I had lunch on Saturday with my friend Dan Ray, a frequent commenter here and a con law teacher, and we had an interesting discussion about John Roberts and the issue of the level of abstraction at which you view a given claim when it comes before the court. This was an issue during his confirmation hearings, though I'm sure a lot of people missed the significance of it. Sen. Biden questioned Roberts about this issue and the exchange went as follows:
BIDEN: I asked Justice Ginsburg a question about . . . the Michael H. [v. Gerald D.] case. . . . You and I both know how you determine history and tradition determines outcomes. In that case, [the] question [was] whether . . . the natural father [had visitation rights when the child] happened to be born to a woman that was living with her married husband. . . . Scalia said . . . you go back and look at the specific historical precedent. . . . Have bastards ever been protected in the law? And Brennan . . . said, . . . you go back and look at fatherhood. Was fatherhood . . . part of the traditions and part of the embraced notions of what we hold dear? . . .
So, Judge, . . . do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?
ROBERTS: . . . I think you're quite right that . . . quite often the critical question in these cases [is] the degree of generality at which you define . . . the tradition, the history and the practice you are looking at.
The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage? . . .
The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.
ROBERTS: And you look at...
BIDEN: But which precedent do you agree with? There are competing precedents.
ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.
So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely [circular]. . . . And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. . . . [O]bviously, that statute[,] that's part of the history. So you look at it at a broader level of generality.
Let me explain what they meant here by levels of abstraction. In any particular court case, you can state the issue in a number of different ways at different levels of generality or specificity. The textbook example of this is Bowers v Hardwick, the 1986 case which upheld a Georgia law that outlawed sodomy (this case was overturned in 2003's Lawrence decision). The majority opinion, written by Justice Byron White, states the issue at the most specific possible level - is there a fundamental right to engage in homosexual sodomy? They analyzed that question by looking at the history of anti-sodomy statutes and said:
Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.
Chief Justice Warren Burger wrote a concurring opinion to "underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy." But is this the question put before them? One can easily state it more broadly. Indeed, Justice Blackmun did exactly that in his dissent, which began with this blunt (and, I would argue, entirely accurate) statement:
This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante, at 191, than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
Obviously, Justice Blackmun and the dissenters on the court viewed the question more broadly than those in the majority. For them, the case was not about a "right to engage in homosexual sodomy" but a more general right to make personal decisions about conduct between consenting adults in the privacy of their homes free from the threat of government interference. And as both Sen. Biden and Judge Roberts said, deciding which level of abstraction one is going to use when viewing the issue at hand can be the key to determining the outcome of the case. And the Supreme Court proved this in 2003 when they reversed Bowers and overturned all state sodomy laws and did so by directly opposing the narrow level of abstraction used in that case:
The Bowers Courts initial substantive statement - "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . ," 478 U. S., at 190 - discloses the Courts failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
As someone who strongly favors an expansive reading - even more expansive than the Lawrence decision allows - of the Bill of Rights, the fact that Judge Roberts explicitly said that you cannot view a case at its most narrow level of abstraction suggests that he is not a conservative in the Bork/Scalia mold. And there is another issue that came up which further suggests the same thing. In addition to the question of the level of generality at which one views the issue in a case, there is also the question of how you broadly you read and apply the principles stated in the Constitution. This is also a question of abstraction, of course. This question is important because there are many circumstances in which the men who wrote the Constitution, or later amendments, announced broad principles that they did not themselves apply consistently. For instance, the obvious contradiction between announcing that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" and simultaneously owning slaves. So when a court looks at the question of weighing historical precedents, do they apply the broad principles announced or do they only apply the principle as far as the framers themselves would have applied them? Sen. Specter questioned Roberts on this question:
SPECTER: Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on th[e] issue [of a living constitution], saying that . . ."The traditions from which it [liberty] is developed, . . . that tradition is a living thing. And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?
ROBERTS: Well, I think the framers, when they used broad language like liberty, like due process, like unreasonable with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages. As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.
They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages.
SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.
And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.
