The "New and Improved" -- and make no mistake, just as activist -- Iowa Supreme Court

This week, Iowa Republican Governor Terry Branstad appointed three new members to the state Supreme Court.  From among the nine finalists, the governor selected two state judges and a private attorney.  All were white.  All were male. Notably, these justices are filling the seats vacated by the three justices who were not retained by the Iowa electorate after their controversial ruling on gay marriage.  

To my mind, the biggest question raised by these choices is the complete lack of judicial diversity on the Supreme Court, and what that foretells for the future of the state.  The message is also clear: judicial diversity leads to bad, activist rulings, and when that happens, we must go back to our roots.  To our white, male roots.  

Much can be said about the Governor's choices.  But the one thing that caught my eye was the governor's explanation for his choices: “My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers.” 

These words echo the words of former president George W. Bush, who promised to nominate judges who were "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas." This was, is, and will always be a canard.  This is part of the general mythology to which we have grown accustomed.  What conservative judges do, we call strict constructionism, faithful legal interpretation, and respectful of separation of powers.  In a word, we call it restraint.  Liberal judges, on the other had, are leading us straight to the gates of hell.

This is all so silly yet so powerful at the same time.  If you were crafting a constitutional mythology, I don't think you could do it any better than this.  

From Wisconsin to the House, looking for the common good one public servant at a time

The U.S. House of Representatives, under the direction of Speaker Boehner, is looking to slash the deficit one amendment at a time.  Nothing appears to be sacred.  Unless it is.  The usual Repblican fabs are there, from NPR to PBS and Planned Parenthood.  There are also new targets, such as a park in Nancy Pelosi's district.  

Far more interesting is what's not in there.  One of the most curious, and the topic of Gail Collins' column this morning, is the Army's sponsorship of a NASCAR racing team.  In tough economic times, it is a fair question to ask why the Army should be funding a NASCAR team.  Here's the answer, from driver Ryan Newman: "In a 2009 study among fans nationwide, 37% feel more positive about the Army due to its involvement in motorsports."

Make what you want of the sponsorship, the better point lies elsewhere.  When a Democratic representative sought to eliminate the sponsorship, her amendment was defeated soundly, and led a Republican representative to opine, “[t]his amendment is about politics in certain districts for certain groups of people.” 

This is what good, austere government looks like?

But that alone is not what caught my attention this morning.  Hypocrisy lies everywhere and is hardly news anymore.  Within minutes, and in reference to the Wisconsin debate over its budget, here's the lessons of that debate, from James Sherk, a fellow at the Heritage Foundation: "As a result [of the growth of collective bargaining in government] unions can now insist on laws that serve their interests – at the expense of the common good."

This is a remarkable assertion.  Pushed to its logical extreme, it may be said that collective bargaining  is what got us into the economic mess we find ourselves today.  Not bankers, or Wall Street risk-taking, or just plain greed. Unions.  And what will get us out of this recession?  The answer is obvious.  Busting the unions.  

The remarkable thing is not that conservatives say the things they say.  I get that.  The far more remarkable point is that there is somebody at the other end listening and nodding in agreement.  

Can we consider Justice Thomas anything other than a judicial activist?

In yesterday's "Room for Debate," four distinguished contributors discussed whether "Justice Thomas's silence matters." I was reading the four entries fully intending to respond to them as a whole, until one particular passage from Jamal Greene's entry caught my eye.  Here is what he wrote:

He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. He is the court’s most frequent lone dissenter, and to assign an important majority opinion to him is to risk losing your majority because of his uncompromising language.

When you read this, you might be reminded of the conservative critique leveled at Justice Marshall.  We saw it most recently during the Kagan confirmation hearings, when Republican Senators tried to pin the activist label on Kagan simply because she had clerked for Marshall.  The critique is clearly wrong. But that hardly matters.  To the Republicans on the committee, Marshall was a "well-known activist" (Sen. Sessions); "a judicial activist" with a "judicial philosophy that concerns me" (Sen Cornyn); and a judge with a legal view that  "does not comport with the proper role of a judge or judicial method."(Sen. Grassley).  When pressed for evidence of this activism, the Senators can only offer his insistence on dissenting from death penalty cases.  

