Lately, there has been an abundance of commentary on the Second Amendment and its role in society due to school shootings and the “March for Our Lives.” Sadly, much of the commentary has been rooted in emotion and there has been too great a willingness to dismiss  a clear right defined under the Constitution, “the right to bear arms.”

This post is dedicated to informing and offering a brief, but respectful opinion on the matter. Society would go a long way in having an educated perspective by reading the brilliance of the late great Supreme Court Justice Antonin Scalia and his ideological inverse, but equally gifted intellectual rival, retired Supreme Court Justice John Paul Stevens.

The case at point, District of Columbia v. Heller, illustrated a logical and historical debate on the Second Amendment that is too often lost in the agenda driven media of today. The Supreme Court held that banning handguns and prohibiting firearms from being operative in the home for self-defense purposes violated the Second Amendment.

We will break this down by reviewing excerpts of Justice Scalia’s majority opinion and distinguishing from excerpts in Justice Stevens’ dissenting opinion.

The Second Amendment’s text provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Justice Scalia provides a methodical approach to his majority opinion and goes through each of the major clauses in the amendment to support his argument preserving the originalist definition of the Second Amendment.

He dissected the clause, “Keep and bear Arms” and cited the following historical premises and strong support for the individual to extend ownership over guns even without a military purpose:

“From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”

Scalia’s argument stemmed from the fact that this clause historically has not had a limited understanding defined to just carrying weapons in militia, rather it has also been interpreted to mean carrying weapons for the purposes of individual self-defense. Justice Scalia then disputed the claim of Justice Stevens that the Second Amendment must be strictly regulated to a military purpose.

Justice Scalia highlighted the meaning of the operative clause of the Second Amendment. He discussed how the right to bear arms was a pre-existing right that was simply codified within the text of the Second Amendment.  He traced this historical background to England and the time of the Stuarts when the people of that nation were in fear of governmental abuses and also sought self-defense within the confines of their own home. He stated “but the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.”   This understanding carried through to when the colonists settled in American and began developing state governments and eventually the nation itself.

Justice Scalia, however, was quick to point out that the individual right is not unlimited:

“It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the   Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Justice Scalia is emphasizing that the right to bear arms must be respected, however, it can come with limitations including specified prohibitions that have been already reflected in laws throughout the nation. Prohibitions with regards to the mentally ill and schools can be viewed in the context of the present debate the nation finds itself in.

While Justice Scalia mentions that the carrying of firearms in schools can be forbidden depending on the locality, he does not cast doubt in the existence of the right to bear arms. Some have made calls to repeal the Second Amendment entirely  but this would be a grave mistake. We must be able to distinguish the role of an enumerated right in our Constitution that has stood the test of time and reasonable laws regulating that right.

Overall, the majority opinion in the case found that,

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a  militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

In concluding, while the right to bear arms should not be taken as a blank check without some form of oversight for the sake of safe public policy, it is a violation of the Constitution to deny that the right exists. It also shows a limited understanding of law and policy in general when there is commentary stating that all the problems will be solved with banning the Second Amendment or so strongly restricting it in the public so as to effectively eliminate the right.

Stevens Dissent

Justice John Paul Stevens disagreed with this assessment but provided an interesting method in deconstructing it. He is willing to use originalism to an extent, focusing on the text and historical background to support his basis. This is the common means of interpretation in which Justice Scalia prepared his arguments when interpreting the Constitution and this case was a major example of it. Justice Stevens could be defined as a progressive jurist that typically relied on the living constitutionalist perspective to interpret the Constitution. This perspective is not bound in history and historical meaning, rather it takes an evolving view of the Constitution. The fact that Justice Stevens dared to enter the realm of Justice Scalia in this major case, amplified the debate. While I disagree with Justice Stevens’ outcome I respect the logical method he relied upon to reach his conclusion.

Justice Steven’s main argument is that the Second Amendment has a central focus of an armed citizenry for military purposes. He believes this is clearly defined in the amendment.

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia

He supports this premises by citing examples of legislative history and proposals sent by the framers from the various states for the purpose of crafting the Second Amendment. Some of these proposals emphasized the importance of being military bound with the right to bear arms. Other proposals wholly defined the right as personal without being bound for a military purpose, however, these were rejected. As a result, he argues that the final wording provides a military purpose with the focus on militia, thus this should be the central means of interpretation.

