In an article for The American Prospect, Attorney General Eric Holder Jr., asserting his Department's independence from political elements of the administration, tells Dayo Olopade, "I'm not the secretary of justice. I'm the attorney general of the United States." The article is one of three recent stories exploring ramifications of some decisions made during Holder's tenure as Attorney General.

The New York Times reported yesterday that Holder, a former member of the ACS Board of Directors, "has switched from resisting what he had considered encroachment by White House officials to seeking their guidance." According to The Times a catalyst was the Justice Department's decision to prosecute Khalid Sheikh Mohammed, who has said he plotted the Sept. 11 terrorist strikes, and four co-conspirators, in federal court instead of a military tribunal. Indeed, Holder told The Times that political attacks on that decision were "starting to constrain my ability to function as attorney general."

In an article for The New Yorker, Jane Mayer explores tensions between some in the White House and the Justice Department, especially over the decision on Mohammed. Explaining some of his reasoning, Holder said that the administration should not rely on the controversial interrogation techniques used by the Bush administration to bring justice to the alleged Sept. 11 conspirators. "We are not going to use the products of interrogation techniques that this President has banned," Holder said.

Olopade's article for The Prospect focuses more on Holder's work to build moral at the sprawling Justice Department after years of scandal prompted, in part, by a drastic reduction in attorneys in the Civil Rights Division and politicization of hiring throughout the Department.

Olopade maintains:

Indeed, his tenure promises to resolve many long-running debates on civil-rights provisions, environmental regulations, and criminal justice and drug policy, as well as the delicate balance between American security and its basic freedoms and moral principles. Taking some cues from the broad themes of the Obama campaign - transparency, people power, accountability, and equity for all Americans - Holder has directed the department to set up interagency task forces on interrogation and detention practices, shepherded new protections against hate crimes through Congress, spoken out on ‘the crisis in indigent defense,' decriminalized medical marijuana use, demanded new protocols for hiring U.S. attorneys, and declared that the agency's Civil Rights Division is once again ‘open for business.'

Caroline Fredrickson, executive director of ACS, told The Prospect, "They're reviewing everything de novo. There is clearly an effort to be much more inclusive in terms of hearing from different parts of the advocacy community and trying to understand the implications of policy for civil rights, for human rights, and for international obligations."

In light of recent debate over constitutional interpretation, and in particular Justice Antonin Scalia's defense of "originalism," a quick look at some of Keeping Faith with the Constitution is likely helpful.

Earlier this year ACS published Keeping Faith by Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder, which articulates a vision of the Constitution and an approach to interpretation that is faithful to the words of the document and at the same time has enabled it to retain its relevance for each new generation. The authors explain "constitutional fidelity," a principle that "serves not only to preserve the Constitution's meaning over time, but also to maintain its authority and legitimacy. The words and principles of the Constitution endure as our fundamental law because they have been made relevant to the conditions and challenges of each generation through an ongoing process of interpretation."

In chapter 3 of the book, "Equality," the authors conclude that originalism is incompatible, for instance, with the landmark Supreme Court ruling, Brown v. Board of Education, which invalidated segregated public schools. The authors wrote:

Why, then, has the correctness of Brown been the subject of so much handwringing in some legal circles? The short answer is that Brown is a difficult case under interpretive theories that disavow the relevance of contemporary social understandings to the application of the Constitution's general principles. To justify Brown, originalism must posit that the federal and state legislators who ratified the Fourteenth Amendment understood it to abolish segregated schools. Given the widespread practice of school segregation in the states and the paucity of evidence that the enacting Congress believed the Amendment would radically transform public schooling, it is no wonder that the unanimous Court in Brown found the original intent "[a]t best . . . inconclusive." Indeed, for over half a century, a scholarly consensus across the ideological spectrum has recognized that Brown cannot be explained on originalist grounds. Even the most ambitious and labored effort to reconcile Brown with originalism comes up short for reasons lucidly elaborated by one of the nation's leading civil rights historians.

For more Keeping Faith, see here. 

Reviewing Packing the Court, by James MacGregor Burns, Professor Jack Balkin writes in The American Prospect:

Something is rotten in the United States today, and it's the activist Supreme Court. The rantings of Rush Limbaugh? No, this accusation comes from a proud liberal, James MacGregor Burns, a Pulitzer Prize-winning political scientist who is the author of classic works on leadership and American government. In this colorful polemic, Burns marches energetically through the history of the Supreme Court, arguing that the Court has used its authority on the side of the privileged, the propertied, and the powerful and against the interests of ordinary citizens. 