Anyone who has thought about judicial activism at all will soon find that the concept is often used as a term of opprobrium, to signal substantive disagreement with a judge's positions.  In essence, a judicial activist is a judge who disagrees with us.  That is human nature, I suppose. What does seem clear from the critique of Justice Marshall, however, is that under any available metric, and particularly the metrics used by conservative critics, Justice Thomas no less a judicial activist than Justice Marshall might have been.

Why does any of this matter?  Because Justice Thomas, along with Justice Scalia, are the two model justices for conservatives.  We must understand that this is a canard, part and parcel of the mythology that surrounds the courts.   Labelling Justice Thomas a model justice is part of a political strategy, not a serious argument.

The Latest on Justice Thomas

This is beginning to sound like a daily occurrence: in his financial disclosures, Justice Thomas reports that the Federalist Society reimbursed him for “transportation, meals and accommodations” for four days at a weekend retreat.  This is for an event organized by Charles and David Koch, the billionaire brothers "who are waging a war against Obama."  Last month, however, a spokesman for the Court offers that the Justice had only made a "brief drop-by" at the event, which included a speech.  The advocacy group Common Cause sent a letter to the Court this week asking for "further clarification."

You can take this latest episode one of two ways: either liberal groups are on a witch hunt (a high-tech lynching, perhaps?) against Justice Thomas; or else Justice Thomas is more tone-deaf and irresponsible than a justice deserves to be.  Judicial independence will do that to a guy. 

Biased as I may be, I am inclined to view as cluelessness on the justice's part, perhaps hubris.  He is a supreme court justice.  We are not.  And if he wants to give a speech and then sit in any case he wishes to sit on, that is not your problem.

Here's the real question: how much will be enough?

Did he really say that? Charles Fried on the Health Care Bill

You think you know a guy, until it comes out that you really don't.  Here's Charles Fried, former Reagan administration solicitor general and professor of law at Harvard, on the health care bill: "I'm not sure it's good policy. I'm not sure it's going to make the country any better . . . But I am quite sure the health-care mandate is constitutional."  Professor Fried defended the constitutionality of the law during a Senate hearing a few weeks back.  (His testimony can be found here).

Two quick thoughts: First, I wonder whether those bloggers all bent out if shape about Tribe's and Amar's defense are similarly bent over this one.  I cannot say I have seen it, though I must also say that I have not looked very hard. 

Second, and for all of his careful analysis, note the one factor that Fried ultimately thinks will decide the case.  In his words, he argues that the political climate at the time of the decision will be the "wildcard."  More specifically, "How much of the political bug will these people get bitten by, and how strong will their immunity be?"

How refreshing.  

What happens when a Supreme Court justice fails to comply with the law?

Here's a curious story.  74 members of Congress wrote Justice Thomas a letter asking him to recuse himself from any upcoming health care case because his wife is a self-appointed “ambassador to the Tea Party movement.”  Justice Thomas also failed to report in his financial disclosure forms, as required by law, income that his wife received from the Heritage Foundation.  We are talking a big chunk of change, around $680,000.

At first glance, one is inclined to catalogue this under similar attacks from liberal quarters at Justice Thomas.  But this letter has a different quality to it.  How could a federal judge forget to comply with federal law in this way? 

So I wonder: what are the chances of recusal?  I'd wager between zero next and none.  But the better question is, what happens to a sitting justice when he fails to comply with federal law?  I suspect we already know the answer: probably nothing. But the better question is why.  Is it because judicial independence demands it?  Or is it because we understand the justices for what they are, human beings with political connections, and this is nothing that ought to disturb anybody?  Or is it something else entirely?

On Justice Thomas' silence . . . and a journalist's odd choice

In Sunday’s New York Times – on its front page, no less – we find an article by Adam Liptak about Justice Thomas and his reticent to speak from the bench. Anyone familiar with the Court will not be surprised by this story. In fact, they will be surprised that the story was published by the Times in the first place, and on the front page to boot. 

This is not to say that the story is not interesting in its own right and worth reading. But not for the reasons you might think. 

For one, it may well be the case that Justice Thomas is really not that interesting, or a deep thinker. Why assume that he – or any other justice -- is? Why assume that mere mortals are transformed into philosopher kings simply by virtue of donning a judicial robe? 

