“OUR REPUBLICAN CONSTITUTION” IS NOW AVAILABLE FOR PRE-ORDER ON AMAZON. My new book, Our Republican Constitution: Securing the Sovereignty of the People, won’t be published until February 2016, but you can now pre-order your copy on Amazon. The page does not yet contain a description of the books, so here is one:

In 1776, the Declaration of Independence affirmed that “it is to secure” the inalienable individual rights of the sovereign people that “governments are instituted among men.” By 1787, however, Americans had grown unhappy with “democratic” state governments that had restricted their liberties and stifled the economy. They then replaced the Articles of Confederation with a new form of “republican” government embodied in a written constitution. But because the Constitution of 1787 preserved the democratic power of states to maintain slavery, it fell to the newly-formed antislavery Republican party to complete our Republican Constitution with the 13th, 14th and 15th amendments. Today, the constitutional limits on state and federal power are often criticized as “undemocratic” and even ignored altogether. This book explains the origins of our Republican Constitution, how it has been undermined, and the proper role of judges in securing the sovereignty of We the People, each and every one.

So if you pre-order yours here today, you can truly say you were among the first!

JEFF ROSEN PRAISES JOHN ROBERTS’ “DEFERENCE TO THE INTENT OF CONGRESS AS “THE UMPIRE IN CHIEF,”: saying he

embraced a bipartisan vision of judicial restraint based on the idea that the Supreme Court should generally defer to the choices of Congress and state legislatures. His insistence that the court should hesitate to second-guess the political branches regardless of whether liberals or conservatives win is based on his conception of the limited institutional role of the court in relation to the president, Congress and the states.

I have little doubt that this is how the Chief Justice thinks of what he did. And why he relied so heavily on deference in his dissent in Obergefell.

BIG NEWS: Important affirmative action case returns to the Supreme Court. Ilya Somin comments:

Earlier this morning, the Supreme Court chose to hear Fisher v. University of Texas, an important case challenging racial preferences in admissions at the University of Texas. The outcome is likely to have important implications for the future of affirmative action. . . .

It seems unlikely that the justices would have chosen to hear this case again, if a majority were satisfied with the Fifth Circuit’s ruling on remand. Most likely, the five more conservative justices decided to take it because they intend to overrule the Fifth Circuit and forcefully reiterate the requirement that judges must not defer to universities on the narrow tailoring issue. The Court could potentially expound on the need to avoid deference on the narrow-tailoring requirement in greater detail than it did in Fisher I, so as to reduce lower court judges’ room for discretion and prevent them from continuing to defer, as the Fifth Circuit essentially did in its post-remand decision. If that happens, supporters of racial preferences in admissions might end up worse off than they would have been if the Fifth Circuit had not chosen to be obstreperous after the remand, and had struck down the Texas program, as many expected it would.

DAVID BERNSTEIN: Is it possible to reconcile Judge Posner’s take on Holmes and Lochner, and Roberts and Obergefell?

RELATED: When a Judge criticizes a Justice, it’s best if the judge doesn’t make mistakes of his own

HOW UBER SURGE PRICING REALLY WORKS: “The data . . .  suggest that surge pricing doesn’t seem to bring more drivers out on the roads, but rather pushes drivers already on the job toward neighborhoods with more demand–and higher surge pricing.”

NICE SPEECH CASE WIN FOR THE INSTITUTE FOR JUSTICE:

In an important decision at the intersection of free speech and property rights, the U.S. Supreme Court today vacated a 4th U.S. Circuit Court of Appeals judgment that had allowed the city of Norfolk, Va., to suppress a banner protesting the government’s illegal attempt to seize private property by eminent domain. Today’s decision sends the case, Central Radio Company v. City of Norfolk, back to the 4th Circuit so that it can reconsider the case in light of recent guidance the Supreme Court has provided on sign regulations and free speech in Reed v. Town of Gilbert.

