Law, Culture, Politics,
An Interview with Tom Campbell, Professor of Law and Economics at Chapman University
“If I could be one percent as effective as Milton Friedman in his role as a professor, I would say that's a much higher calling than being elected to office.”
Tom Campbell is a professor of law and economics at Chapman University where he served as dean from 2011-2016. Between 1989 and 2001, he represented California’s 12th and 15th districts as a Republican Congressman and is a former member of the California State Senate. He holds degrees from The University of Chicago and Harvard Law School, is a former Stanford Law School professor, and former dean of UC Berkeley’s Haas School of Business. His 2004 book, , may be purchased here.
You wrote a piece for the OC Register titled, “The prominence and fragility of stare decisis.” Could you briefly define stare decisis for the reader who might not be familiar?
Yes, stare decisis is the practice of The Supreme Court, the highest Court, to abide by previous decisions of that highest Court, in either statutory or constitutional matters.
Great, in the article, you essentially argue that stare decisis is detrimental to the integrity of the Supreme Court. At one point you even remark that justices who break with precedent that they believe to be wrong should be applauded for it. That struck me as a provocative perspective, I wanted to know how common you would say that view is, with respect to your professional circles and American legal thought more generally?
I don't believe it is widely shared, I believe I am somewhat in a minority with this view. So, I would also convey that the Supreme Court itself has ignored stare decisis over 200 times, and as a result even though my being explicit about the fact that stare decisis should not be followed, the Supreme Court in practice has done just what I've suggested more than 200 times.
You would say that your view is unique, correct, you would say that stare decisis, with respect to your academic colleagues and things like that, is a mostly well-respected principle?
Almost, I don't think I claimed I was unique, I think I’m in the minority.
So in your book, Separation of Powers in Practice, you draw from your own research on the practical decisiveness of stare decisis in historic Supreme Court cases. Here’s a quote,
I simply report my conclusion there that the cases of stare decisis, when it really counts, constitute almost a null set. Stare decisis might not be so much a flawed a doctrine as it is an irrelevant doctrine, due to the paucity of instances when it actually mattered.
I know that was kind of what you were saying just there, can you elaborate on what you mean by that?
I will. I did my own research. Going back to, I think it was 1960, and I tried to find every case where the Supreme Court relied upon stare decisis in its opinion. And I found out that in every case except two, it was not the sole basis for the opinion. In other words, the court was going to decide the way it did anyway—and stare decisis was added as a reason, but I could not say it was the reason. That's important because if it's not the reason, then it doesn't have any effect at all. The court would have ruled the way it did whether or not the previous court had ruled so. I came to the conclusion that if a matter is before the Supreme Court where the present justices believe a previous interpretation was wrong, they will overwhelmingly change the interpretation, and when they say that they are abiding by a previous interpretation, overwhelmingly, they would have anyway, even without stare decisis.
Interesting. So would your argument be along the lines that the real impact of stare decisis is so negligible that the consequence of throwing it out would be relatively minor? And I'll add a follow up to that: is the real value of stare decisis more abstract than quantifiable, in other words, is stare decisis more important as a signal of principle than an actual functioning doctrine that upholds a principle?
You've put that very well, on the first question I answer yes. On the second, no, I would not say stare decisis is important as a statement of principle, I would say we should abandon the concept entirely and not cite it. If it's practically irrelevant, then it's deceptive to rely upon it—it communicates an untruthful thing. If in fact courts will willingly overturn opinions of previous courts, then for the court to say that they respect stare decisis is erroneous. And secondly, the position that it is admirable or desirable in our system of government for the Supreme Court to go against its best judgment because a previous Supreme Court decided a matter differently, is, to me, disappointing and unsatisfactory. So I would rather do away with the doctrine and not see it cited as though it were a principle that was followed.
The Kavanaugh hearings attracted a lot of media attention— you mention it in your op-ed as well— in response, I think more and more people have started to pay attention to the Supreme Court. It seems like there’s increasing alarm about the concentration of power there, especially as the president stacks the court with conservative justices. In your book, you mention, for example, Justice O’Connor’s view that the Supreme Court’s “ability to do its job rested on the popular perception that it acted on principle” If the notion of stare decisis was thrown out entirely at the Supreme Court level, what would you say to assure the public that the court wouldn’t become a de facto policy-maker, or be improperly manipulated by the executive branch to further an agenda?
The court's independence has nothing to do with stare decisis. The court's independence has to do with the character and quality of the individuals who are justices; that they will follow the law and the Constitution as best they understand it. So the additional ability to say that they are following stare decisis is actually misleading, for the reasons I've noted, mainly that, over 200 times the court ignored it when they wanted to ignore it. So what we should do, for our country's sake, is make the very best decision on the merits at the time it's presented. I'll give a very obvious example, it's so obvious you'll accuse me of being unoriginal, but, “separate but equal” was the law interpreted by the Supreme Court until Brown v. Board of Education said that racial segregation was unconstitutional. “Separate but equal” was established law, Plessy v. Ferguson—it had been the law for many many years. You asked about reassuring the public that the court will be independent, stare decisis in that instance stood in the way of the court being independent. The political branches in 1954 were not ready to abolish racial segregation, neither federally nor in the states. The supreme courts did it, and when they did it, it went against stare decisis.
