January 6th: Five Years Later

 My comments.

More on the Chief Justice's End of the Year Report

I provided a relatively brief reaction to the Chief Justice's End of the Year Report. 

My first impression was that the author of Trump v. U.S. (presidential immunity) starting with Tom Paine (anti-monarchial) is a bit rich. Since he's talking to the nation, I'm fine with the first over the second. 

Various law professors have impressions. I added a link to one that felt it was inane and hypocritical. Basically, the professor argues the report is junior high school civics (at best) by someone who violated its terms repeatedly. 

Reading between the lines, one can find the Chief Justice of the United States standing up for immigrants; extolling the continuing aspirations of the Declaration of Independence; and reiterating the importance of judicial independence—three messages that are certainly welcome as we look ahead to the second year of the second Trump administration.

Steve Vladeck wonders who Roberts feels is his audience. Vladeck basically sends my sentiment that it promoted general republican values (small "r") and can be seen as anti-MAGA. He figures it is court-friendly mild Never Trump types who are still worried about speaking out. 

The problem, though, is that one has to read between the lines to find those takeaways. Given the year that just transpired—not just the substantive behavior of the executive branch but its unprecedented hostility toward, threats against, and defiance of federal judges—this would’ve been a golden opportunity for Chief Justice Roberts to make the kind of statement that might’ve resonated across the political/ideological spectrum. By opting for subtlety, it seems worth asking exactly who the Chief Justice views as his audience these days. 

Michael Dorf also notes the references to judicial independence (a self-interested one). Dorf also sees some anti-originalist implications. Maybe? Roberts is not a strict originalist anyhow. He's open to some development. 

(Roberts cites the Declaration of Independence as stating overall principles that the Constitution honors over time, more so in its later years.) 

A libertarian sort also references the usage of the Declaration of Independence. Supreme Court opinions from time to time over the years have cited the DOI, including its principles. He disagrees, not too surprisingly, somewhat with Dorf's opinion about the report's anti-originalist sentiments.

Vladeck liked it better when Rehnquist (who had Roberts as a law clerk) used the report to explicitly provide policy concerns and recommendations. Roberts arguably does this in a lower key fashion. There's something to be said about that.

None of the analysts care much about the second half of his report that provides statistics. Are they accurate? Are they provided in a simply straightforward fashion? 

Anyway, I think it is fine on some basic level to use the 250th anniversary of the Declaration of Independence to remind the country about some basic republican principles. Some words about the continuing threats on federal judges would have been good too. He did honor them.

And, yes, I remain cynical about his above the fray celebratory, honorary tone given how much the Supreme Court has failed us (as various people summarize) of late. 

We need change to fulfill the ideals he discusses. And, as Roberts shows, this is a long-term process, with earlier generations not meeting the ideals of the Declaration of Independence.

Ideals are like that. They are things we aim for and imperfectly uphold. The DOI also suggests what should occur when things get too bad.

Change, even if it requires ending long and familiar practices. Change that might be messy and uncomfortable, including for the powers that be. 

Trump Has to Go (Venezeula)

 

My congressional representative (not AOC) has a good statement. More from me here and here. The rule of law = Trump has to go.  

As You Wish

I don't generally listen to books, partially because it takes too long. The audio for this book, written by "Westley," in honor of The Princess Bride, including drops from many people involved, is worthwhile. The last disc annoyingly got too glitchy.

SCOTUS Watch: 2025 Ends

Roberts closed his report with a quote from President Calvin Coolidge for the country’s 150th anniversary in 1926. “Amid all the clash of conflicting interests, amid all the welter of partisan politics,” Coolidge said, “every American can turn for solace and consolation to the Declaration of Independence and the Constitution of the United States with the assurance and confidence that those two great charters of freedom and justice remain firm and unshaken.” Coolidge’s statement, Roberts emphasized, was “[t]rue then” and remains “true now.”