Comparing the state of the justice system to America's crumbling transportation infrastructure, Gara LaMarche, of The Atlantic Philanthropies, writes in the latest The Nation, "What is required is an understanding of the pieces and what needs to happen at various levels, with the right leadership, to put them back together."

LaMarche highlights several key areas requiring improvement within "the infrastructure of justice," writing: 

We certainly have not neglected building prisons in recent years, as draconian sentencing laws have put a record number of men and many women behind bars. This has been the greatest boom-time in recorded history for the prison-industrial complex. But far more than bricks and mortar, the infrastructure of laws and policies and human capital tell the story of the health of justice in America. 

LaMarche concludes:

We need the president and many others to knit traditional justice concerns more closely together with a broader progressive agenda. We need working families to see what they have at stake in who sits on the Supreme Court and how they rule, and we need to reject the cynical use of wedge issues once and for all. We need to connect investments in education and health and jobs to the justice system; to make clear the consequences of underinvestment in young people, particularly in communities of color; and to show that every dollar spent on prison bars is one not spent on schoolbooks. We need to connect the parts of the justice system so that the manipulation of fear that has for too long driven our criminal justice policies, and therefore our politics, and the manipulation of fear since the terrorist attacks of 2001 are understood as cut from the same cloth.

...

At the center of our vision is achieving the state of justice in which race and gender and ethnicity are not the determinants of who ends up in prison or on an ICE airplane to the Mexican border, or winds up dead at the hands of an abusive husband or an out-of-control cop or soldier. We will have achieved a small but important part of that goal when the Supreme Court looks like the America of those whose rights it is the ultimate guardian. Yes, the Court should have some connection to and empathy with those who come before it challenging a powerful interest, whether it's the state or a rich corporation.

America’s Prophets

How Judicial Activism Makes America Great

By David R. Dow, University Distinguished Professor, University of Houston Law Center

[Available Here]

Jesus gave us the most well known illustration of judicial activism in western history when he delivered the Sermon on the Mount. Surveying all of the Hebrew Bible, Jesus explained that the central animating legal norm is what we know today as the Golden Rule: Treat others the way you want to be treated yourself.

As I argue in America's Prophets, the phrase judicial activism doesn't really mean anything at all, because people use the phrase simply to identify decisions they do not like. For example, most people who refer to Roe v Wade as activist have probably never even read Justice Blackmun's opinion. They are perforce not criticizing the Court's reasoning; they are simply objecting to the result.

But if judicial activism means anything, it means a method of analysis that seeks to identify broad and general principles as a basis for deciding individual cases. Principles and values have an infinite number of levels. At very high and very low levels of generality - in other words, when we either articulate the principle very generally, or very specifically - there is usually widespread agreement about what the principle means or requires. Consider, for example, the concept of privacy. Most Americans would agree, as a general matter, that the Constitution guarantees a right of privacy. At a high level of generality, this principle means that we are entitled to live our lives in a manner of our choosing. We would also likely find widespread agreement if we were to examine highly specific iterations of this principle. For example, if we were to ask whether the government can compel Americans to watch C-SPAN on Tuesday nights rather than American Idol, nearly all people would say no; our right of privacy gives us the right to watch whatever shows we want, or none at all.

But between these two extremes - when we ask a question that is neither very general nor very specific - we find disagreement. For example: Does the fact that you live in whatever state you want also mean that you can drive without a seatbelt? Does the fact you can eat cold pizza for breakfast instead of bran flakes also mean you can use heroin in the privacy of your own home?

Answering these questions - and these are the questions judges must answer - is not a matter simply of logic. It is a matter of drawing lines; and how one chooses to draw lines is affected by one's beliefs, knowledge and experience. Today, virtually all judges agree that the right of privacy means that a black person and a white person can choose to marry one another if they want to, but less than half a century ago, there was vitriolic disagreement about that very issue. The principle - privacy - has not changed between then and now; what has changed is our understanding of how the principle operates and our understanding of the facts that are relevant to the issue.

How one understands legal principles and values very much depends on one's own values, education and - yes - experience. When Senator Mitch McConnell, the Senate's leading Republican, suggested that Justice Sotomayor is unfit to sit on the high court, he explained himself by saying that "she has said her experiences will affect the facts she chooses to see as a judge." But all judges, like all human beings, are products of their experience. If we are to take Senator McConnell at his word, he voted against the first Hispanic nominated to serve on the nation's highest court because then-Judge Sotomayor acknowledged that she is human.