Something else entirely caught my eye. Later in the article, Liptak quotes from a piece in the Florida Law Review by a third year law student. Two things about this choice on Liptak’s part raises eyebrows. The first is the fact that he chose to publish a piece from the Florida Law Review, hardly considered a leading review by those who have nothing better to do than to rank these things. The second is that the author is a law student, and not some major eminence in the field of law. It must be the case, then, that whatever this student wrote is simply brilliant, the kind of thing that Liptak could only get from this piece and nowhere else. But that is not quite so. The quote is not that insightful: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . . Litigants could then counter it, or try to do so. It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” 

So why is Liptak quoting from this obscure piece? All that makes sense is that the author is David Karp, described by Liptak as a “veteran journalist.” This might mean – and this is the only way that any of this makes any sense – that Liptak and Karp are friends, acquaintances, or something along those lines. Liptak is essentially doing a friend a favor. For make no mistake, to get quoted in a Times piece is a much bigger deal in the law schools than it deserves to be. Go to a random law school website and tell me what you find: right in the front, law schools love to advertise how their professors are quoted and cited across the globe. I find the practice quite embarrassing, for it is clear that getting cited or quoted is more a reflection of the size and quality of one’s rolodex than of whatever it is one is saying. (If anybody out there ever finds a quote that is not a reflection of one's standing and networks rather than the worth of the quote itself, please pass it along; I have yet to see one).

Justice Thomas is not about to start speaking – he does not appear to have it in him – and the law schools are not about to stop advertising every breath one of their professor takes that is noted in print. 

Who do they think they are kidding?

The Politics of Justice

Noah Feldman’s op-ed in yesterday's New York Times almost nails it right on the head. Here is the opening passage:

WHAT is it about those robes? They are only flimsy bits of wools, enlivened in a few cases by some very European lace at the collar. Yet the moment our Supreme Court justices put them on, a segment of the concerned public imagines that they have become priests consecrated to the sacred order of the Constitution.

Yes, Yes, and more yes. Work your way back, from a Supreme Court justice sitting in chambers to her law school days, and you might not like what you find. The one constant among most of them is their political connections, their vast network of well-placed friends and acquaintances who are willing to do their bidding for them. These people are smart, well spoken, and almost always have unrivaled credentials. But that’s only half the story. Noah Feldman knows this well: in his most recent book, Scorpions, he details the roads taken Hugo Black, Felix Frankfurter, William Douglas and Robert Jackson. All fine justices, without a doubt. All connected to the right people. 

This is why Feldman’s opening passage is dead on. What is it about the justices that lead us to believe that they will magically shed their former lives upon ascending to the highest court? What is it about donning these robes, in other words, that magically transforms them into apolitical beings? 

Feldman’s argument is quite intriguing, if not troubling all the same. From the founding and to this day, they have all done it. Whether it was Chief Justices Marshall, Hughes or Vinson, Justices Frankfurter, Jackson, or Fortas, the justices have never resembled the “imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.” The early 1970’s saw a retreat on the part of the justices from engaging important public questions, but Feldman argues that this move brought on attendant costs. That is because political isolation leads to decisions divorced from the necessary political practicalities that only prior political contacts will provide. By way of an example, he offers Clinton v. Jones, and the Court’s holding that forcing a sitting president to defend a lawsuit while in office will not take much of the president’s time. 

Feldman’s conclusions are worth considering. For one, it is hypocritical to accuse one justice or another of doing whatever it is the critic derides at that moment in time. They all do it. But more importantly, the justices are human beings, and we should just stop pretending otherwise. More generally, the Constitution is not a Platonic form, and the justices are not philosopher kings on a quest to decipher its meaning. The Constitution is a political document, even a living one, and the justices make do of its text and its myriad compromises as best they see fit. To suggest otherwise is simply is not quite naive, for those who suggest it know better. But it is clearly misleading and even deceptive. Above all else, it is a political strategy. 

How the American public continues to fall for it, however, is the real question. It is also the only question worth asking.

Hollywood turns white

The ten movies nominated for best picture this year are more racially homogeneous than the ten movies nominated in 1940.  You can read the piece for yourself and draw your own conclusions.  The question posed by the piece is really what intrigues me: is this "an anomaly, or an unsettling sign of the times?" The answer is complicated, as the article makes amply clear.  As I read it, I could not help but think of Disney's first black princess, in the "Princess and the Frog."

