The Gippers Constitution

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December, 1999

The Gippers Constitution

Republican judges are rewriting the law of the land.

By Stephen Pomper


October 13, 1999---Day 6,841 of the Reagan Revolution. The Supreme Court hears an argument in Kimel v. Florida Board of Regents. Counsel asks the Court to recognize that state employees have the right to sue their employers for violating the Age Discrimination Employment Act. If not, then state employers will be above the law---immune from damages no matter how egregiously they discriminate on the basis of age. Not only that, but states will have a legal basis to argue that this immunity should extend to private suits under other civil rights laws---like the Americans with Disabilities Act and portions of the Civil Rights Act of 1964. But from reports of the argument, you'd never know what's at stake: Chief Justice William Rehnquist yawns openly. Justices Sandra Day O'Connor and Anthony Kennedy stare into space and down at the bench. And the liberal justices offer up a pittance of supportive questions and fall silent as if to acknowledge that it's a lost cause---why bother?

How did we get here? Twenty years ago the Reagan administration had a conservative social agenda and no way to achieve it. A Democratic House of Representatives stood squarely in the way of the White House on issues like abortion, school prayer, and busing. In Pursuit of Justices, a history of the modern Supreme Court appointments process, David Alistair Yalof describes how the administration gave up on Congress and shifted its strategy to redefining the political composition of the federal courts. This was accomplished through careful screening of judicial nominees; Yalof reprints portions of a 1985 Justice Department memo enumerating the ideal attributes of a Supreme Court Justice, including:

€"disposition towards 'less government rather

than more'"

€"appreciation for the role of the free market in

our society"

€"refusal to create new constitutional rights for

the individual" and

€"respect for traditional values."

It was a brilliant strategy, with long-lived results. At the end of October, even after seven years of a Democratic administration, and the confirmation of 325 Clinton appointees to the federal bench, Republican-appointed federal judges outnumbered Democrat appointees 614 to 571. That imbalance has not been helped by the fact that it now takes roughly 201 days---compared to 38 days during the Carter administration---to shepherd a candidate through the thoroughly partisan Senate confirmation process. (At the end of October there was a backlog of 42 Clinton nominees awaiting confirmation to the federal judiciary.) A once-tenuous 5-4 conservative majority on the Supreme Court has crystallized into a consistent, reliable voting block. And conservative district court judges (the trial court judges who occupy the lowest rung in the federal court system) and circuit court judges (the appellate judges who occupy the middle level between federal trial courts and the Supreme Court) have developed increasingly aggressive tactics to achieve their ends. The result has been a growing body of conservative law which, because it is championed by lifetime-tenured judges and inscribed in precedents that are difficult (sometimes impossible) for legislatures to overturn, looks to extend the Reagan legacy well into the next century.

The most profound changes made by the Republican bench are embedded in a series of highly technical decisions generally grouped under the heading "federalism"---a term that describes legal theories allowing courts to take powers away from the federal government and give them to states. Taken alone, none of the so-called federalist decisions would have earth-shattering impact. Taken together, they have given Republican judges doctrinal cover for redesigning government, picking off civil rights protections, and weakening other federal legislation. And given the political origins of these judges, it comes as no surprise that they are simultaneously making inroads on a conservative social agenda in areas like abortion rights, campaign finance reform, and environmental regulation.

What's more, by advancing the Reagan revolution in discrete, technical steps, conservative judges have given liberals a difficult target to shoot at. "The opinions always give the impression of being one step short of a truly radical decision," says University of Michigan law professor Ellen Katz, while acknowledging that defeat by 1,000 small blows is nevertheless defeat.