CONSTRAINT vs DEFERENCE:  Two possible meanings of “judicial restraint”

On Saturday, I criticized Jeb Bush’s stated criteria for choosing judges as what has led to continued disappointment by conservatives in Republican nominated justices. He said: “You focus on people to be Supreme Court justices who have a proven record of judicial restraint.” But what does “judicial restraint” mean?  There are two quite different possibilities:

1. Constraint: “Judicial restraint” could refer to confining oneself to following the meaning of the text of the Constitution (and of statutes) — by which is meant its original meaning — whether this leads to upholding or invalidating properly enacted statutes; or
2. Deference: “Judicial restraint” could refer to deferring to the will of the majority as reflected in the acts of the more “democratic” branches — i.e. “unelected unaccountable” judges should avoid wherever possible thwarting the will of the people, by which is meant the political preferences of the majority of the electorate. The emphasis here is not on the correctness of constitutional analysis, but on judicial deference to majority will.

What is of utmost importance is that these are not the same thing. . . .

Read the rest on the Volokh Conspiracy.

JEB BUSH DIGS A DEEPER HOLE ON JUDGES. In responding to criticism of his brother’s selection of John Roberts to be Chief Justice, Jeb Bush revealed what he looked for in choosing judges as governor. Turns out it is exactly the sort of judicial conservatism that gave us our current problem with the Supreme Court:

“When I was governor, we tried to find people with a proven record of judicial restraint, and people that were committed to enforcing the constitutional limits on government authority. In essence, what I’m saying is I think we need to have people that have not just theoretically, but have had a proven record of not legislating from the bench.”

He then doubled down:

“All justices disappoint their presidents some of the time but Souter was like a 90 percent swing and miss,” Hewitt said. “How do you avoid Souters?”
“You focus on people to be Supreme Court justices who have a proven record of judicial restraint,” Bush answered.

This is exactly the problem with the judicial philosophy promoted by many conservatives for the past 30 years: “judicial restraint” in “enforcing constitutional limits on government authority” leads to NFIB v. Sebelius.  In fairness, that is not what Bush actually said but, as George Will recently observed, that is what this judicial philosophy produces in practice.

Thoughtful conservatives today will insist that, properly defined, “judicial restraint” includes enforcing constitutional limits, and the term could be defined that way.  But that is not the mentality of “restraint” as it was originally formulated by the Progressives and has been perpetuated by some conservatives. For years, “judicial restraint” has been primarily about not thwarting the will of “democratic majorities.” There are myriad doctrines to accomplish this. For example, you adopt a “presumption of constitutionality” that cannot be rebutted. Or find a “saving construction” of a statute to avoid finding it unconstitutional. Or you “defer” to administrative agencies’ interpretation of statutes. Or you make a statute “work” as the “legislature intended” (even if that means ignoring the plain or natural reading of its words).

Many good conservatives truly wanted Obamacare invalidated in NFIB because it was unconstitutional. And they then sincerely wanted it to be enforced according to its terms in King. But selecting judges with the judicial mindset of “judicial restraint” and “deference” to the majoritarian branches leads to the results we witnessed in NFIB and King. If conservatives persist in supporting presidents who select judges on this basis, they will persist in being disappointed.

I know, I know. What about Obergefell and gay marriage? Didn’t that result from a lack of “restraint”? No, if you don’t approve of Obergefell, it is because you do not agree with the constitutional rationale Justice Kennedy articulated for invalidating the state laws at issue, not because he was “unrestrained.” Winning Obergefell on the grounds urged by Chief Justice Roberts in his dissenting opinion also gives you NFIB and King. If you want to avoid the latter, then you should criticize the majority on the ground that Justice Thomas did in his dissent: that the majority misinterpreted the Due Process Clause, not that they were “unrestrained.” You will notice that Chief Justice Roberts did not join Justice Thomas’s dissent (though regrettably, Justices Thomas and Scalia joined his). The Chief Justice’s dissent was all about restraint and only secondarily about correctness. He cited Lochner v. New York 16 times because Lochner was supposedly about activism, rather than appropriate restraint. In contrast, Justice Thomas appealed to the original meaning of “the due process of law.” There is a big big difference between these two judicial mindsets.

So, if conservative Republicans want a different performance from the judiciary in the future, they must vet their presidential candidates to see whether they understand this point. Jeb Bush clearly does not. And I have personally heard Marco Rubio and Carly Fiorina say much the same sort of thing about judges, showing that they do not understand this either–at least not yet. Only Rand Paul has been very clear about the duty of judges to invalidate unconstitutional law without restraint or deference.