The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed

I do not find, however that legislative history serves as ample support for his premise. Legislative history should not be revered to the same degree as actual law. Often, the debates, discussions held and early proposals leading up to the adoption of a law were just that, debates discussions, and proposals. Some ideas may have made it to the final outcome which is the law, while others did not. We cannot hold such a fickle understanding of an area of law to such high esteem.

Even if we do concede the point emphasized by Stevens in regards to the federal standing threat to state sovereignty that does have merits to the Second Amendment discussion, it still does not change the fact that the right to bear arms exists. The thought process in developing the law may have wanted to address the fear of Congress disarmament of its citizens, but for the citizens to actually have an opportunity to resist they required their own right to arms. This is why any discussions about eliminating the Second Amendment should be a non-starter. The right exists and is clear in the text. If people want change they need to address laws with the understanding that the right exists and cannot be denied. They can, however, enact reasonable gun policy while operating within the context of acceptance of this right and not in opposition to it. This is a distinction that must be made and has too often been drowned out in recent discourse.

In 2014, the Supreme Court handed down a major opinion in response to the Affordable Care Act in a case called Burwell v. Hobby Lobby Stores[1]. This concerned the contraceptive mandate provided in the act that required companies to provide coverage for contraceptives for employees. At issue in this case, was the religious freedom interest of a largely closely-held corporation, Hobby Lobby, that is owned and managed by the Greens, a devout Christian family that refused to provide abortifacient contraceptives to their employees. As a result of not providing the additional abortifacient coverage, the company would have been subject to excessive monetary penalties. Justice Samuel Alito wrote a brilliant majority opinion finding in favor of the closely-held corporation in finding that the mandate was not the least restrictive way to ensure access to contraceptives for employees.

The center of Justice Alito’s argument focuses on the Religious Freedom and Restoration Act (RFRA) test that states:

“A government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest.”

The contraceptive mandate did not satisfy the least restrictive means prong of the test because the government did not use the accommodation method provided to religious nonprofit organizations that exempted the organizations from facilitating abortifacient contraceptive coverage to employees.

He explained:

“In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.”

A key element to the exemption provided to religious nonprofits was the concept of cost-sharing.  Churches would receive a full exemption from having to offer that coverage and religious nonprofits would need to complete Form 700 or provide written notice to the government of their intention to not provide.  The government would not impose a cost-sharing burden on that employer, but would find an alternate way to provide the contraceptive coverage to an employee through third-parties or the government itself upon the notice from the employer. This was the system that the government had refused to carve out for-profit closely held corporations that was under hands-on ownership from the religious objector, the Green family.

Justice Alito concluded:

“Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.”

Overall, the Hobby Lobby decision was a step in the right direction for the Supreme Court in protecting religious liberty interests.  Justice Alito’s majority opinion was rooted in the tradition of this nation that considered the views of people of faith worthy of some form of enhanced protection. It should be noted, however, that although Justice Alito pointed out the alternate options the government had provided, he stopped short of a full endorsement of those options. He was just recognizing the fact that those options existed and provided a less restrictive means for entities identifying with a faith mission to comply with the government regulations on contraceptive coverage.

As an aside, before reaching the topic of Notre Dame’s shocking betrayal to the religious liberty lobby with its “compromise”, we first look at an excerpt from Hobby Lobby when it was still at the Circuit Court level before reaching the Supreme Court. Then judge on the 10^th Circuit Court of Appeals and current U.S. Supreme Court Justice Neil Gorsuch provided strong insight into the scope of religious freedom in his concurring opinion.

He stated:

“As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows. In light of the crippling penalties the mandate imposes for failing to comply with its dictates — running as high as $475 million per year — the Greens contend they confront no less than a choice between exercising their faith or saving their business.”

“No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs. The [RFRA] Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Judge Gorsuch touches on some very interesting points in his concurrence at the 10^th Circuit that found in favor of Hobby Lobby. Judge Gorsuch recognized the devout and sincere faith of the Greens and how they should not be punished for holding the closely-held corporation that they own and operate to remain consistent with this belief system. The structure of this closely-held corporation allows for a more hands on approach to operation of the business as opposed to a larger corporation that has in place many layers and a mass amount of shareholders who hold a diverse set of beliefs. Hobby Lobby is a more centralized entity as a closely-held corporation, thus there is a stronger link between the ownership and operation of its mission.