Devolution Now, Devolution Forever

Five years ago, Gareth Cook observed in these pages that the devolution of federal powers to local entities is "the core of the modern Republican agenda." ("Devolution Chic," April 1995). Of course even Republican congressmen are capable of loving federal legislation that serves a conservative agenda. (For example, Republican congressmen have recently supported federal legislation on issues like late term abortions and tort reform.) But when it comes to forms of regulation that Republicans inherently mistrust---industry regulation, environmental legislation, and civil rights protections---devolution is still a useful concept for pushing responsibility away from the federal government, down to the states, and perhaps into oblivion.

The Reagan administration of course wanted a judiciary that would support devolution from the bench, which is no doubt the reason for the item in the 1985 Justice Department memo suggesting that the ideal Supreme Court justice would favor "less government rather than more." That objective has been realized, as the Supreme Court (now home to seven Republican appointees---five of whom vote fairly reliably on party lines) has labored for the better part of the past decade to take Congress' powers away.

Some background: Congress gets its general powers to make law from two places---first, the so-called "Commerce Clause" of the Constitution, which allows it to pass laws regulating interstate commerce; second, the 14th Amendment, which allows it to pass civil rights legislation protecting individuals from state abuse. (The Constitution also gives Congress enumerated powers to make law in certain specified areas, for example, bankruptcy). These have been generous sources of Congressional authority. For 60 years, the Supreme Court did not overturn a single law on the grounds that Congress had exceeded its Commerce Clause authority. And the Court also gave Congress a wide berth to define the civil liberties that required its protection under the 14th Amendment.

As the Reagan Revolution has gathered momentum in the courts over the last decade, however, the rules have changed. The Supreme Court has issued a series of rulings that trim Congressional authority in order to give more power to the states. For example, in two cases (New York v. United States and Printz v. United States), the Court ruled that Congress cannot force states to implement federal legislation---meaning, for example, that Congress cannot require local police to administer hand-gun checks under the Brady Act. In United States v. Lopez, the Court broke with six decades of precedent and said that Congress went outside its Commerce Clause authority when it created nationwide gun-free school zones; this was a matter that states were entitled to regulate. And in City of Boerne v. Flores, the Court overturned a federal law that had given religious organizations the right not to observe state laws when they conflicted with religious principles; in so doing, the Court criticized Congress for being too generous with individual rights and not considerate enough of states' rights.

The Supreme Court took the federalist movement to a whole new level, however, with its decision in Alden v. Maine---which was decided on the last day of the 1998-1999 Supreme Court term. The Alden ruling, combined with a similar decision from two years earlier, says that private citizens cannot sue state governments under Commerce Clause legislation. To be sure, if a state breaks the law, one can still get a court to order a specific person in state government---for example, the governor or a commissioner---to make it stop. But under Alden, an injured party cannot sue the state to get compensated for the harm he has suffered, or to give the state a reason for thinking twice before it breaks the law again.

Alden was particularly jarring because it assigned states a right that is not expressed anywhere in the text of the Constitution. In reaching its decision, the federalist majority relied on the "structure" and the "history" of the Constitution---interpretive strategies that were popular with the activist brethren on the Warren Court, but that had long been disdained by the conservative bench. Remember the 1985 Justice Department memo that frowned on "the creation of new constitutional rights for individuals"? In Alden, the Republican justices demonstrated that they were in fact willing to create new constitutional rights ---when they served the devolutionary purpose of taking authority away from Congress and making states more powerful. Above the Law

Republicans in Congress do their part to make the federal government smaller by pushing regulatory responsibility down to the states. Republicans on the bench help the cause by making it easier for states to ignore federal regulation, which in turn is supposed to make it easier for the states to do their jobs. But do we really want the states to be unregulated?

After all, states are big business. At the end of 1998, state governments employed over 4.76 million workers, a number that reflects an increase of slightly less than 10 percent in the preceding ten years. (Students of devolution take note: as of year-end 1998, the federal government employed 2.7 million workers, reflecting a decline of slightly more than 10 percent over the same period.) State-run enterprises compete actively and often very successfully with the private sector. And states are sometimes apt to take liberties.