So, that's obviously a case where ignoring stare decisis was satisfactory, looking back, in other words, public opinion would deem that a satisfactory override of stare decisis. But do you think that there's any credence to the concern that partisans might come into the executive branch and weaponize the Supreme Court in a way that could rapidly change the legal landscape of the county, if stare decisis, even as a superficial notion, is completely tossed out?
The doctrine of stare decisis will not prevent that from happening. If a president, was it this president or the other president, chooses to make appointees who are not the best, but who have a political agenda, and if those individuals are confirmed by the Senate, and become members of the Supreme Court, they would not hesitate to overturn an earlier decision because of stare decisis. You've already painted a picture that is distressing, whereby individuals are not going to be doing their constitutional duty and their ethical duty as justices, but rather advancing a political agenda. And if that happens, stare decisis is not going to put a brake on that.
I think it was really interesting watching the Kavanaugh hearings, listening the nominee continually say that they respect precedent, and then hearing from your book and hearing from your op-ed that in practice that is never really occurring, what do you think about the fact that Supreme Court nominees feel obligated to claim that they are steadfast adherents to stare decisis when that's not actually what happens on the bench?
They believe, and they're right, that that will allow them to pass with less scrutiny. If a justice nominee were required to say “how would you decide this case if it had come up to you before” and gave their honest answer, we would all know more, and senators would be able to cast their votes with more knowledge. So stare decisis is used because it allows a candidate, whether nominated by President Barack Obama or President Donald Trump, or any predecessor—but I use those two in particular because I mentioned Justice Sotomayor, Justice Kagan, Justice Gorsuch and Justice Kavanaugh as using this device—to avoid giving an answer to the kind of question I just put—so that's why. If the precedent is favored by a senator, saying you follow stare decisis will prevent that from being an issue to vote against you. If an issue is opposed by a senator, saying that you are relying on stare decisis would mask what the senator might otherwise interpret as your actual beliefs. So it becomes a device for getting confirmed, but masking the true reasoning process of the justice—and I repeat: I'm even-handed hopefully in my observing this, I gave you two appointees of President Obama and two appointees of President Trump who make use of the device. And one might say, well a justice nominee is never going to say "I plan to reverse this case and uphold that one." I understand that. But you can ask a justice nominee to explain her or his reasoning instead of simply saying "well, it's settled." When you say "well, it's settled" you're not giving any insight into any of your reasoning at all.
I think what strikes me is that the hearings were so fraught and politically charged, even with the nominee basically failing to answer or go into detail about his views. Do you think the confirmation process would be almost impossible to go forward if nominees were actually honest about their views—do you think it would be much harder to get nominees through the process?
Yes I do and that's a regret. I think our country has changed. It did not use to be the case. It used to be the case a confirmation hearing dealt with qualifications and did not engage in politicization, as it now has. So I think your point is right. If a justice nominee did not have stare decisis to use as a cover for her or his true reasoning processes, undoubtedly the confirmation process would be even more heated. I greatly fear that if the Senate and the President are of different parties it will be very hard to get a Supreme Court nominee confirmed, with or without stare decisis—that what you and I have seen will be the future, not a departure from the pattern, but become the pattern. And if that's so, you might have years before a vacancy is filled.
Switching gears a little bit, I was intrigued to learn that during your time as a student at The University of Chicago, you studied economics under the mentorship of the late Milton Friedman. Can you tell me more about that, what that was like?
Well, he was a brilliant man, a Nobel Prize-winning economist of course, and with a very deep interest in public policy—that was an unusual combination. Many economists, even brilliant economists, stick to their textbooks and do not participate in public policy so much. Milton would regularly hold an open forum on the campus [laughing], he declared that he was available to answer all questions, and students would come and—you'll see some of those on Youtube if you want to put in his name—those are filmed at the University of Chicago. I was not only his student, I was also president of the Chicago Debating Society, and we invited him to come and give his views on the debate topic that year; It was a wonderful meeting, the debate topic happened to be price controls—whether wage and price controls are good for the economy. He was always cheerful, I never saw him angry, and I think that's such a desirable thing. No debate ever became nasty, he would smile and say "well I politely disagree and here's why." I particularly recommend you take a look at Phil Donahue's interview of Milton Friedman if you haven't already, it deals with social fairness, equity—is capitalism the best system. His interchange with Phil Donahue is charming, polite, and powerful.
To what extent did Friedman impact your economic and political philosophy?