Even Justice Scalia knows that one's experience cannot be untangled from one's ideas. Which facts one sees, and how one sees them, are shaped by one's own history - that is, by one's own experience. Consider as an example the case of Bradwell v. State of Illinois, in which the Supreme Court infamously upheld the constitutionality of a state law that prohibited women from being lawyers. Justice Joseph Bradley wrote the Court's opinion, writing that "nature herself [makes] the female sex . . . unfit[] for many of the occupations of civil life." If God did not want women practicing law, then surely Illinois could uphold that divine injunction.

More than a century later the Court confronted a Virginia law that prohibited women from attending the prestigious Virginia Military Institute (VMI). Justice Ruth Bader Ginsburg, who herself had been denied a clerkship on the Supreme Court because of her gender, wrote the opinion for the Court striking down the Virginia law. Justice Scalia wrote a dissent, in which he had this to say:

Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. [Emphasis added.]

Justice Scalia understood that Justice Bradley saw the world the way he did because he considered it undebatable that nature had designed women for domesticity. And Justice Scalia further understood that we are all like Justice Bradley: inhabitants of a world where our experiences influence which issues we consider debatable and which brook no debate.

Justice Ginsburg had a different experience from Justice Scalia. She viewed the exclusion of women from VMI as part of the same history that Justice Bradley invoked when he concluded that a state could bar a woman from the bar. Justice Scalia focused on a different constellation of facts. He believed the Constitution permitted Virginia to adhere "to such old-fashioned concepts as manly ‘honor'." Whereas Justice Ginsburg (and the Court's majority) saw the perpetuation of bias in the maintenance of this single-sex institution, Justice Scalia saw chivalry and a gentleman's code.

Judges have to choose which facts matter. That choice is affected by their experiences, but it is also affected by the way they understand legal principles - which is itself a function of experience. In the VMI case, Justice Ginsburg was faithful to a value that lies at the core of American democracy. She was faithful to the idea of equality. I argue in America's Prophets that so-called judicial activists are judges who are most faithful to the central values of liberty and equality. I show that, like the prophets of the Hebrew Bible, judicial activists are the judges who are most willing to protect these central values even when it is unpopular to do so.

Video is available of yesterday's national simulcast on constitutional interpretation. The event, which took place at UC Berkeley School of Law and was hosted by ACS, included discussion of three new books on constitutional interpretation -- Keeping Faith with the Constitution, It is a Constitution We Are Expounding, and The Constitution in 2020. Keeping Faith co-author Stanford law professor Pamela S. Karlan challenged the legitimacy of formulaic constitutional interpretations such as "originalism" and "strict construction" and articulated an approach to understanding and applying the principles of the Constitution that remains faithful to the document's words while enabling its relevance for each new generation of Americans.

Dr. John C. Eastman, dean of the Chapman University School Law, and Judge William A. Fletcher, U.S. Court of Appeals for the Ninth Circuit, also participated in the discussion. The panel was moderated by Stanford law school professor Richard T. Ford, also a contributor to The Constitution in 2020, and included introductory comments from Caroline Fredrickson, ACS executive director. Watch or listen to the discussion here.

ACSblog will publish a graphic exploration of our country's debate over healthcare reform. Each day next week, writer Jonathan Hennessey and graphic artist Aaron McConnell, authors of The United States Constitution: A Graphic Adaptation, will debut a new part of their latest work written exclusively for ACSblog.

The series by Hennessey and McConnell, the latest installment in ACSblog's ongoing Book Talk feature, will offer a unique perspective on the issue dominating headlines for the past month. The team looks not just at the stage set by hot rhetoric on both sides, but will answer the question, "Where among the Constitution's seven articles and 27 amendments could supporters of health care reform look to justify it?"

ACSblog is honored to dedicate the week of Constitution Day, September 17, 2009, to the five-part "We the Patients: Health Care Reform and the Constitution" -- an original, timely, substantive and entertaining work.

Keeping Faith with the Constitution

By Goodwin Liu, Associate Dean and Professor of Law, Berkeley Law School & Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School. Keeping Faith with the Constitution was published by ACS and is available free at the link below.

[Available Here]

Keeping Faith with the Constitution wades into a long-running debate about how we should interpret our Constitution. It's a debate we will hear a lot about in the coming months, especially in the context of judicial nominations. For a long time, conservatives have framed this debate by portraying themselves as strict adherents to the text and original understanding of the Constitution, while claiming that liberals and progressives ignore the text and decide cases based on their own values or policy preferences.

That characterization is, of course, a caricature. In our book, we approach the topic through a different set of questions: How have judges, elected officials and citizens actually gone about the process of constitutional interpretation? What explains the enduring character of our Constitution in light of the profound economic, social and political changes that our nation has gone through? And how does this 220-year-old document retain its legitimacy, authority and relevance over time?