When it premiered, "Princess and the Frog" was an unqualified artistic success.  The movie received an 84% positive rating from 155 movie critics. It also garnered three Oscar nominations including one for "Best Animated Feature." Released by the powerhouse Disney brand, the movie was bound to be a commercial success, a welcomed addition to the highly successful Disney "princesses" franchise.  

But it was not meant to be.  At first glance, the movie appears successful enough, grossing $104 million at the box office.  But this figure hardly compares to the success of related Disney films, such as "The Lion King," with an adjusted gross of $554 million; "Finding Nemo," with an adjusted gross of $404 million; and "Cars," which grossed an adjusted $293 million.

Even among the princesses franchise, the "Princess and the Frog" does not fare well.  "Snow White and the Seventh Dwarves," grossed an adjusted $782 million; "Sleeping Beauty" grossed an adjusted $521 million; and "Aladdin" gross an estimated $396 million.

(By point of comparison, Disney's latest film, "Tangled," with an 89% rating and featuring a white heroine once again, has already grossed $192 million in 12 weeks) .

Adding to the curious fate of this film, none of the aforementioned films -- or any other Disney film, best I can tell -- can be accessed instantly on netflix.  The one film you can access instantly is "Princess and the Frog."

For the life of me, I cannot explain why this film has received such a negative reception compared to all other Disney films.  Could it possibly be that the race of our heroine made all the difference in the world?  Could it be, that is, that children all around the country were not yet ready for a black princess, even if their parents were ready for a  black president?  

This example shows why race has always been a "marketing challenge" for Hollywood.  

Let the market speak.

Why lawyers get a bad rap

This is the tape that prosecutors have of a conversation between Greg Anderson, Barry Bonds' former trainer, and Steve Hoskins, his business partner:

"But the whole thing is, everything I've been doing at this point, it's all undetectable. See, the stuff that I have, we created it. And you can't buy it anywhere. You can't get it anywhere else. But you can take it the day of and pee. And it comes up with nothing . . . [It's] the same stuff that worked at the Olympics [with Marion Jones]."

Bad, no?  To an untrained mind, it might even be incriminating.  But as Michael McCann explains, the road to convicting Bonds for perjury is hardly clear.   For one, the tape was obtained by Hoskins after secretly recording his conversation with Anderson.  Andderson will not testify in the trial, even under threat of contempt, thus rendering the tape inadmissible hearsay.  To which prosecutors will argue that the tape falls under an exception to the hearsay rule, for statements against interest of a witness who is not available to testify.

Whichever way the court rules on this technical question of law (dare we call it a technicality?), McCann explains how Bonds may still beat the charge against him.  For example, Bonds could question the authenticity of the tape or the remarks themselves; he could argue he had no knowledge of the conversation; and he could also rely on the old chestnut, "what do you mean by 'steroid'?"

I suspect it will be hard for non-lawyers to read this piece by McCann and not come away with a negative impression of lawyers and their tactics.  The court of public opinion appears to have decided this matter long ago, and the piece itself spends no time at all on whether Bonds did or did not commit perjury, or whether he did or did not take steroids.  I also know that trials are not about finding truth but beating presumptions and meeting burdens.  But tell that to Joe Q. Public and Sports Illustrated's readership.  They are McCann's audience, and they care little for the tools of the lawyer trade.

This raises two questions: why is McCann writing this piece, for this audience?  All I can think of is that he is writing it for his editors at Sports Illustrated, in case they need further evidence of his bona fides. And could anybody possibly read this piece and feel anything but contempt for the legal profession?

Is this what a "Profile in Courage" looks like?

A judge in Virginia recently made news for refusing to follow controlling precedent from the state Supreme Court.  The judge, Dean S. Worcester, explained in Virginia v. Cabrera that while lower courts are bound to follow decisions from higher courts, the doctrine of stare decisis has "rare exceptions." This was one such case.  And the firestorm against the judge began.

This is not an easy situation, by any means. It began when defense lawyers in Virginia began to use the writ of coram vobis motions to reopen old convictions. This is a seldom used writ that allows the reopening of cases to point out "any clerical error or error in fact for which a judgment may be reversed or corrected." While the issue was on appeal to the state Supreme Court, the U.S. Supreme Court decided Padilla v. Kentucky, which held that defense lawyers must tell their clients the consequences of pleading guilty in court -- including deportation -- for unrelated cases. The state Supreme Court subsequently concluded that "ineffective assistance of counsel does not constitute an error of fact for the purposes of coram vobis." What, then, is the effect of the Padilla decision in Virginia?