 Notre Dame Breakdown:

The Opening Salvos of Litigation

Notre Dame, as a religious nonprofit university, had challenged the contraceptive mandate for its employees.  It sought a preliminary injunction prohibiting the government from compelling the Notre Dame health insurer and health plan administrator from providing contraceptive coverage to university’s students and employees.  The employees of Notre Dame are self-insured for medical expenses, but Meritain Inc. acts as a Third-Party Administrator (TPA) for the university health plan that is provided by Meritain’s parent company, Aetna.[2]  For students, Notre Dame provides them with an option of obtaining health insurance from Aetna at rates negotiated by Notre Dame.[3]

Notre Dame self-certified as a religious nonprofit by completing Form 700 to avoid paying penalties for not providing coverage, but the employees and students still had a means through the companies to obtain contraceptives even if Notre Dame was not directly financially supporting it.  Notre Dame argued that this burden was still too great because the completion of the form opened the process for the alternate means for the companies to provide coverage.   The court disagreed and explained that, “Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs.”[4]  The court found the exemption mechanism was suitable to properly disconnect the university from providing coverage.  The administration of the coverage though the companies without Notre Dame cost-sharing was an acceptable method to avoid the burden.

Economic interests of Meritain and Aetna were also weighed by the court.  It challenged Notre Dame for its attempt to exclude Aetna and Meritain from “possibly a lucrative chunk of their business” by attempting to gain an injunction against dispensing the coverage.[5]  The court was also not satisfied with the exemption alternatives that Notre Dame offered which centered on the employees and students directly appealing to the government for coverage of contraceptive services without Notre Dame’s involvement.  It found the administrative burden on the employees, students, and government too great.[6]  Injunctive relief was denied.

                     A Retreat?

Elizabeth Kirk of National Review explained  Notre Dame’s shocking decision to backtrack from its original stance and instead pursue a compromise in which Notre Dame would not contest the insurance company providing simple contraceptives to its employees and students upon request. This unfortunate development calls into questions its identity as a Catholic institution of higher learning.

This situation worsens when one considers the fact that the Trump administration recently enacted a  policy  revoking Obama era doctrine that mandated the contraceptive coverage if a religious institution did not qualify for a full exemption. As of December 31, 2017, all birth control coverage in university plans would no longer be mandated and the institutions would not be forced to require coverage if it did not meet government standards. Even with the new provision that has taken into account the religious interests of people of faith, Notre Dame still chose to move forward with a compromise within its institution that would allow coverage for practices outside Catholic teaching.

Yes, it is acknowledged that Notre Dame will fund Natural Family Planning which is in accordance with church teaching in this compromise, but the decision to succumb to the pressure of societal forces for the sake of “pluralism” to allow for simple contraceptives to remain in plans is troubling. Institutions of higher learning should not be afraid of their faith tradition and the beliefs that set them apart from other entities. Providing contraceptives in insurance plans is a valid expectation in a state school that is not affiliated with a faith tradition, not in a Catholic school that claims communion with the church and markets itself as such.

Conclusion

Overall, the Hobby Lobby litigation and Notre Dame compromise are interesting developments in the legal debate about the contraceptive mandate. The Supreme Court took a step in the right direction by carving out an exception for closely-held corporations that operate their company with a faith mission. The excessive penalties for not providing the coverage were an undue burden on faith. The least restrictive means that is cited by the court, however, still carries questions in its own right. One could argue that the indirect provision that would still allow for contraceptives to be covered through the actions of a religious nonprofit entity is still troublesome. The administration has rendered the matter largely moot when it comes to universities with its new declaration, but, the actions of Notre Dame to still allow coverage provide valid reason to be concerned. It threatens the identity of a Catholic institution of higher learning.

[1] 134 S.Ct. 2751

[2] Univ. of Notre Dame v Burwell, 786 F3d 606, 608 (7th Cir 2015).

[3] Id.

[4] Id. at 612.

[5] Id. at 613.

[6] Id. at 617.

Last post, we provided commentary on Supreme Court Justice Clarence Thomas’ perspective on substantive due process and how he strongly opposes the doctrine. This week we contrast that perspective with Judge Don Willet of the Fifth Circuit, a major conservative jurist, who offers support in recognizing substantive due process in the context of economic liberties. Judge Willet prioritizes the liberty interest embedded in the due process clause as worthy of meaningful judicial intervention when necessary.