The Chief Justice's Year-End Report on the Federal Judiciary dropped on New Year's Eve at six o'clock per usual. The only other thing dropping this week was a single typo fixed in Alito's dissent in the Illinois case. 

2025 was the 250th anniversary of the beginning of the fight for independence. July will be the anniversary of the Declaration of Independence. Chief Justice Roberts used this for the history portion of the report, starting with a discussion of Thomas Paine and Common Sense. 

The Constitution was signed on September 17, 1787, a date later celebrated as Constitution Day and Citizenship Day.

Suitably, David Souter was born on September 17. He was later especially concerned about the teaching of civics. Souter died last year at the age of 85. 

The report's theme can be cited as an honorable statement of republican values. My first reaction was that Thomas Paine might have had issues with Trump v. U.S., given his views on the dangers and stupidity of monarchy.  (ETA: This takedown is appropriate.) 

(A transcript.)

The fifth anniversary of the event that should have disqualified Trump from future federal office (see 14A, sec. 3) is approaching. Our "solace" in the Constitution being in place might remain, but its firmness in action is not complete. 

Chris Geidner is correct that we should continue to fight to make it "a more perfect union." This includes addressing the issues of the Roberts Court.  

Is it 2027 yet?

ETA: No. Meanwhile, some more oral arguments, with the February calendar dropping.

Animals and the Constitution

The U.S. Constitution provides many opportunities to discuss animals. One case struck down a local ordinance regulating animal sacrifices. The Supreme Court held it was a discriminatory burden on the free exercise of religion.  

Justice Blackmun (dropping a footnote citing multiple groups addressing the specific point) concurred, arguing for a broader view of free exercise that covered generally applicable laws. He added:

A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court's views of the strength of a State's interest in prohibiting cruelty to animals. 

Sherry Colb, who later regularly wrote about animal rights, was one of his law clerks. Her future husband, Michael Dorf (who told me about the book addressed below), once noted that she encouraged him to include that reference.  

Another issue would be the Fourth Amendment. Drug-sniffing dogs have popped up in multiple disputes. Another issue would be if dogs were included among the "effects" or in general among those matters protected by the amendment. 

Is a companion animal simply property for constitutional purposes? See also the Due Process Clause. If the Fourth Amendment (see, e.g., Justice Harlan's opinion in Poe v. Ullman) partially protects "family life," why not also bring in family pets? Simon is not a chair.

Can animals themselves have constitutional rights? Justice Douglas once famously (infamously?) argued that nature can have standing. But, he spoke for humans all the same:

Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents, and which are threatened with destruction.

Should animals as animals have standing to sue? A few cases tried to obtain habeas corpus protection, including using state constitutions. Michael Dorf supports that move to some degree. I'm sympathetic, if not given the current law.

I'm not an originalist. The fact that "original understanding" opposes something is not a complete barrier. The term "person" need not only include humans. We can imagine extraterrestrial life, such as Vulcans, which are humanoid in some fashion. Or tie personhood to sentience.

We come along with a long prologue to our book. The book is written in a scholarly fashion. I skimmed it myself. But it is not so unapproachable that I did not gain a general understanding of their arguments. 

The book is not about the American Constitution. It concerns constitutionalism in general. Can animals be included? The authors argue in the affirmative. 

It helpfully cites many constitutions worldwide, a few that, in some fashion, explicitly protect animal life and/or nature. Nonetheless, none of them goes as far as the thesis here. 

(Another book that provides a means to protect nature overall also provides a few citations to foreign constitutions. A wildlife-centered approach might be Native American-centric.) 

The book argues that sentience is a floor for constitutional rights. Merriam-Webster defines sentience as "capable of sensing or feeling: conscious of or responsive to the sensations of seeing, hearing, feeling, tasting, or smelling." An example given is "sentient beings."

The book offers various aspects of sentience to help explain why it should be the floor for rights. Sentient beings do not only feel pain, which is often cited as a line-drawing device. Thus, vegans often cite pain as a reason for not eating certain animals. 