This is where Judge Worcester and public opinion appear to have parted company.  As he wrote in a 13-page order, "[t]he decision of the Virginia Supreme Court leaves Mr. Cabrera without any remedy to correct what the United States Supreme Court has found to be a constitutional violation in the proceedings."  This is no small matter.  The question is thus, how should a conscientious judge reconcile her moral beliefs with her legal rulings, especially when the law as understood by a higher court is in direct tension with the judge's moral universe?

This is not a new question.  To take a noted historical example, how should an anti-slavery judge decide a case under the fugitive slave laws? Consider here the words of Robert Cover, in Justice Accused:

In a static and simplistic model of law, the judge caught between law and morality has only four choices.  He may apply the law against his conscience.  He may apply conscience and be faithless to the law.  He may resign.  Or he may cheat: He may state that the law is not what he believes it to be; and, thus preserve an appearance (to others) of conformity of law and morality.  Once we assume a more realistic model of law and of the judicial process, these four positions become only poles setting limits to a complex field of action and motive.  For in a dynamic model, law is always becoming.  And the judge has a legitimate role in determining what it is that the law will become.

This is another way of saying that the choices facing Judge Worcester were not simple one, nor was the answer he gave.  To deride it without first coming to grips with the difficulties that inhere in the question itself is a disservice both to the rule of law and to judges themselves.  Nothing is ever as simple as critics make it out to be, and Judge Worcester's order is no exception.

What then explains Judge Worcester's order taking on the state Supreme Court?  There would appear to be no political advantage, not in Virginia, and not in the current climate. The strategic account is also problematic, because the judge is clearly swimming against some very strong legal and political currents.  In fact, this case reminds me of the Harold Baer debacle in the mid-90's, when the federal judge overturned himself due to political pressures.  

But this case is still qualitatively different.  Judge Worcester is siding with a political minority in the face of legal and political arguments to the contrary.  And illegal immigrants have few influential friends in legislatures across the country, national or state.  They have no rights that anybody is bound to respect, if the conventional wisdom is to be believed.  Yet Judge Worcester still found it prudent to take their side. In his words, "[i]f this Couurt were to abide by the ruling [of the state Supreme Court], a constitutional violation will stand uncorrected, as he remedy of habeas corpus is not available to the Defendant in this case.  For the reasons stated above, the Court will not allow this to happen."

To which I must ask, is this what a "profile in courage" looks like?

Arizona Comes to Indiana?

This past week, an Indiana Senate Committee approved a bill to crackdown on illegal immigration. The arguments are neither new nor surprising. According to its Senate sponsor, the bill is only attempting to "to put teeth into existing law.” According to Senator Delph, a Republican representing Carmel, Indiana, “[t]oday, we say no more to illegal immigration and we say we really mean it. We want the rule of law restored. Period.” And Bob Schrameyer, from a group called Citizens for Immigration Law Enforcement, told the Senate committee that "Employers have found it far too easy to hire illegal workers, which not only drives down wages to improve their bottom line, but take unfair advantage of a minority group."

In case anybody wondered, this push is about the rule of law and protecting the immigrants themselves from ruthless employers.  Of course.

The means of enforcement are also not new.  Under the new law, police who have "reasonable suspicion" that a person is here illegally while stopping them for another violation -- say, a traffic violation -- must ask for proof that the person is here legally.  The bill also requires that government meetings be conducted only in English and asks the federal government to reimburse the state for costs associated with illegal immigrants.  Illegal immigrants are also barred from receiving some state services, including in-state college  tuition.

I am happy to set aside for the moment the many enforcement problems associated with the law, and its real racial profiling dangers.  For now, I cannot help but wonder: is this the one issue that is holding back the state of Indiana?  Are its schools in order, its economy back on track, its budgets balanced, its citizens happy and content as they look to the future?  In other words, why legal immigration?  Why now?

Sadly, this is not specific to Indiana.  According to MSNBC and Telemundo, at least 15 states across the country are considering similar legislation.  