When Judge Willet served on the Texas Supreme Court his concurrence in the case, Patel v. Texas Department of Licensing and Reg., recognized that the courts have a duty to protect economic liberties, especially in the context of occupational organizations. The facts presented here  revolve around an eye-brow threading business that challenged Texas law for its oppressive regulations in obtaining cosmetology licenses. To obtain a license, it required 720 hours of training and a large portion  of the training hours did not directly relate to the occupation. The court also considered the out-of-pocket expenses of obtaining the hours and the delaying of employment while meeting the hours requirement as constituting an oppressive burden on the small business.[1]

Judge Willet’s opinion is brilliantly written and emphasizes the importance of the licensing requirements for the small business being related to the service provided. The approach of the Texas law infringes on the liberty interest of those seeking to obtain a license with its excessive requirements that did not correlate appropriately with the services provided.[2]

He also spends a large portion of his concurrence providing contrasting perspectives in the conservative legal movement’s approach to economic rights. In one camp, he highlights Judge Robert Bork and traditional conservatives that have looked at the judiciary from a more non-interventionist perspective to give way to majoritarian decision-making. In the other camp, he finds himself, where the judiciary must intervene when necessary and not leave it always to strict majoritarian decision-making. Liberty is the priority and judges have a duty to enforce this as a chief staple of limited government. He finds that “economic freedom is indispensable to enjoying other freedoms.”[3]

While I find myself more in the traditional camp when considering Alexander Hamilton’s clear mandate in Federalist 78 for the judiciary to be bound with judgment authority not with legislative authority, I have a great deal of respect for Judge Willet’s perspective especially within the contexts of these facts. However, we need to be very cautious when calling for judicial enforcement of economic liberties under the due process clause. In the matter presented here, it is a logical solution to oppressive regulations, but often courts can find ways to misconstrue and abuse sound judgment found in other cases when considering their own. This can lead to a problematic doctrine that emerges in which a cycle of damaging precedent is established.

Consider these facts, in an alternate universe suppose Roe v. Wade was one day overturned and states again had the power to make decisions on the legalization of abortions through democratic measures. Now consider Planned Parenthood, a company that provides several health services for women including abortions. Assume a state banned abortion through democratic measures, but a Planned Parenthood remained in the state. How would Planned Parenthood’s claim be adjudicated if it believes the state law has been oppressive to its economic liberty interest and abortions were a key component to its business? On one hand we have that abortion is no longer a Constitutional right, but on the other we may have the court finding an extension of economic liberty under the Constitution with regards to a business practice in opposition to state law. Perhaps the easy solution would be for that Planned Parenthood to no longer offer abortions, but maintain other services, but it is doubtful that it would be content with that arrangement.

This is the slippery slope that can be encountered if we are not careful with how we handle economic liberties. The sound liberty reasoning of Judge Willet in Patel with regards to a burdensome occupational licensing requirement can easily be weaponized into a battle over the creation of new Constitutional rights.

A viable counter-argument from Judge Willet explains that economic regulation is not as often generated by legislatures, but rather by administrative entities that are not subject to proper oversight. When considered it in this context, a judicial deference to legislatures would not be a viable solution to correct unjust policy.[4]  In these situations, the judiciary must provide a forcible intervention in an effort to preserve an individual’s liberty interest to economic freedom.

However, I would then offer the premise that referendums and amendments to state constitutions should be promoted by the state authorities and political figures to address an excessive administrative state. Democracy, when allowed to blossom to its fullest extent, can make meaningful reforms. I do understand the hesitancy of Judge Willet, however, in embracing a full majoritarian platform. The people can be misled and interests of the minority perspective can be shunned by unregulated rule of the masses. That is why these are very difficult questions and it is the responsibility of the branches of government to provide legitimate checks on one another.

Overall, I believe both the perspectives of Justice Thomas and Judge Don Willet provide compelling arguments for how to evaluate substantive due process. I find myself more in the Thomas camp with strict resistance to substantive due process and the uncertainties it poses, however I can also see the wisdom of Judge Willet’s argument that emphasizes liberty and the duty of judges to restrict an unregulated majoritarian state that would challenge it.

[1] 469 S.W.3d 69 (2015)

[2]Judge Don Willet Concurrence,  http://www.txcourts.gov/media/1008502/120657c1.pdf   page 29

[3]Judge Don Willet Concurrence,  http://www.txcourts.gov/media/1008502/120657c1.pdf   page 37

[4]Judge Don Willet Concurrence,  http://www.txcourts.gov/media/1008502/120657c1.pdf  page 17

 

While researching for a prior blog post a couple weeks back, I had a chance to review the Supreme Court’s decision in Obergefell v. Hodges.  Last year, renowned legal scholar Professor Scott Gerber who has spent significant time providing commentary on Supreme Court Justice Clarence Thomas’ jurisprudence spoke at our St. John’s Federalist Society Chapter to reflect on Justice Thomas’ legacy. He suggested at the event that I read Justice Thomas’ dissent in that case to gain insight into his substantive due process jurisprudence and I am glad I had the opportunity to do so.

