinion was undergoing a stunning sea change, and a majority of Americans were becoming ready to accept marriage equality. Social change was moving hand-in-hand with legal change.

When these cases eventually reached the Supreme Court, the justices spoke with blunt and refreshing candor about the malevolent motives of DOMA, and the harmful effects of state laws that persisted in treating gays and lesbians as second-class citizens.  Justice Kennedy’s majority opinion in Windsor recognized that “interference with the equal dignity of same-sex marriages … was more than an incidental effect of” DOMA.  “It was its essence.”  DOMA’s “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma.”  Two years later in Obergefell, Justice Kennedy explained that where states barred same-sex couples from marriage, the “harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” Pointedly excluding gays from marriage “has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”

What is perhaps most striking about these opinions is the warm empathy and respect they convey toward gays and lesbians. Justice Kennedy wrote movingly about Edie Windsor and Thea Spyer, the couple at the center of Windsor, and about how they had “longed to marry.” In Obergefell, Kennedy summed up the crux of the case in two sentences. The gay and lesbian couples who had filed the challenges, he said, “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” (Earlier this spring, I interviewed Jim Obergefell in front of a law school audience about his journey as a plaintiff in a landmark constitutional case; the video is available here.)

Given how controversial same-sex marriage was for more than 20 years, and notwithstanding a few vulgar sideshows like the Kim Davis spectacle last summer, it is remarkable how easily the reality of legal same-sex marriage has become integrated into the tapestry of American life. According to data from the Williams Institute at UCLA, 132,000 same-sex couples married after Obergefell, bringing the total of married same-sex couples in the U.S. to almost half a million.

Yes, there was been backlash against LGBT progress in the far-right-controlled legislatures of a few states like Mississippi and North Carolina. As legal challenges to these laws move forward, we must hope that lower federal courts will draw lessons from Windsor and Obergefell about the importance of clear-eyed candor toward anti-LGBT laws, and about the constitutional principle of equal dignity that weighs against them.

A Tribute to Judge Richard Cudahy

by J. Paul Oetken, U.S. District Judge for the Southern District of New York

Judge Richard D. Cudahy, who served for 36 years on the United States Court of Appeals for the Seventh Circuit, died last month at the age of 89. He was beloved by his family and friends, his colleagues, and his many law clerks. He was also admired as a brilliant and influential jurist whose opinions shaped the development of the law in myriad ways.

I served as one of Judge Cudahy’s law clerks from 1991 to 1992, and that year was one of the most rewarding and interesting of my career. The judge was not only a kind and generous boss; he was also a great teacher and mentor. We discussed every case in detail, and through that process I gained great insight into how he thought about law and justice.

Judge Cudahy’s approach to the law was humanistic and pragmatic; he was neither formalistic nor result-oriented. He cared deeply about the judicial craft, taking great care to write opinions that were well-reasoned and principled, while always being particularly sensitive to how legal doctrine affects people’s lives. His sense of fairness and even-handedness pervaded his evaluation of every case, regardless of the background of the litigants involved.  In a prisoner’s appeal in a civil rights case, Judge Cudahy wrote (in response to a colleague’s economic analysis):  “Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean, but they are people.”

The judge was modest as a jurist, just as he was modest as a person. He did not pretend that an outcome was obvious when it was not, nor did he construct fancy theories to dictate results of cases.  He was an honest judge who practiced his craft straightforwardly.

He was also extraordinarily hard-working and well-prepared. Every night he would carry a heavy stack of briefs home with him.  When we discussed our cases, he had always read the briefs thoroughly and had his own views (and questions) about each of the issues presented.  He had high standards for his written opinions, going over drafts repeatedly until he was satisfied that an opinion was right, both in its result and in its explanation.

According to his colleague Judge Richard Posner, Judge Cudahy “established himself as one of the nation’s most productive and influential appellate judges, with particular interest and expertise in regulatory and commercial cases, and with a strong liberal voice.” The judge wrote nearly 2,000 published opinions as a judge, including many particularly important opinions in the fields of antitrust, administrative law, civil rights, constitutional law, and criminal procedure.  He was well known for his powerful dissenting and concurring opinions, and he wrote separately more often than most appellate judges.

For all his conscientiousness and passion for the law, the judge was courteous and respectful toward lawyers and litigants.  He was a gentleman in court and out of court. As law clerks, sometimes we would suggest what we thought was a clever metaphor or literary allusion or colorful phrase in an opinion (usually in a footnote). Judge Cudahy would occasionally adopt the suggestion, but only if two conditions were met:  (1) it was not gratuitous, but added to the substantive discussion in some way, and (2) it was not at the expense of a party or a lawyer in the case, who deserved respect.

Judge Cudahy graduated from West Point and Yale Law School, and he had a remarkably wide-ranging set of experiences before joining the bench: Air Force officer; State Department lawyer; CEO of a corporation; law firm partner; law professor; chairman of the Wisconsin public service commission; chairman of the Wisconsin Democratic Party. He authored many articles and speeches in the areas of energy law and administrative law. His interest and expertise in these areas led his law clerks and staff to found the Richard D. Cudahy Writing Competition on Regulatory and Administrative Law, which is run annually by ACS. The judge was very proud of that competition and pleased to be associated with ACS.

Judge Cudahy had 83 law clerks during his tenure on the bench, which began with his appointment by President Carter in 1979.  Of his 83 law clerks, five have become judges; eighteen have become professors; and dozens more have worked in public service and in the private sector throughout the country. As a judge, I find myself frequently thinking about how Judge Cudahy would approach a case or an issue.  I am reminded every day of what an extraordinary role model I had -- and continue to have -- in Judge Cudahy.

Judge Cudahy leaves a tremendous legacy in the hundreds of opinions that contributed to the development of the law, but also in the many law clerks, students, lawyers, and others who had the privilege of knowing him and being affected by his brilliance, his humanity, and his decency.

How Textualism Postures

by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

*This post is part of ACSblog’s 2015 Constitution Day Symposium.

In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

[W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

My contentions are these:

  • Most importantly, at least as textualism is practiced, it has no claim to rising above politics — no claim to ideological purity or neutrality.
  • The fact that Justice Scalia may have supported some “liberal” decisions is largely insignificant in light of his overall record.
  • It’s no answer to cite the record of other judges or to argue that other theories are even more open to manipulation: textualism purports to operate on a loftier “rule-of-law” plane. But it doesn’t.        
  • As stated by Professor Margaret Lemos, textualism and its alternatives have become “political brands, marking judges as liberal or conservative.” (P. 37.) Textualism is, of course, the conservative brand.

My article also addresses textualism’s well-known antipathy toward almost all legislative history as an aid to interpretation. I list a dozen arguments to support its validity and value — including its constitutional and historical foundation, the realities of the legislative process, the bipartisan view of lawmakers, and recent real-world studies of congressional and legislative drafters. (Pp. 38–40.) The canons of construction, as a group, have no superior claim to legitimacy, orderliness, reliability, or acceptance. And judges are no less capable of making informed, sensible decisions about legislative history in a case than they are about sorting through the interplay of the canons

To get an idea of how bewildering that interplay can be, you could start on the first page of the article. Or start on 28 for more on textualism’s (supposed) objectivity and (misguided) rejection of legislative history.