Supreme Court — VOICES for REASON

“On Jan. 21, poor Justice Holmes must have turned in his grave.”

So writes Mimi Marziani in the National Law Journal, lamenting the Supreme Court’s decision in Citizens United v. FEC, issued on Jan. 21, 2010. That’s the controversial case holding that corporations have a right to speak out on political issues without being censored.

What’s the connection with Justice Oliver Wendell Holmes, Jr., who died back in 1935? Well, Holmes spent much of his long career arguing against the idea that the U.S. Constitution is a bulwark of liberty, a barrier to governmental infringements on individual rights. So Marziani is right that Holmes, if he were alive today, would have dissented in the Citizens United case—just as he dissented more than a century ago in the case forever associated with his name, Lochner v. New York. (In that 1905 case, the Court struck down a maximum-hours law for bakers.)

In fact, Marziani says, there’s a direct parallel between the two famous cases. Citizens United, she asserts, is “Lochner’s 21st century equivalent.” Why? Because both cases were driven by a conviction that the Constitution should be interpreted where possible to protect people against the awesome power of government to violate their rights. Along with Holmes, Marziani believes that the Constitution is agnostic on the relationship between individuals and the state. Read the rest of this entry »

The Supreme Court is wrestling with a case involving a state-funded program of beach sand replenishment that’s threatening the property rights of private beach owners. But the conflict that gave rise to this case should never have arisen at all.

The lawsuit was brought by owners of beachfront property in Florida whose deeds include the beaches themselves. (That’s not always the case—in some states, private ownership of beaches is forbidden by state governments that declare them all public property.) Like many states, Florida has a program of beach replenishment to compensate for erosion from hurricanes and natural wave action. These programs pay for powerful dredging machines to pump new sand onto the beach at public expense.

The plaintiffs in the case (called Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection) object to the program because the new strips of sand become public property—raising the specter of sunbathers and surfers parading between the plaintiffs’ private houses and the ocean’s waves. The landowners say that’s a “taking” of private property by eminent domain, requiring a money payment to compensate for the diminished value of a beach subject to public access.

Notice how the beach replenishment program creates an insoluble conflict between property owners and taxpayers. The property rights of beach house owners—who presumably paid a premium for their own private stretch of beach—are violated when a public beach can be grafted by government fiat onto the shorelines of their property. But the property rights of all Florida’s citizens are violated when their money is taken to pay for beach replenishment, which is no part of a government’s proper functions.  Read the rest of this entry »

Today, the Supreme Court will be deciding whether to accept an appeal involving the following scenario:

Forty-five people carrying placards and handing out leaflets show up inside a shopping mall.  Their message? Boycott the mall’s stores. When mall management asks them to leave, they refuse—and so the police throw them out. The boycotters sue the mall for interfering with their speech rights. They win.

What makes such a legal outcome possible? At bottom, it’s a certain conception of rights as entitlements to the property of others. On this view, the right of free speech is empty unless someone provides the speaker with a newspaper, a blog, a microphone—or, in this case, a mall full of shoppers. But that’s a perversion of rights. In reality, the right of free speech pertains only to freedom of action, on and with one’s own property (or the property of others who agree to allow its use). Because a shopping mall is private property, every visitor is there by permission of the owner. That owner has a moral right (which should be recognized legally, but isn’t) to forbid visitors from staging a boycott campaign on that property.

The case I’m talking about is Macerich Management Co. v. United Brotherhood of Carpenters. If the Supreme Court accepts the case, what’s the chance it will apply a proper view of rights? Zero.

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There was never any doubt that the Lochner litmus test would certify Sonia Sotomayor as a Supreme Court nominee acceptable to the Senate. As I noted in my Objective Standard article, “Justice Holmes and the Empty Constitution,” the 1905 case of Lochner v. New York (which struck down a maximum hours law for bakers) furnishes a tool for discerning a judge’s fundamental view of the Constitution:

• Is the Constitution a document of liberty, designed (perhaps with some errors) to preserve individual rights against government power? If a judge thinks so, then he or she is likely to regard the Lochner Court’s decision as a proper result (albeit perhaps reached by a debatable analysis).

• Or is the Constitution an empty vessel, devoid of any principles protecting the individual against the state? If that is a judge’s view then he or she will join the almost universal chorus of legal professionals who believe Lochner was wrongly decided.

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“Sotomayor Emphasizes Objectivity”—that was the headline in a recent Washington Post. It was a line worthy of the satirical newspaper known as The Onion, which deals routinely in turning the tables for humor’s sake, inverting truth and fiction. And the newly objective Sonia Sotomayor is a pure work of fiction.

During her hearings, Sotomayor said all the right things. She told the committee that her judicial philosophy is “fidelity to the law.” She told Senator Jon Kyl that the “job of the judge is to apply the law” and “it’s not the heart that compels conclusions in cases.” She told  him: “We apply law to facts. We don’t apply feelings to facts….” And she passed off her famous “wise Latina” remark as a “rhetorical flourish” meant to inspire other minorities, not to express her philosophy of judging.