Simply put, our thesis is that the Constitution has endured because judges, elected officials and citizens throughout our history have engaged in an ongoing process of interpretation. That interpretation reflects fidelity to our written Constitution. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires us to ask not how its text and principles would have been applied in 1789 or 1868, but rather how they should be applied today in light of the conditions and concerns of our society.

This view of constitutional interpretation is commonsensical and flows from several features of the Constitution itself. First, many parts of the Constitution are phrased in broad terms that encompass more than the specific applications the Framers had in mind. For example, the Fourteenth Amendment was written to secure the equal citizenship of African Americans, yet its words go beyond that specific objective and extend "equal protection of the laws" to all "person[s]."

Second, our Constitution is, as Franklin Roosevelt said, "a layman's document, not a lawyer's contract." It's a document that belongs to ordinary Americans and their representatives as much as it belongs to lawyers and judges. So it shouldn't be surprising or illegitimate that judicial interpretation of the Constitution has been informed not only by text, original understandings and precedent, but also by social understandings and popular movements throughout our history.

Third, the Constitution is a practical document. It is not simply a statement of aspirations or abstract principle. It is a document intended to govern our society and to operationalize our commitments to liberty, equality and democracy. So when we interpret the Constitution, our goal should be, as Justice Breyer has put it, to fulfill its promises "not as a matter of fine words on paper" but "in terms of how we actually live."
These features of the Constitution make clear why philosophies such as "originalism" and "strict construction" don't make sense. Strict construction seems to say that judges should stick to the text or read the text narrowly. But the text can only get you so far because so many of the vital phrases of the Constitution-"equal protection of the laws," "due process of law," "unreasonable search and seizure," "freedom of speech"-express broad commitments, rather than precise directives. The original meaning of such words in historical context is important. But if that were our ultimate guide, it would be impossible to explain why, for example, racial segregation or laws discriminating against women should be unconstitutional as we rightly understand them to be today. The fact is that the Framers deliberately chose broad language that would be adaptable to new challenges and new social understandings over time.

Keeping Faith sets out in detail the meaning of the Constitution's text and principles, and how they have been applied faithfully over time. The book explains, in a way that originalism and strict construction can't, why Brown v. Board of Education is correct, why the minimum wage and workplace safety standards are constitutional, and why the right to privacy protects us not only against invasions of person or property but also against undue interference with our most intimate personal decisions. Those results can't be derived from looking at how the text was understood in 1791 or 1868, but they are vital to how we understand the Constitution today. For too long, liberals, progressives and moderates have been defensive about how the Constitution should be interpreted. But an examination of the document itself and the way its principles have been applied over time reveals that the progressive view is in fact the one that has prevailed.

We wrote Keeping Faith with the Constitution for a wide audience: judges, lawyers, law students, journalists, people in the blogosphere and everyone who is concerned about the Constitution and what it means to our society. The book may be especially useful for elected officials, journalists and everyday citizens who are debating the qualities a judicial nominee should bring to the task of constitutional interpretation. For all people who believe in liberty, equality, democracy, access to justice and the rule of law, we hope this book will be a valuable resource.

On the third day of her confirmation hearings, then-Judge Sonia Sotomayor faced pointed questioning on her views on using international law in U.S. courts. She responded that:

[F]oreign law cannot be used as a holding or a precedent, or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law .... [T]he American legal system was structured not to use foreign law; it repeatedly underscored that foreign law could not be used as a holding, as precedent or to interpret the Constitution or the statutes.

She went on to say that although judges should not use international law "in the sense of compelling a result," international law serves to "build up a story of knowledge about legal thinking, about approaches that one might consider."  

A review of Second Circuit decisions written by Justice Sotomayor, or for which she was on the panel of judges who decided the case, elucidates her views on the use of international law in U.S. courts.

Justice Sotomayor avoided international law issues when able to decide the case on another ground. For example, in Center for Reproductive Law and Policy v. Bush, a case involving a challenge to the constitutionality of a U.S. government policy requiring foreign non-governmental organizations to agree not to perform or promote abortions as a condition of receiving government funds, Sotomayor dismissed without addressing the viability of a claim based on customary international law.

When confronted with an international law issue that the court must decide, Justice Sotomayor has been unequivocal in stating that the Constitution reigns supreme. In her opinion in United States v. Ni Fa Yi, a case involving a prosecution for hostage taking under the Hostage Taking Act, an act similar to the Hostage Taking Convention, she cited language from another case that "no agreement with a foreign nation can confer power on the Congress, or on any branch of Government, which is free from the constraints of the Constitution."