This week we will cover some modern commentary on substantive due process  and analyze Justice Thomas’ dissent in this case that was rooted in a critique of substantive due process. We will then briefly explain the similarities it has with the late great Judge Robert Bork’s view on this doctrine.

As discussed above, Justice Thomas provided sharp critical commentary of substantive due process in his dissent. He stated:

“It distorts the constitutional text, which guarantees only whatever ‘process’ is ‘due’ before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here—’roa[m] at large in the constitutional field’ guided only by their personal views’ as to the ‘fundamental rights’ protected by that document. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992). By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.”[1]

When evaluating due process cases, Justice Thomas first looks to if there is a deprivation of life, liberty, or property. This is the most important part of the analysis because there must be something that the government is taking or denying without first undertaking fair procedures to validate its decision. This is the part of the analysis where Justice Thomas acknowledges that the door opens for activist adjudication. He warns that a great distortion of the due process clause is relied upon here to support the invention of fundamental rights. He is critical of the legal reasoning which claims that not recognizing this previously unenumerated “right” would violate the due process clause. However, due process should not apply if the right does not exist as a matter of Constitutional law.  It is a doctrine with weak foundations. Due process protections should not be invoked to protect “rights” that do not hold a firm Constitutional basis.

The substantive due process example from this dissent concerns the issue of marriage as a Constitutional right and is one of the best modern examples, however there are many more that have plagued the Supreme Court for generations dating back to the infamous Dred Scott case when persons were classified as property, thus invoking due process. Just as persons should not have been considered property under the clause, neither should marriage be considered under the liberty provision.

For example, states have traditionally been the issuers of marriage licenses and state legislatures had individually defined what constituted the definition of marriage under their state policies. Some chose a limited view to heterosexual unions and others a more expansive definition, thus opening the definition to same-sex unions and requiring the issuance of the licenses to those couples. In both cases, heterosexual and same-sex marriage were not issues of Constitutional law as the Constitution remained silent on expanding the liberty provision to include this marriage right.

As Justice Thomas so eloquently explains later in his dissent:

“Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of ‘substantive’ or ‘procedural’ due process—a party must first identify a deprivation of  ‘life, liberty, or property.’ The majority claims these state laws deprive petitioners of ‘liberty’, but the concept of ‘liberty’ it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.[2]

He then invokes William Blackstone as a strong basis for historical support for this position:

“As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.”[3]

 Judge Robert Bork provides a similar perspective to Justice Thomas in his book, The Tempting of America.  He reasoned that the due process clause was “simply a requirement that the substance of law be applied to a person through fair procedures by any tribunal hearing a case. The clause says nothing whatever about what the substance of the law must be.”[4]  This position reflects Justice Thomas in the sense of warning about constructing substantive rights without a supportive Constitutional basis and taking given provisions out of context to satisfy an unconstitutional end.

In our substantive due process reflections, whether we agree or disagree with the perspective put forth by Justice Thomas and Judge Bork we should consider the nature of due process. Understanding the background of this important clause and its historical context as it has evolved through the generations in law will make us better informed on the law and Constitutionalist principles.

[1] 135 S. Ct. 2584 (2015).

[2] Id.

[3] Id.

[4] Robert Bork, The tempting of America: The Political Seduction of the Law 32 (1991).

 

Byron White was appointed to the Supreme Court by President John F. Kennedy in 1962. During his tenure on the Court he distinguished himself as a maverick on several occasions and was not susceptible to the evolving views of society when he approached cases presented to him. He was one of the best modern-day examples of judicial independence and has received praise from both sides of the ideological aisle. With that being said, it is hard to classify him as either a judicial conservative in the mold of Justice Scalia or a judicial liberal in the mold of Justice Ginsburg. Nor should he be thought of as an ardent Constitutionalist. Rather, he was a justice that understood and embraced a humbleness in his duties as a jurist and recognized the Supreme Court as not a place for judicial legislating, but rather a place for judicial evaluating. It also should be noted that Justice Gorsuch clerked for him.

