Lawrence\u27s Stealth Constitutionalism and Same-Sex Marriage Litigation

Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decisionmaking, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly confronts the questions underlying these determinations, but despite their centrality to constitutional decisionmaking, these issues often escape careful scrutiny. Lawrence v. Texas exemplifies the phenomenon. Lawrence framed its central question at a broad level of generality; relied on hybrid reasoning, using equal-protection rationales to support a substantive due process holding; declined to identify a level of scrutiny; and invoked changing public opinion. Each of these moves helped the Court reach its outcome, but, significantly, the Court inadequately theorized each, leaving considerable doubt about how it would approach similar inquiries in future cases. The result is legal uncertainty. For example, cases challenging the constitutionality of state same-sex marriage bans will likely confront many of the same sub-doctrinal determinations that Lawrence purported to resolve. However, because Lawrence did so little to justify its resolution of those determinations, the Court has little to guide it when confronting those determinations again in a marriage case—or any case. Such opacity threatens judicial transparency, consistency, and predictability. That being said, stealth determinations, paradoxically, also can help reinforce judicial legitimacy by accounting for cultural norms and providing the Court with flexibility while still preserving the appearance of impartiality. Stealth determinations, then, can simultaneously undermine and fortify judicial legitimacy, thus reflecting deep tensions in the Court’s approach to constitutional adjudication

Courts, Culture, and the Lethal Injection Stalemate

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of distinct norms has contributed to states’ lethal injection woes. These actors, such as doctors, pharmaceutical companies, and institutional investors, follow their own professional incentives, usually unrelated to the morality of capital punishment. States’ recent execution difficulties raise important questions about the future of the Eighth Amendment and the American death penalty. As certain lethal injection protocols and executions themselves become less common, future courts eventually might reconsider their deference in this area. The Eighth Amendment, after all, encompasses “evolving standards of decency,” which courts often measure with reference to changing state practices. Though constitutional doctrine has played only a bit part in the execution decline, that decline could eventually reshape constitutional doctrine. This story also complicates long-accepted constitutional theories. While the traditional view is that federalism maximizes state policy choices so long as courts and Congress do not interfere, the lethal injection stalemate shows how nongovernmental actors, even uncoordinated ones, can undermine state policies. Courts and the political branches in some states stand united in support of capital punishment. It is, therefore, noteworthy that unorganized actors pursuing their own institutional objectives have obstructed executions and even cast new long-term doubt on previously entrenched penological practices

Originalism\u27s Pretenses

When conservatives in the 1980s offered originalism as a constitutional methodology that could limit perceived judicial excesses, they touted its ability to constrain judges to follow the Constitution’s fixed, original meaning. Though originalism has changed many times since, its proponents still generally preach these related virtues of fixation and constraint. This symposium contribution reviews recent scholarly developments in originalism and contends that originalism’s capacity to fix constitutional meaning and constrain judicial decision making is overstated in both practice and theory. In practice, originalism’s many variants provide the ostensibly originalist justice great interpretive flexibility. Originalist justices are methodologically inconsistent, offering an array of arguments rooted in original intentions, understandings, expected applications, and public meanings. The justices also disagree on when originalism should guide outcomes, further adding to its malleability. In theory, the new originalism, which focuses on the text’s original public meaning, corrects some of these problems. Nevertheless, it too often falls short of its promises to deliver fixation and constraint. While fixation is possible in some instances, the history and semantic practices surrounding many disputed clauses are too muddled for the interpreter to identify a single, original public meaning. Moreover, many constitutional provisions were framed and ratified during periods of profound intellectual flux, when key constitutional concepts and terms changed shape rapidly. Indeed, the very process of constitution making may have added further indeterminacy, as many members of the Founding and Reconstruction generations understood constitutional language not to provide precise legal guidance but rather open-ended political compromise. As for constraint, many new originalists intelligently concede that their theory constrains only insofar as constitutional construction must not violate the text’s original public meaning. However, by requiring such fidelity to the constitutional text, the new originalists, far from cabining judicial discretion, invite justices to revisit settled constitutional precedent. To be fair, other interpretive approaches similarly fail to constrain justices, but originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty

THE RHETORIC OF CONSTITUTIONAL ABSOLUTISM

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a more nuanced, conciliatory constitutional discourse that would acknowledge competing arguments without compromising legal clarity or the rule of law

In Search of a Theory of Deference: The Eighth Amendment, Democratic Pedigree, and Constitutional Decision Making

