Monday, July 25, 2016

What's happened to us (or, what explains the allure of a Donald Trump candidacy)?

The candidacy of Donald Trump takes me back to law school.  I will never forget the day we discussed Shaw v. Reno -- the North Carolina racial gerrymandering case -- and the professor called on the guy in the back.  The guy in the back had not done the reading.  And upon every question, his answer was the same: "I don't know."  But there was something about the way the guy in the back answered the questions.  He must have seemed convincing enough.  And the case must have been confusing enough.  The professor liked those answers just fine.  

I bet the guy in the back must be a successful litigator somewhere.

This is the way I think about the Trump candidacy.  How could any of this happen? I don't know.  How could a person with no political experience get this far?  I don't know.  How could a person with such a checkered past get this far?  I don't know.  How could a person with as many bankruptcies and divorces speak for the "moral majority"?  I don't know.  How could a person recently labeled a racist by an influential columnist get this far?  I don't know. 

I could go on.

These are the questions that journalists and political scientists are now asking.  They are interesting questions.  As I think about the Trump candidacy, however, my mind goes back to the founding of the United States and the many fears and concerns that occupied the minds of the founding generation.  They feared precisely this, populism and what might amount to mob rule.  They feared direct democracy.  They feared the union of citizens "actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  This is where checks and balances came in, and federalism, and separation of powers, and the Senate, and the Electoral College.  You can add to this list the rise of the party system and its disciplining influence on the impulses and passions of the masses.  

You can read many accounts of what has happened to the Republican party to get us to where we are today. I am more interested in a separate question: isn't Trump's the very candidacy that our constitutional structure is designed to avoid?  It is tempting to go back through time and compare the 2016 election cycle  with prior cycles (1964 is a popular example, and the Goldwater candidacy).  But I agree with those who argue that Trump is sui generis. His candidacy is unique.  And it raises the question:  What has happened to us?  Is this who "We the People" are, at out core?  Is the Trump candidacy a reflection of our basest instincts?  

Unlike the guy in the back, we know the answers to these questions.  

Tuesday, July 19, 2016

What the reaction to Justice Ginsburg's words teach us about judicial supremacy and critiques of the Court

In recent days, Justice Ruth Bader Ginsburg offered some very candid remarks about the presumptive Republican nominee Donald Trump.  She noted, quite correctly, that she could not imagine what the country would be with Trump as president.  She called him inconsistent, “a faker,” and egotistical.  She joked that her late husband would have wanted to move to New Zealand if Trump were elected.

Nothing about the substance of these comments should strike us as odd or misconceived.  Yes, Trump is inconsistent.  Yes, he is a “faker.”  And yes, he has an outsized ego.  Further, few of us can imagine what the country would be like under a Trump presidency.  And many of us might consider moving to New Zealand after the election.  But what rankled so many people was the source of these comments.  Justice Ginsburg was out of line, or so the reaction goes.  Her comments were “understandable but injudicious.”  As a Supreme Court Justice, she must not enter political debates, nor may she compromise our perception of justices as constitutional animals who reside outside the world of politics.  Justice Ginsburg caved by the end of last week, and offered a half-hearted apology.

For the life of me, I cannot understand why she would have to do that.

There is something intriguing (and even interesting) about Ginsburg’s comments and the immediate reaction that ensued.  To be sure, we could say that Justice Ginsburg violated no laws or rules of ethics.  We could also say that she is on the side of history and John Stuart Mill: this is not new, as justices have campaigned before, and more speech is always better.  We could even say that she wouldn’t have to recuse herself in a future hypothetical case involving Trump.  We could go even further: Trump is no ordinary candidate; these are not ordinary times; and Ginsburg did a very courageous thing.

All these arguments remain at the margins of a much more important debate.  How did we end up in a place where the Supreme Court can decide presidential elections on purely political grounds, thrust itself into the most pressing questions of our day, take sides in policy debates and issue opinions that need not make any sense whatsoever (I am looking at you, Shelby County v. Holder) and yet we stand back and defend a myth of the justices as apolitical creatures?  In other words, how did we arrive at a place in our constitutional history where the Court can neuter the Voting Rights Act on specious legal grounds, take up continuous challenges to the Affordable Care Act, and  deadlock over President Obama’s immigration directive on ideological grounds, yet suffer no apparent damage, constitutional, political or otherwise?

In this vein, I cannot help but ask, whatever happened to the countermajoritarian critique that so attracted conservatives scholars and pundits in the 1960’s?  The difficulty was not as difficult as it once appeared, is it?