This post will reflect on a couple of Justice White’s major opinions where he exercised judicial deference in contemplating his role as a justice adjudicating these major matters that held heavy societal implications. Justice White fully embraced his role as a jurist and the duties that came with that responsibility. Alexander Hamilton’s words in Federalist 78 in describing the Supreme Court, “It may truly be said to have neither FORCE nor WILL, but merely judgment” come to mind when reflecting on Byron White.

Justice White was hesitant to endorse the creation of new Constitutional rights and his dissent in Roe v. Wade[1] reflects this perspective.  This sense of judicial humbleness should be embraced by judges today on the bench and be a persuasive characteristic when appointing and voting for the confirmation of judges.

A notable excerpt gives us insight into Justice White’s approach and why this should be a viable standard of measurement for judicial appointments in the modern day:

“The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes….  As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”[2]

He dissects Roe and is very critical of the process outlined in the majority opinion in which the Supreme Court invalidated valid democratic decision-making by state legislatures regarding abortions. It expanded the 14^th Amendment liberty interest that had already been found to encompass the right to privacy in Griswold v. Connecticut[3] to include the right to abortion. Although concurring in Griswold, he found Roe went too far with creating the right to abortion and overruling the decisions of many states on the issue.

Inventing a Constitutional right that will have a major impact on society is not something that should be taken lightly and Justice White firmly believed it was not the place of the Court to end the debate with its ruling. He recognized the power given to the Court in judicial review, but warned that this opinion was an abuse of that power.

Retired Supreme Court Justice John Paul Stevens, who served along side Justice White for many years on the Supreme Court, acknowledged Justice White’s later reluctance to have the judiciary exert excessive influence when it comes to evaluating the liberty interest under the 14^th Amendment. He stated in his work, Cheers! A Tribute to Justice White, that

“Justice White’s opinions, like those of Justices Harlan, Frankfurter, and Cardozo, demonstrate a conviction that the judicial power to define the concept of liberty is not open-ended.”[4]

This conceptual understanding further manifests itself in Justice White’s majority opinion in the case, Bowers v. Hardwick[5]  that concerned state statutes criminalizing sodomy. He demonstrated judicial restraint by not elevating sodomy to a fundamental right, but rather allowing democracy to run its course with the states maintaining the decision-making authority on the matter and maintaining their freedom to assess the merits of the statutes:

“Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.[6]

He positioned himself as a firm critic of judicial intervention when there is no textual anchor to create a fundamental right, most specifically in regards to interpreting the due process clauses in the Constitution. His words hint at the danger of the nation falling under rule by the judiciary when these clauses are distorted to find a fundamental right when the text has not clearly stipulated it. He goes so far as to coining the Court “nearest to illegitimacy” when it takes this path. These are strong words, but this understanding should be embraced in the modern day as judges come to better grasp their role in interpreting, rather than making law.

Overall, Justice White’s approach to the bench can be considered one of humbleness in embracing his role as a Supreme Court jurist and not being afraid to defer to democracy when the case presented calls for it. The independence streak he displayed is a model for judges tasked with the responsibility to interpret law. It is doubtful he was concerned about how the history books would view his jurisprudential legacy, but rather more likely his chief concern was upholding the Constitution and recognizing the limitations that come with this task.

We will close with these thoughts offered by J. Thomas Sullivan on Justice White in his work, Justice White’s Principled Passion for Consistency:

“[H]e demonstrated a strain of judicial independence and dedication to principle that encourages us, as lawyers, to believe that all presidential appointments to the High Court have the potential for faithful service to a vision of the Constitution that is not imbedded in extreme political ideology or blindness to the virtues of reasoned argument.”[7]

Let us take these words to heart and honor Justice White’s legacy by entering a post-politically charged phase when it comes to the appointment of judges. When these judges assume their position on the bench, let them then follow in his footsteps and recognize their role and the limitations it brings.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] 410 U.S. 113 (1973).

[2] 410 U.S. 179 (1973), 221-23. (Doe v. Bolton- companion case to Roe- dissent taken together)

[3] 381 U.S. 479 (1965).

[4] John Paul Stevens, Cheers! A Tribute to Justice Byron R. White, 1994 BYU L. Rev. 208, 214 (1994).

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1796&context=lawreview

[5] 478 U.S. 186 (1986).

[6] Id. at 194-95 (Later this case would be overturned by Lawrence v. Texas , 539 U.S. 558 (2003) which overturned a Texas Criminalized Sodomy Statute).

 

[7] J. Thomas Sullivan, Justice White’s Principled Passion for Consistency, 4 J. App. Prac. & Process 79, 80 (2002) https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1035&context=appellatepracticeprocess