This is not a new story, by any means.  Nativism is not a new phenomenon.  Pull out your history books and read about the United States in the 1850's, or the late 19th Century, moments when waves of immigration brought out the worst in many.   These have not been proud moments in American history

It is impossible to read and see what is transpiring across so many states and not feel that history has a funny way of repeating itself.

I wonder what Luis Fortuño thinks about this.

Luis Fortuño Goes to Washington?

Apparently, Bob Barr is smitten with Luis Fortuño, Puerto Rico's Republican governor.  According to Barr, what Fortuño has done with the Puerto Rican economy is close to miraculous.

How bad was the situation facing Fortuño in the fall of 2008 even before he took office? Bad enough that Puerto Rico’s credit rating was near “junk bond” level; requiring Fortuño to travel to New York to meet with investment community leaders to urge them not to reduce the island’s rating even further. Puerto Rico’s budget deficit stood at $3.3 billion — at nearly 44% of revenues, worse than any of the 50 states. There was not even enough cash to meet his first payroll. One big reason for this predicament was the sheer size of the Commonwealth’s bureaucracy – nearly 70% of the budget was eaten up by government employee salaries and benefits. 

Puerto Rico’s fiscal turnaround since January 2009 has been nothing short of remarkable. 

The huge budget deficit has been reduced significantly; as a percentage of revenues it has dropped from nearly 44% to less than 11%. Government employment rolls have been reduced dramatically – by 17,000 and continuing to fall. Defined benefit pension plans have been closed out; the number of government agencies has been slashed; and the overall budget has been chopped a full 20%. 

As a direct result of Fortuño’s work, Puerto Rico’s bond rating with Moody’s has leaped from Baa3 to A3; the highest it has been in 35 years. 

Many questions can be raised about this particular story.  For example, what did Fortuño do with the 17,000 government employees out of a job?  Slashing budgets is really not the difficult part, so long as one has the heart for it.  Finding jobs for the displaced workers is the real challenge.

But what I find most intriguing about the story is Barr's suggestion that Fortuño image will rise nationally as a result of his success with the island's economy.  In fact, he argues that Fortuño is not a contender for the Republican nomination in 2012 . . . yet.  He is not alone.  None other than Grover Nordquist suggested as much over a year ago.

I don't know how to feel about this. I suspect it is a long shot, and by a wide margin.  I also presume that such a nomination would split the Latino vote.

And yet, can you even imagine a Latino President coming on the heels of a Black President?  

Unthinkable?

What's law got to do with it?

In recent op-ed, both Akhil Amar and Larry Tribe defended the constitutionality of the health care law nd criticized judge Vinson's recent decision striking it down en toto.  In response, conservative and libertatian critics have have both defended the opinion and fired ad hominen attacks.

Here is a sampling:

According to Tim Sandefur, Amar's op-ed is an "embarrassing" attempt to defend the health care law, "and with all the bluster and cheap rhetoric of someone who has no serious case to make."

Here is Ann Althouse's concluding thought, on the first of three posts on Tribe's op-ed:

Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity. 

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.

This from Joseph Lawler:

My problem is not with Tribe but with the Times. The paper identifies him only as "Laurence H. Tribe, a professor at Harvard Law School, is the author of 'The Invisible Constitution.'" They fail to point out that Tribe worked for the Obama administration at the time when the Obama health care law was passed. Surely that's a conflict of interest worth disclosing.

And from Ilya Shapiro:

Yale law professor Akhil Amar, one of the nation's leading constitutional scholars and a "progressive originalist" of sorts -- he joined with Randy Barnett and others on a brief supporting our view of the Privileges or Immunities Clause in the McDonald case -- had a fiery op-ed about Judge Vinson's decision in the Sunday L.A. Times. More than fiery; I'd say intemperate, uncharacteristically so for the mild-mannered Prof. Amar.

I must confess that I read these two op-eds very differently than these critics did.  This is a clear case of cognitive dissonance.  And there is the big problem with the health care litigation. There are clearly two competing constitutional realities in play, in direct tension with one another.  One reality wishes to defer to Congress on these types of questions, while the other reality worries that the power of Congress will cease to have any limits.

So here is the question: when the issue reaches the Supreme Court, one reality will trump the other.  It has to.  But does anybody seriously believe that the Court will reach its conclusion on the basis of any and all relevant legal sources?  Put differently, why should we expect the Roberts Court to understand and approach this question any differently than professors and commentators at large?