In addition, Juustice Sotomayor defers to Congress on issues of international law. In Zheng v. Department of Justice, a summary order not selected for publication in the Federal Reporter, the court denied an individual's petition for review of an order of the Board of Immigration Appeals as untimely filed. In addressing Zheng's argument that his deportation would violate the international law principle of family unity, the order emphasized that Congress had clearly imposed a ninety-day deadline that precluded Zheng's petition for review. Citing another Second Circuit decision, the court noted, "if a statute makes plain Congress's intent, then Article III courts must enforce the intent of Congress irrespective of whether the statute conforms to customary international law." This order conforms with the less frequently quoted statement in Sotomayor's speech to the ACLU that "the use of foreign and international law in the American judicial system holds very limited formal force" that comes into play "only when there is goodwill on the part of the president and on Congress in respecting the obligations under those treaties and commitments." 

Juustice Sotomayor even deferred to Congress on controversial issues. In re Air Crash off Long Island, New York, on July 17, 1996, involved the tragic crash of TWA flight 800 and whether a statute limiting recovery to pecuniary losses applied. In her determination that the statute applied and that nonpecuniary losses should not be available Sotomayor wrote, "When interpreting a domestic statute ..., we should not incorporate international concepts of territorial and high seas unless Congress specifically intended to import those concepts into the statute." Addressing this dissent at her confirmation hearings, Sotomayor said that a "personal sense of regret . . . can't command a result in a case." 

Justice Sotomayor has cited decisions from other tribunals only in limited circumstances. In Croll v. Croll, Sotomayor dissented on the issue of whether a child removed from Hong Kong in violation of a court order must be returned to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act. Sotomayor disagreed with the majority on whether the Hong Kong custody order conferred a right of custody within the meaning of the Convention. She noted that decisions of foreign courts, although "not essential to [her] conclusion," were consistent with her conclusion.

A review of these cases shows that Justice Sotomayor will generally avoid international law issues, if possible, always hold paramount the Constitution and acts of Congress, and likely only consider international decisions when interpreting an international convention or as secondary support for her conclusions. Far from "demonstrat[ing] a propensity to rule with purpose-driven results ... [based on] a particular interest in international standards or laws" or "[c]herry-picking desirable [international] law," Justice Sotomayor has cited international law minimally and never relied on it exclusively.

In September, the U.S. Supreme Court will consider, in a rare special pre-Term session, whether federal regulation of corporate campaign contributions is a violation of the First Amendment. The New York Times Editorial Observer Adam Cohen writes today that a majority of the Roberts Court appears to be itching to strike an activist stance by overturning longstanding government regulation of corporate campaign contributions.

Cohen notes that the nations' Founders were "wary of corporate influence on politics" and lawmakers throughout the nation's history, most recently in the 2002 McCain-Feingold campaign finance regulation law, have supported government regulation of corporate contributions to politicians.

Cohen writes:

In 1907, Congress passed the Tillman Act, the first federal law barring corporate campaign contributions. States adopted similar laws.

Since then, Congress has repeatedly ratified the federal ban. In 1925, it folded the Tillman Act into the Federal Corrupt Practices Act. In 1947, it made clear that the ban included not just corporate contributions, but corporate expenditures on campaigns - and that it also applied to labor unions.

He continues that Congress shows no signs of backtracking on federal regulation of corporate campaign contributions, but that a seemingly activist Supreme Court "has decided to force the question: It took a case, Citizens United v. Federal Election Commission, in which the ban on corporate contributions was not a central issue; told the parties to prepare legal briefs on the ban's constitutionality; and rushed to put oral arguments on the calendar in September before the new term even starts."

"The court's conservative majority has been aggressively championing the rights of corporations, but overturning the contributions ban would take it to a new level," Cohen maintains. "Corporations have enormous treasuries, and there are a lot of things they want from government, many of which clash with the public interest."

Finally, Cohen notes that:

If the conservative justices strike down the ban, they would be doing many things they disavow. They would be substituting their own views for the will of the people, expressed through Congress. They would be reading rights into the Constitution that are not expressly there, since the Constitution never mentions corporations or their right to speak. And they would be overturning the court's own precedents.

In a recently filed friend-of-the-court brief in Citizens United, the Constitutional Accountability Center (CAC) also cites the nation's longstanding support of campaign finance regulation and the Constitution's lack of free speech rights for corporations in urging the high court's majority to refrain from tearing down the longstanding precedent supporting regulation of corporate financing of political campaigns.