Paul Durham is a case in point. Durham has been an employee of the Iowa Department of Transportation for 34 years, and is responsible for keeping 400 miles of road safe and passable. Starting in 1985, Durham was entitled under the Federal Labor Standards Act (FLSA) to be paid for overtime work at an overtime wage (time-and-a-half). Although he claims that from 1985 though 1995, he generally worked between 700 and 800 hours of overtime a year, Durham says that he never got paid for more than 75 of those hours in any year. Eventually he sued the state of Iowa as part of a class action. In 1996, the verdict came in: his class had won, and according to his attorney's back-of-the-envelope calculations, Durham was entitled to almost $200,000. But before the court could calculate the precise amount of damages, the Supreme Court made states immune from FLSA lawsuits in federal court. Now, under Alden, they're immune in state court too. As a result, Durham is out quite a bit of money and the Iowa DOT rides free.

Mary Ann Thomson's case is also instructive. According to the uncontested facts she presented in court, Thomson worked as an administrative assistant at the Ohio State University Hospital. When her father was diagnosed with Alzheimer's disease, she asked for unpaid leave and was denied. She then learned that she was entitled to a leave under the federal Family Medical Leave Act, so she asked and was rebuffed again, then sued. It was a strategy that might have paid off for a private sector employee, but unfortunately Thomson worked for a state university. A federal trial court judge, James L. Graham (a Reagan appointee), ruled in 1998 that the state was immune from private suits under the FMLA, and Thomson was out of luck.

But the strangest cases to illustrate this point are a pair that were decided by the Supreme Court at the same time as Alden---Florida v. College Savings Bank and College Savings Bank v. Florida. In these cases, a private savings bank sued the state of Florida for patent and trademark violations concerning a college investment plan. Without reaching the question of whether there were actually violations, the Supreme Court ruled that the state of Florida was immune from suit under the applicable patent and trademark laws. It was a remarkable ruling given that states---in particular, big state universities---do hundreds of millions of dollars of business each year in technology development. Now, when state research labs borrow the patented materials they need to do their work (a common practice), they can apparently violate the patents on those materials without concern of punishment. "If I'm the state, you can say you'll sue me," says Professor Ronald Mann at the University of Michigan law school. "But I'll laugh and say---go ahead---because in fact, you can't sue me."

Federalists argue that states should have sovereign immunity against plaintiffs like Durham, Thomson, and College Savings Bank, if only to keep their treasuries from being plundered by lawsuits. But that raises the question: Why should the Supreme Court help states to balance their budgets by denying their employees and business partners access to the courts---compromising their rights and effectively rendering them second-class citizens under the law?

Heedless, Self-promoting Things

One way to gauge the hostility of the Republican judiciary to Congress is by the number of federal statutes that it has overturned in recent years. Since 1995, the Supreme Court has overturned 20 acts of Congress on constitutional grounds. That's more than the total number that were overturned in the previous 20 years combined.

In more balanced times, the Republican bar might have been shamefaced about this sort of judicial activism. The Supreme Court has generally made an effort to defer to Congress, on the principle that Supreme Court justices are not elected and therefore should take a back seat to Congress in deciding how the country is governed.

Those days of judicial modesty are gone. In a New York Times op-ed published on the heels of Alden, former Reagan administration Solicitor General Charles Fried suggested that the public should be grateful to the Court for overturning Congressional legislation in areas like rape protection and gun control because federal laws in this area are redundant with existing state laws and therefore "heedless" and "self-promoting." This is not quite convincing.