I haven’t heard yet what other candidates think about this, but everyone should be listening closely. If you hear catch phrases like “judicial restraint,” “deferring” to “the democratic branches,” or “not legislating from the bench,” then you know this candidate intends to repeat the mistakes of past Republican presidents.

Conservatives must learn from the recent past what not to look for in a justice.

Cross posted on The Volokh Conspiracy.

PUTTING STUDENT EVALUATIONS IN THEIR PLACE? Seen at George Mason University School of Law

GAY MARRIAGE IS HERE – NOW WHAT? A diverse set of conservative and libertarian reactions to yesterday’s ruling on gay marriage in The Federalist, including contributions by Senator Mike Lee and Cato’s Ilya Shapiro. (The Federalist is becoming one of my favorite sites.)

READ THIS LEARNED FOOTNOTE: Texas Supreme Court Justice Willett rejects “the Lochner bogeyman”

Writes David Bernstein:

As I pointed out earlier, Chief Justice Roberts’ dissent today ignores the last thirty years of scholarship and uses Lochner as a bogeyman to reject a due process challenge to states’ refusal to recognize same-sex marriage. Roberts’s description of Lochner is embarrassingly ahistorical.

By contrast, Texas Supreme Court Justice Don Willett’s concurring opinion today (joined by two other Justices) in Patel v. Texas Dept. of Licensing, blogged in detail by Eugene below, explicitly rejects what he calls “the Lochner bogeyman.”

In a footnote, he proceeds to provide a scholarly, accurate account of Lochnerand economic liberty in historical context, making Roberts’s opinion look even worse by contrast–especially because Willett’s opinion refutes several of Roberts’s claims.

Read Justice Willett’s learned footnote here.

WE WON’T BE FOOLED AGAIN? GOP Hopefuls Must Have Plan to Avoid Another Roberts/Kennedy

The key is a demonstrated commitment to following the original meaning of the Constitution, whether that leads to upholding or invalidating a “popularly-enacted” law. Avoid those who advocate “judicial deference,” “judicial restraint,” “judicial minimalism” or who condemn “judicial activism” or “legislating from the bench.” None of those catch phrases concern how to interpret the Constitution, and those who utter these largely empty homilies about judicial role are very likely to disappoint. And don’t let your nominees use “precedent” as an out either. By now, much precedent is pretty bad, and is itself merely living justices deferring to dead justices (when they care to). The confirmation hearing will be tougher, but no pain, no gain.

And you better have a Republican Senate that is will not restore the filibuster.

TO RECAP: Insist on a demonstrated commitment to follow the “original meaning” of the text wherever it may lead.

BONUS TIP: Don’t let a Bush nominate any justices.

DAVID BERNSTEIN: Chief Justice Roberts: same-sex marriage not constitutionally protected because Lochner

Chief Justice Roberts invokes Lochner v. New York by name no less than 16 times in his [Obergefell] dissent.

Not the real Lochner v. New York mind you, a relatively modest opinion, grounded in precedents holding that the Fourteenth Amendment protects liberty of contract in the absence of a valid police power rationale for the infringement.

The real Lochner held that a criminal law imposing maximum hours on bakers was not a justified infringement of liberty of contract under the police power because though it was defended as a health law, the government presented no evidence that the baking was especially unhealthful, while the plaintiff presented strong evidence to the contrary.

The real Lochner did not even inhibit governments from imposing maximum hours laws in other circumstances–the Supreme Court upheld the next dozen or so maximum hours cases to come before it.

Instead, Roberts invokes the Lochner of historical myth.

And this:

It’s at least slightly embarrassing that Roberts is either unaware of or chose to ignore the last thirty years of Lochner-related scholarship in favor of invoking hoary myths that are useful for rhetorical purposes, and that Thomas and Scalia joined the opinion.

As I wrote at the end of my book, when the Justices use Lochner “as shorthand for what they consider the activist sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.” And their understanding of Lochner is always inaccurate to boot.

The real Lochner was about identifying and applying the proper extent of the state police power, not identifying fundamental rights, whose invocation then did all the work. There is none of this in Justice Kennedy’s opinion for the majority in Obergefell.