But is that the only reason? People generally don't want to consume their pets. There is something else involved. Why are we not cannibals, avoiding brains and other parts that might cause disease? 

Sentient animals have experiences, thoughts, perceptions, and some sort of independent existence. They have a "self." They are in effect "persons." This provides a realistic floor for rights. 

Constitutionalism involves:

• Fundamental rights
• Proportionality
• Rule of Law
• Democracy

Sentient animals warrant the protections that constitutions provide. There is a general agreement that animals deserve some basic security. We don't like cruelty to animals. The book offers more.

Fundamental rights that can be applied to non-human animals include life, freedom, and protection from torture or degrading treatment. The habeas appeals, for instance, include attempts to free an elephant from an allegedly harmful zoo. People have tried to protect primates from medical experiments. 

And so on.

Rights are not absolute. Government is about balancing. A concept that is more often found in other constitutional systems (though Justice Breyer is a fan) is proportionality. Basic principles include legitimate regulations, suitability, necessity, and fair balancing.

Animals as constitutional persons (or even moral agents) change the balance. Food might be tasty. But if it causes harm to animals, mere pleasant taste is not (imho) enough to justify factory farming. 

(The book is only about 200 pages long. 

It is not about a bunch of case studies. So, we can debate line drawing. For instance, are seeing-eye dogs appropriate, or do some see them as a sort of involuntary servitude? 

Plus, there are obvious degrees. Abusive horse racing and singular usage for riding for pleasure are different things. Proportionality is a sensible general principle.) 

The rule of law is a basic constitutionality principle. It involves government by rules, not whim. 

The authors provide multiple criteria to help flesh out the rule of law. Law should be public, clear, stable, prospective (no ex post facto law), realistic, and subject to judicial review. There should be the basic rules of procedural due process, including the right to be heard and an appeal. Non-humans included. 

What about democracy? The United States Constitution begins with a reference to "We the People." Animals are governed. They are generally not seen as "the governed," as in "respect for the governed." 

Nonetheless, we respect the interests of young children and others, including the severely mentally disabled, who do not actively govern or choose those who govern. Why are non-human animals so completely lacking as constitutional agents?

The book argues that non-human animals should have their interests represented. The authors offer the concept of a segment (30% is offered as realistic) of the legislature to be representatives for non-humans.

We can carp on details. I don't mean to handwave that. It is a seriously complicated issue. There are loads of non-human animals with competing interests. How do we select non-human representatives? Simply having them represent "animals" seems unrealistic.

At the very least, granting the premise that non-human animals (NHA) should have a role in democracy, it seems wrong to suggest they are interchangeable. That seems to violate the basic rule of moral respect. 

Nonetheless, the general idea makes some degree of sense. People are chosen to defend the interests of children and others unable to adequately defend their legal interests. NHAs can have guardians, too.

Why not in other contexts? Justice Douglas (partially inspired by Christopher Stone) thought of nature in an instrumental fashion. His approach could be applied to protect nature (and/or animals) individually. 

Agencies can assign people or groups to protect the interests of NHAs. So can legislatures. We can debate about how to select such people. Or how they would respect the interests of NHAs. For instance, the book offers a referendum-type process. We can debate it. 

But it is our duty to address the matter overall if we are going to respect the sentient beings as constitutional persons. We should "listen" to our companion animals if we truly respect them.

The principle applies writ large. Our own constitution, to be local, can use some improvement. The baseline was set up in the 18th Century. 

We might be proud that it is still going (strong?), if with some amendments. Still, the 21st Century is on the phone (or whatever), and it is not totally impressed. NHAs are one thing to factor in. 

Merry Christmas

 

Merry  Christmas. Here's a song about the 12 Symbols of Christmas. The "12 Days of Christmas" run from today until January 5. 

ETA: Trump went another way (Nigeria).