A great deal. He made the case convincingly that markets, when left free, allocate scarce resources in the most efficient manner possible. He drew very useful distinction between social safety nets and interrupting markets. So, every compassionate person cares for those without resources, who are poor, who are physically incapacitated in some way—and they should be the subject of our help. But Milton distinguished interfering with the market to do that and using a progressive income tax structure to do that. He gave me the basis that I later used in much of my political career. Hopefully, somebody neutral might say that I showed compassion for those in need, but was skeptical of government replacing the market.
You could apply that, for instance, to national health care: how do you handle those with pre-existing conditions? You can take care of those both with a program, direct assistance, or you can change the insurance market and say no insurance company can deny anyone with a preexisting condition. Either of those two approaches can solve the problem. Friedman's approach would very much favor the former so that you would allow individuals then to choose the insurance policy that fit them best, but you would not ignore those who could not get an insurance policy under the current market conditions. So that's as current as today isn't it? We're having this debate about pre-existing conditions—tomorrow's election will in large part be influenced by that. And that's something I learned directly from Milton Friedman.
I've become a greater fan of Milton Friedman throughout my life and education—what I've gathered from learning more about him is that he just seemed like he was a very accessible academic, he kind of made economics tangible to average people—explaining conservative economic philosophy to broad audiences. Do you think that there's someone out there, a voice like Milton's out there today? And if there isn't, do you think we need one?
I'm delighted to know you were positively influenced as well, I don't think there's anyone comparable to him today. There are some very fine economists, and they continue the tradition of free market as opposed to government control. But no, I can't give you a name of anybody as good as he—and, without being impolite, the kind of folks I see regularly on television, on cable TV in particular, espousing this point of view, are seldom as informed, or as charming, or as brilliant. And those on cable TV who are criticizing this point of view are subject to an equal amount of my criticism, they do not seem to invest time to understand the benefits of free market capitalism. One of the most distressing things to me is the statistic that such a high percentage of millennials tell pollsters that they favor socialism over capitalism. Maybe, if Milton Friedman were still alive and participating as he always did, that would not have been the case.
So, speaking of your political philosophy, The Orange County Register just published another piece you wrote titled, “How California’s independents can break party rule.” In the article, you encourage California Republicans to vote for qualified independent candidates rather than Republican candidates if they want a shot at breaking the Democratic control of the state. After a long career in Republican politics, I'm aware you recently changed your party affiliation to independent—you've also been pretty critical of President Trump. Would you say your decision to change your party affiliation was based on the strategic benefits of running independent in California that you discuss in your article, or was it a decision based more on personal ideological differences with the GOP today?
It was something else. It was my very strong disagreement with President Trump's views expressed as a candidate. Specifically including his statement on August 9, 2016 that, referring to Hillary Clinton, ‘If she gets to pick her judges, nothing you can do folks… Although the Second Amendment people— maybe there is, I don’t know.” He then paused. And that was a clear invocation of violence—and the Republican party failed to stand up to him. I haven't regretted for a minute my decision to leave the Republican party. It was particularly because of that statement by candidate Donald Trump. And I wrote an op-ed in the San Jose Mercury, which is in my former district, I represented Silicon Valley in Congress (and you can see it if you like, it was in August of 2016 right after now-president Trump had said so.) I said, “Republican Party: under your rules, you have the ability to substitute a candidate after the convention, and you ought to make use of it in this case. This candidate has shown dangerous disrespect for the rule of law and has crossed the line. And what appears to be advocacy of violence.” I also mentioned his comments at various events where he encouraged people to beat up those who were dissenting or making a disturbance, including such lines as (I’m paraphrasing here) as, "I'll pay for your attorney's fees, go toss them out, I’ll pay for your attorney’s fees." Just recently he said he admired the candidate in Montana who body-slammed a reporter, he said “anyone who body-slams is somebody I like” (also a paraphrase). So it was motivated by that. Other candidates, of course, are entitled to their views, I've never found a party or a candidate who was 100% in synchrony with my views, that's to be expected. It wasn't so much that, it was that this candidate had crossed over into the unacceptable area, and the Republican party and its leaders, with very few exceptions, Senator John McCain being one of them, God rest his soul, none of them stood up to him.
During your time in Congress, you were reliably progressive on social issues like gay marriage and abortion. Consequently, you’ve earned the respect of many fiscal conservatives with libertarian leanings. The Libertarian Party’s website even lists you as a potential presidential candidate for the party in 2020. How seriously should we take that, and what should we expect from you in the future?
Well, I have great admiration for the Libertarian Party, and great respect in particular for Judge Jim Gray, who was their candidate for vice president in 2012. I am not running for office, and I do not anticipate running for office ever again. I'm really delighted to be a professor at Chapman, I teach both in the economics department and in the law school, so, what could be better than that? And if I could be one percent as effective as Milton Friedman in his role as a professor, I would say that's a much higher calling than being elected to office.