LIBERALS MAY NOT LAUGH LAST:
Why The Charges That Judge John Noonan Makes Against Current Supreme Court Conservatives May Apply To Their Jurists, Too

By EDWARD LAZARUS

Thursday, Sep. 05, 2002

Last month, conservative U.S. Court of Appeals Judge John T. Noonan, Jr. published a book entitled Narrowing the Nation's Power: The Supreme Court Sides with the States. In it, he accuses his fellow conservatives on the Supreme Court of judicial hypocrisy in their approach to states' rights.

In response to Noonan's book, the liberals of the legal world are engaged in an orgy of I-told-you-so's. The New York Times went so far as to devote a lead editorial to its endorsement of Noonan's accusations, coupled with a call for a new era of "judicial restraint" at the high court.

The sanctimony is regrettable and misplaced. It isn't that Noonan's charges are ill-founded. Quite the opposite. The problem is that the very same folks who are celebrating Noonan's challenge to the integrity of the conservatives who control the Rehnquist Court, are at the same time either blind to, or simply ignoring, a similar problem on the liberal side of the ongoing civil war over Constitutional interpretation.

Noonan's Complaints Are Both Familiar and Straightforward

From all the hubbub, one would think that Noonan had developed a novel analysis of the Rehnquist Court's federalism jurisprudence. Actually, a number of commentators (including several FindLaw columnists and, dare I say it, yours truly) have been screaming from the hilltops that the Supreme Court's recent expansion of states' rights is built on the quicksand of intellectual dishonesty. The novel aspect of Noonan's account is simply that the critique now comes from within the fold.

Our complaint, now echoed by Noonan, is straightforward. The conservative Justices claim a paramount fidelity to constitutional text and its original meaning. Yet when it comes to issues of states' rights (as well as other politically divisive issues such as affirmative action), they jettison these interpretive methods - only to adopt alternative interpretive methods that they deride in other contexts. In lawyer's terms, the Justices are "results-oriented," using whatever interpretive logic will get them to their desired conclusions.

The Eleventh Amendment Example: A Radical Departure From Constitutional Text

The Eleventh Amendment's text declares that "The Judicial power of the United States shall not be construed to extend to any suit in law and equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Conservatives leapfrog from this text to an interpretation of the Amendment that vastly expands the scope of state sovereign immunity.

That makes perfect sense as far as suits against a state by "Citizens of another State," or by foreigners - which are specifically mentioned in the Amendment - are concerned. But staggeringly, the conservative Justices have claimed that the Amendment also extends to suits commenced against a state by one of its own citizens.

The extension is totally unjustified by the language: the Amendment names two kinds of suits, and this is not one of them. Indeed, in encompassing suits by other states' citizens, the drafter plainly intentionally left out suits by a state's own citizens.

Nevertheless, thanks to the conservative Justices, it is the law of the land that, under the Eleventh Amendment, states enjoy sovereign immunity against suits brought by their own citizens, as well as by those of other states. So much for these Justices' absolute devotion to constitutional text

Meanwhile, not satisfied with closing off the federal courts, the same supposedly "strict constructionist" conservatives have discovered within the Constitution an unwritten generalized sovereign immunity that also shields states from suits brought in state court. Never mind that the Eleventh Amendment clearly refers to "the Judicial Power of the United States" - not that of the individual states - or that the pro-federalism conservatives, in other instances, insist on keeping these powers stringently separate and distinct.

Noonan Deserves Applause, But Legal Liberals Don't Deserve to Be Complacent

It's not terribly hard to discern what might be motivating the conservatives' intellectual somersaults. They don't have much sympathy for the kinds of civil rights and civil liberties claims often brought against states - and so they've set aside their usual interpretive principles to close the courthouse door. They want to shut out not only out-of staters, but also in-state plaintiffs, and want to close the door not just of federal, but also of state courts - the text of the Amendment be damned.

Judge Noonan, a maverick conservative on the Ninth Circuit (that maverick of federal courts), should be commended for calling it like it is. Those liberals, however, who are celebrating Noonan's honest break with his ideological brethren should take a hard look in the mirror. Their judicial heroes fare little better than the conservatives on the scale of intellectual consistency.

Liberals Such as Justice Brennan Have Cherry-Picked Interpretive Rules, Too

On the death penalty, Brennan explicitly and uniformly refused to abide by this and other precedents. Instead, even when settled law clearly permitted the imposition of capital punishment, he voted to vacate and reverse every single death sentence that came before the Court between 1976 and his retirement 15 years later.

Brennan's approach to the death penalty (which Justice Thurgood Marshall shared) was troubling in many respects. Suffice it to say for present purposes, however, that it ended up seriously compromising the integrity of his jurisprudence.

When Brennan and his allies were in control at the Court they didn't need to worry much about the doctrine of stare decisis - which counsels in favor of standing by existing precedents. They were revisiting old doctrines and regularly remaking the law.

But by the late 1980s, the shoe was on the other foot, and Brennan was fighting to hold on to his legacy against a Rehnquist-led conservative counter-revolution at the Court. Suddenly, stare decisis was Brennan's favorite doctrine and he used it shamelessly to argue that leading civil rights precedents, such as Roe v. Wade, should be preserved.

The contradiction in Brennan's thinking was obvious. He had no truck with stare decisis when, as with the death penalty, it led to results he disfavored. But he embraced it wholeheartedly when it served his purposes, as in defending Roe. Before liberals gleefully parrot Noonan's critique of the current conservative Justices, they should think back to Brennan and remember he, too, sometimes chose the interpretive method that suited the result he sought.

The Harm of Judicial Hypocrisy, Regardless of the Hypocrite's Ideology

The sad truth is that both liberal and conservative jurists have resorted to blatant hypocrisies to advance their respective ideological agendas. And in the process, they have substantially devalued the judicial process.

The legitimacy of judicial decisionmaking ultimately depends on the integrity of the methods that judges employ. Judges cast doubt on their own authority if they invoke intellectually inconsistent and even dishonest arguments to justify the decisions they reach - that is, if they reduce their decision making to a purely ideological calculation untethered to sound interpretive principles that are consistently applied. Too many judges, of all stripes, for far too long have been doing just this.

Next week, the Senate will once again take up the issue of President Bush's nominees to the federal bench. In light of Judge Noonan's critique, and in light of the longer history of intellectual flip-flopping it reflects, surely the Senate should place greater emphasis on the character and intellectual fortitude of judicial nominees.

To be sure, experience, intellect, and ideological perspective are important considerations, as well. But they do not guarantee that a nominee will make a good judge. Ultimately, a good judge must have the strength of character to follow his or her principles even if they lead to results that are personally distasteful to the judge. So when C-Span's TV lights start shining, let us have some questions about that.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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