For one, I'd like to believe that the justices will not allow their personal preferences to influence their positions on the case.  In the interest of full disclosure, I must point out that I would also love to own a flying pig.

Not to burst my or anybody else's bubble, but neither one is going to happen.

Turning the Voting Rights Act on its Head?

Florida's Republican governor, Rick Scott, is using the Voting Rights Act's preclearance requirement to delay implementation of a voter-approved initiative that bars partisan gerrymandering.  And voting rights activists are not happy.  According to Laughling McDonald, director of the ACLU's Voting Rights Project in Atlanta., "This is a bizarre situation. It turns the law on its head." This is because the Governor is using a remedial law to stall a reform effort.  Similarly, says Rick Pildes, professor of law at New York University, "This is extraordinary. I've never seen anything like it." . . .  "The governor is essentially using a federal law obligation that binds the states to attempt to avoid enforcing a state law that he apparently would prefer the state had not adopted."

I am not sure I follow.  Is the critique that this is not a covered change? Or is it that the law in question has neither a purpose nor will it have the effect of denying or abridging the right to vote on account of race or color? Or, worse yet, is it that the governor's heart is in the wrong place?

I don't know enough about the political background of this law, or its application, but we know this much: in light of Allen v. Virginia Bd. of Elections, can anybody safely say that any change in matters of election is not covered by the preclearance requirement?  Further, and in light of the denial of preclearance by the Department of Justice in LaRoque, a case where the reform in question was a voter-approved referendum was a change from partisan to non-partisan city council elections, could anybody be sure whether a change, no matter how non-racial it might appear to be, does not run afoul of the preclearance standard?

Or else, do we really want to start looking into the motivations of state actors who submit laws for preclearance?

Brown University to offer conservatism class

Brown University is offering a new course this spring entitled, "Modern Conservatism in America: Conservative Thought in the 20th Century." The course was developed by a student trying to bring ideological balance to elite colleges and universities. In his words, such schools do not offer students views "outside of academia's leftist mainstream."

I get it: elite colleges and universities are full of leftists professors whose only purpose is the indoctrination of their students.  The point is clear enough.  But every time I hear this complaint, two questions pop into my head.

(1) If the professoriat is composed of left-wing academics, where are the bright conservative minds going instead?  Where are they?  Here is a guess: could it be Wall Street and private industry?

(2) If the complaint is correct, and colleges are in fact full of leftist professors and almost no others, it would appear that the students with a complaint would be the leftist students.  After all, shouldn't college be about personal growth and new experiences, about opening one's mind to new ideas, about seeing new things?  If a student comes to college only to validate her value system, she is clearly being cheated.

Note that this last point does not argue against a conservatism course.  What it argues, instead, is against the idea that conservative students are getting a raw deal.  The only way that notion makes any sense is if we think of our colleges and universities as sites for indoctrination, and if we think of our conservative students as weak minded and unable to think for themselves.  

I choose to give them a little more credit than that.

Title IX's Quota Problem, with a Look Back to the ERA

In case you needed any proof, here's an example of the many dilemmas faced by schools trying to comply with Title IX.  When the University of California cut 5 varsity teams last year, it was no longer in compliance with the federal law.  In order to fall into compliance once again, it appears that their only option will be to add 50 spots for women while cutting 80 spots for men.  Fair?  That's not for me to decide.  I don't even think that's the most interesting aspect of this debate.  

Rather, imagine a world where the Equal Rights Amendment had become the law of the land.  Under section 1 of the Amendment, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."  To some, the text is clear enough.  To which I say, be careful what you wish for.  

Passage of the ERA would mean that sex would achieve "strict scrutiny status," the way Justice Brennan had argued within the Court in Craig v. Boren. Brennan lost the fight, of course, and had to settle instead for intermediate scrutiny. But if the Supreme Court's race jurisprudence serves as guide, it cannot be said that passage of the ERA is a good thing.  For, once gender became subject to strict scrutiny, that would essentially mean that men aggrieved by the law would have a claim in federal law to strike down Title IX.  Worse yet, it may be said that Title IX and its rigid quota system sends demeaning messages to all about women, that is, it "reinforces the perception" that women cannot compete with men in the sports world.   