The Supreme Court’s recent Eighth Amendment death penalty case law is in disarray, and the confusion is symptomatic of a larger problem in constitutional doctrine. In Baze v. Rees and Kennedy v. Louisiana, the Court approached the challenged state policies with vastly different levels of deference. Though the Court purported to apply longstanding Eighth Amendment tests in both cases, Baze was highly deferential to state policy, and Kennedy was not deferential at all. Remarkably, neither the Court nor legal scholars have acknowledged, let alone justified, these contrasting approaches. This Article proposes a theory of deference to address this discrepancy. Courts often premise deference in constitutional cases on political authority and epistemic authority. While these rationales make sense in theory, courts sometimes mechanically repeat them without asking whether the responsible institution enjoys either kind of authority in reality. Courts should engage in such inquiries before summarily granting or denying deference. In light of these principles, the Court approached the problems of deference in Baze and Kennedy carelessly. Whereas Baze assumed (without explanation) that the state possessed political and epistemic authority worthy of deference, Kennedy assumed (also without explanation) the exact opposite. Attention to these issues in the Eighth Amendment and other constitutional contexts would encourage more transparent, deliberative policymaking and more careful, candid judicial-constitutional decision making

ORIGINALISM’S PRETENSES

When conservatives in the 1980s offered originalism as a constitutional methodology that could limit perceived judicial excesses, they touted its ability to constrain judges to follow the Constitution’s fixed, original meaning. Though originalism has changed many times since, its proponents still generally preach these related virtues of fixation and constraint. This symposium contribution reviews recent scholarly developments in originalism and contends that originalism’s capacity to fix constitutional meaning and constrain judicial decision making is overstated in both practice and theory. In practice, originalism’s many variants provide the ostensibly originalist justice great interpretive flexibility. Originalist justices are methodologically inconsistent, offering an array of arguments rooted in original intentions, understandings, expected applications, and public meanings. The justices also disagree on when originalism should guide outcomes, further adding to its malleability. In theory, the new originalism, which focuses on the text’s original public meaning, corrects some of these problems. Nevertheless, it too often falls short of its promises to deliver fixation and constraint. While fixation is possible in some instances, the history and semantic practices surrounding many disputed clauses are too muddled for the interpreter to identify a single, original public meaning. Moreover, many constitutional provisions were framed and ratified during periods of profound intellectual flux, when key constitutional concepts and terms changed shape rapidly. Indeed, the very process of constitution making may have added further indeterminacy, as many members of the Founding and Reconstruction generations understood constitutional language not to provide precise legal guidance but rather open-ended political compromise. As for constraint, many new originalists intelligently concede that their theory constrains only insofar as constitutional construction must not violate the text’s original public meaning. However, by requiring such fidelity to the constitutional text, the new originalists, far from cabining judicial discretion, invite justices to revisit settled constitutional precedent. To be fair, other interpretive approaches similarly fail to constrain justices, but originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty

Lethal Injection and the Problem of Constitutional Remedies

I. An Overview of Lethal Injection............................................................... 263 A. The Three-Drug Protocol.............................................................................. 263 B. The Supreme Court’s Fractured Decision in Baze v. Rees ............................273 II. Remedial Anxieties and Lethal Injection ................................................ 280 A. How Remedy Constrains the Right............................................................... 280 1. Remedial Concerns in Baze................................................................. 283 2. Remedial Concerns in Other Lethal Injection Cases ......................... 286 3. Concerns About Delay......................................................................... 293 B. The Structural Injunction’s Shadow over Lethal Injection........................... 296 III. Political Process Failures and the Need for Judicial Intervention.....................................................................................................301 IV. The Modesty of Lethal Injection Remedies..............................................314 A. Remedial Options .......................................................................................... 31

OF LAW AND LEGACIES

This contribution to the symposium on President Obama’s constitutional legacy examines the relationship between constitutional law and presidential legacies. Americans respect or even revere many presidents despite their apparent constitutional violations. Some unconstitutional actions, though, appear more forgivable than others. The effect constitutional transgressions may have on a president’s more general legacy turns on a variety of contextual factors, including, among others, the president’s values and vision, the administration’s political successes and failures, political opponents’ principles and behavior, the challenges confronting the country, and the nature of the constitutional norms at issue. Constitutional law, as articulated by lawyers and judges, is not irrelevant to presidential legacies, but it rarely defines them. While some of President Obama’s unilateral executive actions raised serious constitutional questions, it is unlikely his legacy will turn on those measures’ legality. In most cases, President Obama followed past presidential practices and offered colorable (though admittedly contestable) legal defenses. Moreover, context helps explain, if not completely justify, many of Obama’s controversial actions. To this extent, historians and members of the general public are likely to view the Obama presidency through a broader, nonlegal lens, considering, inter alia, the challenges he inherited, the policies he helped implement, and, especially, the vitriolic opposition he faced in Congress. Indeed, the lead constitutional story from the Obama years will likely highlight not particular executive actions but rather our constitutional system’s deficiencies more generally. U.S. politics became increasingly dysfunctional during Obama’s presidency, and they have not improved since. Dysfunctional politics, of course, ought not immunize executive actions from legal attack. However, the depth of this dysfunction should encourage lawyers to broaden their focus beyond narrow questions of legality in individual cases to more fundamental concerns about the health of our constitutional democracy