Consider, for example, the Violence Against Women Act, which was overturned by a 7 - 4 majority of judges on the Fourth Circuit court of appeals last spring. (The Fourth Circuit is based in Virginia and comprises seven Republican-appointed judges and four Democratic appointees). The Fourth Circuit's opinion, Brzonkala v. Virginia Polytechnic Institute, found VAWA to be outside Congress' Commerce Clause authority. If VAWA was just a heedless, self-promoting act, then perhaps we shouldn't care. But it wasn't. VAWA was enacted because rape crimes were not being adequately prosecuted at the local level. Rape survivors had only a 5 percent chance of seeing their assailants convicted and a 1 percent chance of collecting damages from them on civil charges. Forty-one state attorneys general signed a letter supporting VAWA's passage, and 17 out of 18 federal trial courts that reviewed the statute before the Fourth Circuit found it to be constitutional.

What end, then, did the Fourth Circuit serve when it delivered a 168-page opinion (an astronomical length by circuit court standards) against plaintiff Christy Brzonkala---a young woman who claimed to have been gang raped during her first week in college, only to see the school fail to meaningfully discipline her assailants and the state fail to press charges? Certainly it set up the Supreme Court (which is reviewing Brzonkala this term) to hack back Congress' Commerce Clause powers yet further---advancing the cause of "less government rather than more." But wouldn't it have been preferable if "doing justice for Christy Brzonkala" were the higher priority?

Attack On All Fronts

Looking past the Republican bench's predilection for "less government rather than more," Republican-appointed judges---most notably the Fourth Circuit---have also done a great deal for advancing the conservative agenda on a number of other specific issues in the last two years. In particular:

Abortion. The Fourth Circuit did its part for the pro-life movement, in 1998, by upholding the constitutionality of a law requiring unmarried teenagers to get parental consent before having an abortion and, in 1999, by prohibiting the type of late term abortions referred to as "partial birth abortions." In both cases, the appellate court reversed pro-choice decisions by trial court judges. In the "partial birth" case word leaked out that state authorities had taken steps to ensure the outcome they wanted by maneuvering the case to Judge Michael Luttig, the most outspokenly conservative judge on the appellate court. Luttig returned the favor with an opinion that upheld the anti-abortion law and avoided even mentioning Roe v. Wade as a precedent.

Campaign Finance Reform. Campaign finance reform suffered a set-back in Nixon v. Shrink, where the Eighth Circuit's Judge Pasco Bowman (a Reagan appointee) ruled that a Missouri law limiting campaign contributions to $1,075 was a violation of the free speech rights of candidates and potential contributors. The ruling undermined the Supreme Court's 1976 decision in Buckley v. Valeo, which provides that contribution limits of $1,000 or more are constitutional. (Reformers will recall that Buckley v. Valeo said that caps on campaign contributions are constitutional, but that caps on campaign spending are not.) The Supreme Court is presently reviewing Bowman's decision.

Environmental Regulation. The conservative Fourth Circuit undermined the federal Clean Water Act in two notable cases. In United States v. Wilson, it refused to punish a Maryland developer for discharging fill into a Maryland wetlands in apparent violation of the Clean Water Act. The court reasoned that because the Clean Water Act was enacted under Congress' Commerce Clause powers, it only applies to "interstate" wetlands. In Friends of the Earth v. Laidlaw, the Fourth Circuit declared that a company's mercury dumping violations were "moot" because they were remedied while the case was being litigated, and prevented Friends of Earth---who had prompted the clean up by bringing the litigation---from collecting attorneys' fees. The decision all but destroyed the mechanism for citizens' suits under the Clean Water Act and is now being reviewed by the Supreme Court.

Law and Order. The Fourth Circuit also achieved certain notoriety when it ruled in U.S. v. Dickerson that the Supreme Court's venerable opinion in Miranda v. Arizona had merely established guidelines for law enforcement officials---meaning that the familiar Miranda warnings given by police (the litany beginning with "you have the right to remain silent") may not be constitutionally required. In May of this year, Neil Lewis reported an even more stunning item in The New York Times: In 26 consecutive cases where trial courts had granted "habeas corpus" petitions delaying prisoner death sentences, the appellate court reversed every single one---a result that is difficult to justify if one attributes any force to habeas law or assumes that trial court judges are at least minimally competent.

