Friday, July 2, 2010

Judicial Deference and "Silly" Laws

Earlier this week, Senator Tom Coburn asked Elena Kagan if she would uphold a federal law that required every American to “to eat three vegetables and three fruits every day.” Kagan said that the hypothetical law sounds "dumb." She also reminded Coburn that Congress must enact wise legislation and that the political process is the best place to weed out irrational proposals.

This argument is a staple of constitutional law. According to established Supreme Court doctrine, unless a law infringes a constitutional right or discriminates on an impermissible basis, the Court will apply a very deferential standard of review. Liberal and conservative judges subscribe to this notion. The conflict centers around naming those moments when laws infringe protected rights or deny equal protection.

Although the notion of judicial deference is fairly established, New York Times reporter Adam Liptak lauds Kagan's approach in a recent article. Liptak, however, fails to consider the more compelling question of Kagan's views on equal protection and due process. Laws can be "dumb" and unconstitutional simultaneously.

For example, Liptak notes that Kagan views the sentencing disparity between crack and powder cocaine as a "policy" issue. That point is unassailable. But the sentencing laws also raise a question of equality, due to their racial impact. Legal scholars have long criticized the disparity, but most courts have held that the policy does not violate the Equal Protection Clause.

When Kagan worked for President Clinton, she advised her boss against eliminating the disparity, on the grounds that it would be unpopular (although Durbin says she once accepted narrowing the disparity). Now, it appears that she also believes that the Court should not undo the disparity. But the Court is often the last refuge for groups seeking protection against "dumb" -- and discriminatory -- legislation. Kagan's centrist responses would leave persons of color without a judicial or political remedy.

Deference and Rights Infringement
Justice Stewart famously made an argument for judicial deference in his dissent in Griswold v. Connecticut. Griswold established the "right of privacy" and invalidated a Connecticut law that banned the sale of contraception. The ruling was limited to married couples.

Stewart dissented and argued that the law was "uncommonly silly." Stewart said that had he been a member of the Connecticut legislature, he would have voted against the law. As a member of the Court, however, Stewart believed that he could not invalidate the measure. The law was simply a policy preference.

Justice Thomas, quoting Stewart, made the exact same argument in his dissent in Lawrence v. Texas. Lawrence, another "privacy" case, invalidated a Texas statute that criminalized same-sex sodomy. Thomas argued that the law was silly but constitutional.

Asking whether the Court can or should invalidate "silly" laws misses the point. This is clearly not the duty of courts, and Supreme Court doctrine already reflects this logic. The broader and more important question is whether silly or sound laws violate the Constitution. On the issue of substantive constitutional law, Kagan -- like others before her -- has not revealed much about her potential approach.

Durbin, however, pressed Kagan on this point -- even raising the issue of Griswold and the right of privacy. Kagan conceded that she believed the Constitution protects substantive liberty interests, but she also admitted that reasonable minds can disagree on the extent of these rights. What Kagan believes, however, remains a mystery on many issues. To her credit, however, the confirmation process does not afford candidates the opportunity to reveal their cards without partisan rancor.


Prof. David B. Cruz said...

Characterizing as "silly" laws such as those invalidated in Griswold or Lawrence also trivializes the very serious harms they wreak, harms which should inform courts' assessments of constitutionality or unconstitutionality. Connecticut's anti-contraception law precluded birth control clinics from operating legally, depriving countless less wealthy women of access to reliable birth control, as my colleague Mary Dudziak has discussed in her article "Just Say No: Birth Control in the Connecticut Supreme Court Before Griswold v. Connecticut," in P. Finkelman and S. Gottlieb, eds., Toward a Usable Past: Liberty Under State Constitutions (Georgia University Press 1991), reprinted 75 Iowa Law Review 915 (1990). "Sodomy laws" including Texas's "homosexual conduct law," which Lawrence struck down, had been used as legal justification for all manner of discrimination against lesbigay people. Justices Stewart and Thomas revealed their failure to appreciate laws' effects on real people's lives when they called those laws "silly." Let us hope that Justice Kagan will not be as obtuse.

David B. Cruz
Professor of Law, University of Southern California Gould School of Law

Darren Lenard Hutchinson said...

Hello, David, and thank you for your comments. I completely agree. The "silly" description masks serious injury. Kagan does not strike me as someone who would agree with that line of argument, but the hearings have not substantiated my intuition.

Josh Dowlut said...

Just watched the CSPAN replay of this.

1. The Brown/Plessy statement. Coburn conceded that Brown overturned Plessy, but he argued that it was for original intent reasons hidden in the 14th Amendment.

2. After watching the long, drawn out go around of the 3 vegetables a day question, it is pretty clear which way she will rule if and when the individual mandate comes before the court.

3. Yes, legislators are the primary guard against "silly" or unconstitutional laws, but the US Supreme Court is the ultimate guard against sill or unconstitutional laws and she failed to see the distinction between regulating economic activity and mandating that inactivity turn into activity. Inactivity by its very nature is not economic activity or any activity for that matter so any laws mandating an activity exceed the scope of the Commerce Clause. Before something can be considered economic activity, it must first be activity.

Darren Lenard Hutchinson said...


1. It is hard to defend Brown on "original intent" grounds. The Court did not even attempt to do so. Instead, it held that the original intent was unclear or inconclusive. A lot of legal historians have argued that Brown cannot be justified at all using originalism. That was the point of my earlier essay on this subject.

2. I suspect that even conservatives like Kennedy will vote to uphold the mandate. The case on medicinal marijuana and a recent case involving post-conviction sanctions for sex offenders have expansive views of congressional power. I could see them upholding the mandate by a 5-4 or 6-3 vote.

3. I have written on this subject before. I disagree with your analysis. You can find my arguments using the search window.

Josh Dowlut said...

Thought I posted this late last night but it didn't come through.

Your blog is the top response for a Google search of: constitutionality of healthcare

Darren Lenard Hutchinson said...

Josh: Thanks for letting me know. I continue to get tons of hits on that post. Now I know why....

Hippi Chicki Niki said...

@Prof. Cruz:

Hear! Hear!

It seems that no one is keeping in mind the disparate impact that some "silly laws" have on certain groups of citizens. There are times when those "silly" laws have intentions that are very serious and/or very serious consequences.

This is exactly what Sotomayor was talking about in the statement that so many people focused on during her confirmation without really grasping the point of the statement. She was referring to keeping in mind the effect rulings will have on average citizens - even those that are unlike the justices: the poor, the minorities, the LGBTs, and the women. Often, they fail to appreciate the impact on the lives of these groups.

The impact of sentencing recs that are irrationally harsher for cocaine cooked with baking powder than for cocaine not cooked with baking powder is a perfect example.

There should be no need to even get to the original intent issue in these cases. The disparate impact on these groups should be enough to justify overturning them on equal protection grounds. From the crack-sentencing laws worsening the already appalling disparity between how minorities are punished in the criminal justice system to the Texas sodomy law that only applies to a certain group of people, it should be enough that it leads to the unequal treatment of a certain group of citizens even if it is the silliest law every imagined.

Kurt said...

A federal law mandating that Americans eat healthy food a certain number of times daily is clearly unconstitutional. Not only because it offeneds our "rights" as individuals, but more importantly because Congress has no authority to pass such a law. The Constitution does not grant lawmaking power in this area to the federal government. See the 10th Amendment.

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