The Religion of Procedure

Though it may seem at odds with my intense patriotism, I spent the Columbus Day weekend in Paris, but—rest assured—my mind never strays too far from our topic on the Roundtable. On the flight back, I watched a few episodes of the riveting, thrilling, and smart HBO mini-series “Rome.” The show chronicles the transition from Ancient Rome’s republic to Julius Caesar’s dictatorship to his adoptive son’s reign as Augustus Caesar. I have seen the series many times before, but this weekend, one particular scene caught my attention in a new way.

To simplify the several complex plot lines, in the scene, the full Roman Senate sits with Consul Pompey Magnus presiding. The Senate is debating what to do about the renegade Julius Caesar and, in hard-line conservative Cato’s appellation, Caesar’s “illegal war.” Famed orator Cicero has calculated that if he leads his moderates to side with Cato’s anti-Caesarian resolution, Tribune Mark Antony will use his veto to prevent his patron and mentor Caesar from being named a public enemy. When Cicero votes, however, violence breaks out on the Senate floor, but the newly-elected Mark Antony, seemingly unaware of his veto power sits back smirking. Cicero, a procedural savant, calls to Mark Antony over the melee, who belatedly calls in his veto. When the fracas subsides, the presiding magistrate tells Cicero and Pompey that the veto was not counted because Mark Antony did not formally have the floor. Pompey scoffs at this, refusing to let Caesar’s status as a criminal be determined by a mere rule of procedure, to which the magistrate, with renewed energy responds that procedural rules are the most sacred in the republic.

What struck me about this scene was the mixing of religion and law. I subscribe to a view of the First and Fourteenth Amendments similar to that of Professors Akhil Amar and Noah Feldman, which does not require a strict separation of religious thought from local governments. Nevertheless, the notion that procedure could be of paramount religious importance had never before occurred to me—but even if it no longer carries the spiritual element, procedure is still supreme in American law. Indeed, where procedure is deemphasized, so too is the Constitution’s guarantee of “due process.” Thus, when thinkers opine on “The Little Rule Change By House Republicans That Guaranteed A Federal Shutdown,” the very essence of American law is attacked.

Procedural complaints arise often, and from the Right as well as the Left. And when advocates cannot win on the merits, seeking refuge in procedure can be a necessary element of zealous representation. Still, procedural rules are not subservient to substantive rights. Rules of procedure are never “little.” They are a double-edged sword that defends individuals from federal, state, and local governments in addition to fellow citizens. They did not descend from on high, but they are nevertheless foundational to a government of laws, and not men.

The First Monday in October

This October has certainly been unique thus far.  Between the Obamacare exchanges opening, the capture of Anas al-Libi in Libya, and the proposed secession of North Colorado, and of course the one-week-and-counting government shutdown, the United States citizens and their government are defying traditions this month.

Except at 1 First St. NE, Washington D.C.

Roundtable readers are likely aware that yesterday, like every “First Monday in October” since 1917, the nine Supreme Court Justices held their first oral arguments of the October 2013 Term.  Yesterday, they heard oral argument in Chadbourne & Park LLP v. Troice and Madigan v. Levin, and today’s docket was for Burt v. Titlow and McCutcheon v. FEC.  From now on, your Constitutional Law class will become increasingly obsolete.

There are many detailed Supreme Court previews, like USA Today’s, The Heritage Foundation’s, and the Federalist Society’s, our sister organization.  More generally, however, it seems that October Term 2013 won’t feature headline-grabbing decisions like NFIB v. Sebelius, or Hollingsworth v. Perry to the same degree as the past two years.  And we may not see an OT13 Running of the Interns.  But this term is not lacking in momentous Constitutional decisions.  In McCutcheon v. FEC, for example, the Court could obliterate an erstwhile tenet of political speech, that Congress can limit overall donations to political campaigns.  In NLRB v. Canning (argument date not set), the Nine will have to interpret the Recess Appointments Clause (Article II.3), which they have never done before according to a quick Westlaw search.

Despite this potential, the Court has been reluctant to hand down expansive, precedent-setting cases. Take NFIB v. Sebelius, for example, to listen to pundits, President Barack Obama’s signature legislation was upheld in its entirety.  But by carefully counting the votes in the Chief’s opinion and Justice Ruth Bader Ginsburg’s dissent concurrence, only Obamacare’s Individual Mandate was clearly upheld.  The rest of the law, and whether the Commerce Clause has grown, shrunk, or stayed the same remains an open question of law.  Or consider Hollingsworth v. Perry, if your understanding of the case derived from Facebook posts, you might have thought that the Supreme Court had declared same sex marriage legal throughout the nation, but the case was clearly much narrower.  Such incremental Constitutional law may be the hallmark of the Roberts Court, and this Term may be no different.  Indeed, SCOTUSblog reporter Lyle Deniston already discounts the possibility of the McCutcheon case producing a large constitutional holding based on today’s oral argument.  Still, this case could reopen the doors on political speech and allow every citizen to make his case as loudly and effectively as Oprah.

That is… as long as the Court stays open. The Court will eventually run out of money to keep its doors open during this shutdown—in fact, it will run out of money on October 15 when its “rainy day” fund is drained.  No matter what you think of the nine Justices, the Supreme Court, if not the federal judiciary is a cornerstone of democracy and the rule of law.  Whatever the outcome between the Democrats and Republicans on the Hill, let us hope that the Courts aren’t shuttered as well.