When talking about the constitutional evolution, he referred to it as expressing values which are, quote, the very essence of a scheme of ordered liberty, close quote, quote, principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
Would you agree with the Cardozo statement of jurisprudence which I just quoted?
ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.
And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.
But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.
And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.
Ignore for now the fact that Specter says this reading is consistent with the notion of a "living constitution". It does not necessarily mean this, of course. The question of applying broad principles rather than the narrow application or compromises of those principles that the men who wrote them may have engaged in need not imply "living constitutionalism". It is also quite consistent with what Gerber, Barnett and Sandefur, among others, have called "liberal originalism" (liberal in the classical sense, not the modern political sense). But this is something that many conservative originalists (or alleged originalists, which is what I contend Justice Scalia is) rejects entirely. This again suggests that Judge Roberts is not a conservative in the Bork/Scalia mold. When combined with his endorsement of substantive due process, another judicial concept that looks to the broad principles of natural rights and political liberty inherent in the nation's founding, I think these two things both give me confidence that Judge Roberts will be, from my perspective, the right kind of conservative. Indeed, it sounds to me like Roberts tends to be more a classical liberal originalist than a Bork type of originalist. And that, in my view, is a very good thing.
Whrn I was listening to the hearings, I was intrigued by that exchange with Senator Biden. My first thought was "I hope Ed or Jon explain this in a way I can understand".
I have good feeling about him
Anyone interested in learning more about the history of substantive due process can have a look at Justice Souter's concurring opinion in Washington v. Glucksberg, 521 U.S. 702, 752 (1997). Justice Souter also does a great job explaining, and giving examples of, generality and abstraction and how they operate. As he notes at the beginning of this discussion:
When identifying and assessing the competing interests of liberty and authority, for example, the breadth of expression that a litigant or a judge selects in stating the competing principles will have much to do with the outcome and may be dispositive. As in any process of rational argumentation, we recognize that when a generally accepted principle is challenged, the broader the attack the less likely it is to succeed. The principle's defenders will, indeed, often try to characterize any challenge as just such a broadside, perhaps by couching the defense as if a broadside attack had occurred. So the Court in Dred Scott treated prohibition of slavery in the Territories as nothing less than a general assault on the concept of property.
Id. at 769-770.
I've always been fond of this opinion because it is a classic example of a jurist writing an opinion that is intended to educate. Justice Souter didn't need to say all he did to make his main points, but he wrote a lengthy, very pedagogical opinion, to make sure that readers really understood what he was saying and why. I tell my students to read this very carefully, as it is the closest we are ever likely to come to having a sitting Supreme Court Justice in our classroom to deliver a talk about substantive due process and the art of rhetorical discourse.
Bravo, Ed! When my fellow liberals get in huff over Roberts, I'm pointing them here to help allay their fears.
I think these two things both give me confidence that Judge Roberts will be, from my perspective, the right kind of conservative. Indeed, it sounds to me like Roberts tends to be more a classical liberal originalist than a Bork type of originalist
One doesn't know, does one? I have not opposed Roberts's nomination as CJ, however, because I do believe that he may turn out to be an "Earl Warren." Warren was considered to have been one of the most conservative AttyGens and governors of California, but he was CJ of one of the most liberal SupCts in recent memory.
If Roberts can protect the federal judiciary from the political nincompoops in the Congress who want to rein in their jurisdiction, that will be an accomplishment.
My advice to those who don't believe that he will be able to is, learn a foreign language and buy Euros. I've done both.
I was always taken by a sentence i read in the letters of Thurgood Marshall. He wrote(and i paraphrase here because i can't put my finger on the page in the book) that when crafting his opinions he worked very hard at measuring the "necessary ambiguity" in his text. In reading Ed's comments about the question of abstractions i am reminded that there is considerable range, or better spectrum, of meaning that needs to be infered from necessarily ambiguous opinions concerning abstractions of event possibilities. My concern with Roberts is that he may have been shrewdly restricting his comments and remarks in order to hide his "real" place space along that spectrum. I, like raj, sure hope not, but i too am prepared for the worst.