Based on this performance, Sotomayor is virtually certain to be confirmed for the Supreme Court. On Tuesday, the Judiciary Committee voted 13-6 to submit her nomination to the full Senate. But how are the senators supposed to square her recent professions of judicial objectivity with her public paeans to the opposite view?

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On the eve of Supreme Court confirmation hearings for Judge Sonia Sotomayor, Politico.com was reporting that “Republicans have yet to uncover a smoking gun in Sotomayor’s past, and her confirmation is seen by many as a fait accompli.”

This says a lot about the Senate’s inability (on both sides of the aisle) to recognize a smoking gun when they see it.

In previous posts, I’ve discussed the oft-quoted public speech in which she rhapsodized about “how wonderful and magical it is to have a Latina soul.” In that speech, which she later authorized to be reprinted as a law review article, Sotomayor publicly declared that judicial impartiality is just a pipe dream, that judges can’t be objective because “[p]ersonal experiences affect the facts that judges choose to see,” and as a result “‘there is no objective stance but only a series of perspectives.’”

This speech is not just a smoking gun—it’s an atomic blast meant to obliterate the rule of law. Any senator of either party who cannot see the implications of Sotomayor’s views is intellectually unequipped to perform the kind of searching review the Founders intended when they required advice and consent of the Senate for Supreme Court nominations.

Those following the debate over Judge Sonia Sotomayor’s nomination to the Supreme Court may be interested in my article, recently published online free of charge, in The Objective Standard.

In that essay, “Justice Holmes and the Empty Constitution,” I focus on the constitutional theories of Justice Oliver Wendell Holmes, Jr., as reflected in a single dissenting opinion written in 1905 in the case of Lochner v. New York. Although the details of the case are long forgotten (it involved a law setting maximum hours for bakeshop workers), the various Justices’ opinions on constitutional interpretation have had lasting impact.

Holmes’s central point was that the Constitution does not embody any fundamental principle defining the relationship between man and the state—a point that would come as news to the Founding Fathers, who expressly declared their intention to form a government that would protect individual rights against the state. In Holmes’s view, it’s not a document for preserving liberty or implementing any political view at all. Rather, it’s an empty vessel into which society pours its ever-shifting, subjective opinions of what conduct should be permitted and what should be banned.

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If confirmed by the Senate, Judge Sonia Sotomayor will have to take the oath of office that every Supreme Court justice is required to recite. Pursuant to Title 28, Chapter I, Part 453 of the United States Code, Judge Sotomayor will be expected to “solemnly swear (or affirm)” that she will “faithfully and impartially discharge and perform all the duties incumbent upon me” as a Supreme Court justice under the Constitution and laws of the United States. (I added the boldface to that quotation.)

But Judge Sotomayor cannot honestly recite this oath. Why? Because she is on record as believing that judicial impartiality is an impossible dream. “. . . [O]ur experiences as women and people of color affect our decisions,” she said in a 2001 speech. “The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”

So, will Sotomayor cross her fingers when taking the oath of office, in an attempt to nullify her rank hypocrisy? All superstitious nonsense aside, a judge who declares herself helpless to resist the influences of gender, upbringing, and ethnic heritage when judging cases does not deserve to be elevated to the Supreme Court.

On the G. Gordon Liddy Show recently, I discussed the nomination of Judge Sonia Sotomayor to the Supreme Court. I made the case that she is unqualified for the job—or, more precisely, that she has disqualified herself for a job that requires objectivity and impartiality. Sotomayor has not only declared herself helpless to resist the emotional promptings of her “Latina soul” when adjudicating cases, but she believes that the subterranean influences from her Hispanic female experience will more often than not lead her to a “better conclusion than a white male who hasn’t lived that life.”

With Sotomayor, it’s all about her upbringing, her life story. Her “Latina identity” is a bubbling brew of internal influences—race, gender, religion, and who knows what else—whose swirling emotional fumes permeate the courtroom of her mind. Do you expect her to tell you in words how those influences will affect her judging next week, or next year? Don’t fool yourself. How can she tell you what she herself doesn’t know?

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A new article by Tom Bowden has just been published at The Objective Standard and is freely available online. “Justice Holmes and the Empty Constitution” starts this way:

On April 17, 1905, Justice Oliver Wendell Holmes Jr. issued his dissenting opinion in the case of Lochner v. New York. At a mere 617 words, the dissent was dwarfed by the 9,000 words it took for the Supreme Court’s eight other Justices to present their own opinions. But none of this bothered Holmes, who prided himself on writing concisely. “The vulgar hardly will believe an opinion important unless it is padded like a militia brigadier general,” he once wrote to a friend. “You know my view on that theme. The little snakes are the poisonous ones.”

Of the many “little snakes” that would slither from Justice Holmes’s pen during his thirty years on the Supreme Court, the biting, eloquent dissent in Lochner carried perhaps the most powerful venom.

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