What we need, instead of opprobrium against Justice Ginsburg, is an argument for why this is a Court worth defending.  And no, vacuous rhetoric about the value of judicial independence will not do.

It is much harder than it sounds.

Thursday, July 14, 2016

The Wisdom of Eight


In the recent Zubik v. Burwell, the “Little Sisters” contraceptive mandate case, the U.S. Supreme Court took the unusual step of the sending the lawsuit back to the lower federal courts and instructed them to try to “arrive at an approach going forward that accommodates the petitioners’ religious exercise while at the same time ensuring that women covered by petitioners' health plans “receive full and equal health coverage, including contraceptive coverage.” Reactions to the Court’s order have been mixed, though largely negative. Critics generally complain that the Court must be able to provide definitive and final answers to legal questions. According to these critics, the ability to resolve legal differences and lend clarity to the law is central to the Court’s role. This is something that an 8-member Court is not able to do. More damningly, an 8-member Court is “Not So Much Deadlocked as Diminished. The obvious solution is for the Senate to confirm a ninth justice.
This is puzzling on many fronts. As a question of constitutional history: the Court hasn’t always had an odd number of justices. Under the Judiciary Act of 1789, in fact, the Court would have one chief justice and five associate justices. The Court also had an even number of justices (ten) during the Civil War. This history suggests that a focus on mere numbers misses the larger story. The focus should not be on the need for a new justice to break all ties when the Court is closely divided, but on why there is a need for such a justice at all. In other words, the focus should be on the rise and fall of the norm of consensus and its lessons about the Court, constitutional law, and judicial behavior. What does the need for a tie-breaking justice tell us about the institution, the justices, and constitutional interpretation? These are not idle questions.
As a question of constitutional law: The Court is not the final constitutional arbiter that critics of Zubik wish it to be. This is largely a myth fostered by the legal culture and the Court itself. The justices are keenly aware of the impact of their decisions on the relevant publics and acts accordingly. This is true across the Court's history, from the time of Marbury to Brown and the present day. Think about the last time the Court valiantly took on democratic majorities in the name of constitutional law.
I can't think of many either.
Whether we like it or not, the Supreme Court is generally in line with public moods and trends. This is particularly true for the notable cases that occupy the public’s attention, and about which the justices care deeply. These are the politico-moral issues, which are perceived as having right/wrong answers and thus have the potential to polarize a nation. These are the issues that opinion polls track, the issues that the public follows and understands, the issues about which most of us care deeply, including the justices. These are the classic “litmus test” issues, such as abortion and affirmative action, which Senators are sure to ask about during confirmation hearings, and which the public wants to know about prior to confirmation. These are the issues that define judicial eras. For the issues that matter, then, constitutional meaning is deeply influenced by public opinion. As a result, the Court is only as final as the public wants it to be.
As a question of constitutional theory: think about the amount of ink spilled in the last generation over the proper role of the Court in a democratic society. The debate has been deafening. To date, the critics might have the upper hand. It is difficult to reconcile judicial review with democratic theory. This is why the end of this Term offers a simple yet brilliant answer to Bickel’s famed difficulty: a diminished Court. And yet, critics of Zubik take the opposite view, and wish for a muscular and aggressive Court to take on existing majorities. What lies behind these arguments? Is constitutional theory no more than a question of whose ox is being gored?






Thursday, December 11, 2014

What do Affirmative Action and the Recent College Football Playoff Selection Have in Common?

Three days ago, the college football selection committee finalized its final four choices to take part in the first annual playoff to determine the sports national champion.  The University of Oregon and and the University of Alabama were certain to make it, but the other two choices were a bit more controversial.  Critics of Florida State University argued that, though undefeated, FSU played a soft schedule and escaped from defeat myriad times this season.  The fourth choice, Ohio State University, was even more surprising.  Never in the time I have watched college football do I remember a time when a team jumps those above it in any type of ranking, whether traditional polls or BCS rankings, after all the relevant teams win their final games.  Ohio State destroyed Wisconsin, to be sure, but Baylor and TCU similarly won their games.  And yet Ohio State made it into the playoffs.  And the debates began.

I watched these developments with great amusement.  I wondered whether anybody else could see the connection between this so very public debate and the use of race in employment, college admissions, and elsewhere.

The similarities are astounding. And it makes clear that the affirmative action debate should be more like the college football selection process.  But there is no chance of that.  When it comes to race, reason and judgment leave us, and stupid sets in.