It's How You Play The Game

No discussion of the triumph of the Republican bench would be complete without a nod to extra-legal considerations---the ways in which judges will sometimes depart from convention in order to achieve politically desirable ends. We have already spoken of the new willingness of the Republican bench to create constitutional rights from sources outside the Constitution (but only for states), to aggressively overrule Congress, and to disregard Supreme Court precedent. But this just scratches the surface. Other tactics include:

€ Reaching Out to be Kind. The Supreme Court gives the appearance of reaching out to review cases from the Fourth Circuit---which has emerged as the most consistently aggressive of the conservative lower courts. By affirming these cases, the Court can render inviolate the Fourth's envelope-pushing conclusions. Reaching out, of course, is hard to prove. But it is worth noting that the number of Fourth Circuit cases that the Court has agreed to take has accelerated just as the Fourth has broken from the pack. At the beginning of the present Supreme Court term, there were already six Fourth Circuit cases on the high Court docket---that's as many cases as the Court agreed to hear from the Fourth in its three previous terms combined.

€ Reaching Out to be Cruel. If the Supreme Court seems to be reaching out to affirm Fourth Circuit cases, then it seems to be reaching out to overturn decisions issued by the Ninth Circuit---a California-based court dominated by Carter and Clinton appointees and viewed as the last remaining bastion of judicial liberalism. A Los Angeles Times article running at the end of the 1997-1998 Supreme Court term---during which the Court overturned 13 of 17 Ninth Circuit decisions---proclaimed triumphantly that "the reviews for the California-based federal appeals court were not all bad at the Supreme Court this year." In the previous term, it had overturned 28 out of 29. Even more unfortunate are rumors in the environmental bar that judges on the Circuit have begun ruling against environmental causes because they feel under attack about their record.

€ Majority Rule. As a general matter, circuit court decisions are reached by three-judge panels---which may be revisited in "en banc" ( group) review by the entire circuit if requested by any of the non-panel judges. The Fourth Circuit, however, has acquired the habit of subjecting all panel decisions that come out the wrong way to en banc review. Lewis' piece in The New York Times quotes the University of Pittsburgh law professor Arthur Hellman as saying "There is a conservative majority on the full court, and if they see a panel decision they don't like, they just take it en banc and reverse itŠ No other circuit enforces majority rule the way the Fourth Circuit does."

A Radical Development

It is tempting to hope that the upcoming election will give liberals the break they need to derail the Reagan Revolution in the courts. Four seats on the Supreme Court could open up in the next five years (those currently occupied by Chief Justice Rehnquist and Justices O'Connor, John Paul Stevens and Ruth Bader Ginsburg). Whoever fills those seats will likely have the chance to define the direction of constitutional law well into the next century. In order to be assured of getting the right people on the bench, however, Democrats will need to command the entire appointments process---meaning both the White House and the Senate Judiciary Committee. And that won't be easy. One thing liberal lawyers can do to help is to arouse public awareness of the dangers lurking in recent legal trends.

This will require liberals to voice their concerns even if (to recall the words of Professor Katz from the University of Michigan) the courts remain "one step short of the radical decision." After all, that decision may never come. Meanwhile, in a series of dry, technically devastating opinions, Republican judges have engineered what former Solicitor General Walter Dellinger has referred to as "one of the three or four major shifts in constitutionalism we've seen in the last two centuries."

Dellinger's remark places the Reagan Revolution in the same category as the constitutional changes that attended the Civil War, New Deal and civil rights movement. That's pretty exalted company for a trend that is backward looking, hostile to individual rights, and out of touch with what Americans want and value. There may not be a radical decision behind it, but it's a radical development, and it's something the public should hear about repeatedly and emphatically---before, on the way to, and after the polls next November.

Research assistance provided by Lucinda Vette.

Stephen Pomperis an editor of The Washington Monthly. You can email him byclicking hereor read his other articles byclicking here

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