Sunday, November 2, 2014

The Road from Texas to the End of the Second Reconstruction through the FHA

On October 2, the Court granted cert on a deceptively simple question: whether disparate impact claims are cognizable under the Fair Housing Act.  The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  This is the Court's third attempt since 2012 to answer this question, having granted cert in two prior cases, only to see the parties settle their disputes before the Court could answer it.  The most recent case, Twp. Of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., was dismissed on November 15, 2013.  Eleven months later, the Court is ready to try again.

One need not be terribly cynical to wonder why the Court is so insistent.  

I smell a rat.

Friday, October 17, 2014

A thought on Public Opinion, Marriage Equality and the Court

A few days ago, a student referred me to the following graph:


The graph raises two questions for me.  The first and most glaring question is the gap between the red lines, between public opinion on interracial marriage and the percentage of people who lived in states that allowed the practice.  To be sure, this explains Naim v. Naim and the Court's refusal to strike down anti-miscegenation laws as discordant with Brown and equal protection. But what it does not explain is the Court's decision in Loving, which struck down these laws in the 16 states that still had laws in the books against interracial marriage.  It seems the case cannot be explained by pointing to public opinion in 1967.  It also cannot be explained as a time when the Court rounded up a few remaining outliers.

Could the case be explained by invoking morality and constitutional principles?  If not, what is left?

The second question focuses on the lag between opinion on marriage equality the number of states approving the practice.  That the blue lines are about to meet sometime soon tells us something important about the rapidity with which the marriage equality debate has moved in the last few years.  To me, the question is: what accounts for that change?  Can we explain it simply by pointing to social movement theory?

This leads me to a third question, about which I will have much more to say in a future post: why did the Court hesitate last week and decide against entering the marriage equality debate?  To enter the debate would be to side with a majority of the American public.  It is also true that a majority of the population now live in states that issue marriage licenses to same-sex couples.  The writing is clearly on the wall.  So why wait?  How strong must public opinion be on this question?  How many outliers must remain?

Part of the answer must be that we misunderstand what the Court is, what it does, and what it can do.  We have a romantic view, fostered by the media and taught in many law schools, of the Court as a countermajoritarian hero.  This is not an accurate view of the Court and its work. The Court is far from a fearless defender of the rights of minorities.  In fact, the Court seldom leads public opinion but follows it.  Rather than looking at the Court's hesitation from last week and asking why it chose not to decide, the better question is: how much more will it take for the Court to get in the marriage equality debate?

Saturday, October 11, 2014

The Court on Gay Marriage

Last week, the U.S. Supreme Court declined to hear appeals from five states that sought to ban gay marriage.  The Court also declined to explain why.  This led supporters of gay marriage to hail the Court's non-action.  But not everyone agreed that this was a good thing.

Critics made the obvious arguments.  According to Professor John C. Eastman, it was “beyond preposterous” for federal courts to define marriage.  This was a question that must be left to the political process.  But what would he make of the Court's view, expressed in 1967, that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men"? Or the recognition that "[m]arriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."  The case was Loving v. Virginia.  

I also wonder what he might say about the Supreme Court short-circuiting the political process in Shelby County.  I wonder.

Progressives also were not unanimous in their approval.  One argument in particular caught my attention.  This was from Slate's Dahlia Lithwick:
Regardless of the answers, the court should not be in the business of gingerly surfing public opinion until it’s safe enough to ride that wave into shore. And by waiting (or even talking publicly about thinking about waiting) for the majority of Americans to climb on board before ruling, the court is failing at its most vital task: protecting civil liberties from majorities not inclined to wait. The court hardly becomes more legitimate by suggesting that it will decisively do the right thing once it’s been done. And as of Monday, it’s been done.
 Lithwick is asking the Court to play the role of countermajoritarian hero. But we must ask, has the Court ever played this role in American history?  This is a game I often play with my students: think of a case when the Court in fact played this role, and let's think about how it was possible.  Brown is often the first answer they think of, and it is often the only one.  They don't often think of Brown II, or Naim v. Naim, or Eisenhower and the Little Rock Nine, or the March on Washington, or Freedom Summer.  rather, they think of Brown in a vacuum.  And that is not only misguided, but it is also a mythology of the Court that we should not foster.

Think of this: could we view the Court inevitable reconsideration of the Second Reconstruction as an instance when the Court will be performing "its most vital task"?  I suspect that Professor Eastman would encourage the Court to do precisely that. And if so, what does that tell us about the Court's role?  Could our perceptions be clouded by nothing as crass as whose ox is being gored?