In other words, if the use of race by state actors must be justified by a compelling state interest (a rare justification according to conservatives on the Court), I suspect that justifying the use of gender on similar grounds might prove just as difficult.

So here is what we have: passage of the ERA would mean that gender must be essentially removed as a category, even if those who use it assure us that they are trying to support the cause of gender equality.

In the immortal words of Tweedle Dee and Tweedle Dum: "That's logic"

The Upcoming Health Care Decision and the Legitimacy of the Court

On Sunday's New York Times, Adam Liptak asked, rather provocatively, whether the U.S. Supreme Court would lose legitimacy if it struck down the health care law.  I think the answer could not be clearer.  If the Court's legitimacy did not suffer in the wake of Bush v. Gore, the health care law won't do it either.  So much is clear.

But this is not what makes the health care litigation interesting and worthy of attention.

More on Student-Athletes, Recruiting, and Oversigning

There will come a moment in the history of football as a national pastime when the violence of the game will no longer allow casual fans to enjoy it.  Last night's Super Bowl was quite lax in terms of injuries and ghastly moments, and yet it still had instances that made one turn away.  A knee turned awkwardly; a head shot or a body slammed violently to the turf; broken collarbones or twisted ankles.  This is the reality of the game we call football.  Every game offers myriad chances for injury.

But what we say when it comes to these athletes is that, while they put their bodies on the line, they are compensated handsomely.  They are adults, know the risks inherent to the game, and willingly do what it takes in exchange for financial stability.  

The Politization of the Federal Judiciary

I often wonder what constitutional law professors tell their students about the big cases.  These are the canonical cases every law student discusses at one time or another during her law school years, cases such as Youngstown Steel and Brown v. Board of Education, Marbury v. Madison and Dred Scott, South Carolina v. Katzenbach and McCulloch v. Maryland. I suspect that most professors keep it simple.  They talk about the Constitution and surely they talk about "law" as an abstract proposition.  They also bring up prior cases and spend much time "distinguising" them or "reconciling" them, or else arguing why the present case follows seamlessly from prior, settled law.

I understand why they do this.  They are law school professors, and this is a place where law must matter.  if not law, then what?

But here is the problem.  Constitutional law is not about "law" in the formal sense.  That is, constitutional law is not about the formal meaning of the privileges and immunities clause or the necessary and proper clause.  To be sure, this is what law professors would have you believe.  I am here to tell you that they are either lying to you (and themselves) or else they are so imbued in the law school orthodoxy that they can't tell any better.  And that's too bad.

On the Failure of Black Coaches in Professional Football . . . and its lessons for the rest of us

In their terrific book, Scorecasting, Tobias J. Moskowitz and L. Jon Wertheim argue that coaches in the National Football League are now finding less success than they once did.  And that's a good thing.  This seems counter-intuitive, but only at first glance. As they explain, black coaches had a very hard time finding head coaching jobs over ten years ago, but the black coaches who were hired performed far better than their white counterparts.  The NFL eventually recognized that the bar for black coaches was set much higher, and it also recognized the value of networks and connections in employment decisions.  This is when the league came up with the Rooney Rule.

The End of the Voting Rights Act . . . Again?

In case we haven't had enough excitement lately, here comes the latest from the federal courts: a few days ago, a federal judge held oral arguments on the Shelby County case. This is the latest in a long line of cases challenging the constitutionality of the Voting Rights Act.  Coming on the heels of Citizens United and the upcoming constitutional challenge to the health care law (just yesterday, Virginia's attorney general asked SCOTUS to review the constitutionality of the law on an expedited basis), what are the chances that the Court inserts itself into these policy debates?

The odds cannot be very good.  But the lessons are inimitable.

Further Thoughts on Sotomayor and her Chicago Visit

If you have paid any attention to reports of Justice Sotomayor's visit to Chicago, you might come away with the impression that the big take-away point from her time there was her advice to students to relax more.   For the record, she did say that.  But she said more.  A lot more.

Sotomayor Comes to Chicago

Justice Sotomayor spoke at the University of Chicago recently, and the first thing that caught my eye was the picture chosen by the University of Chicago to go alongside its news release:

According to David Strauss, professor at the law School and moderator for the event, the justice "has had a remarkable and distinguished legal career as a prosecutor, a lawyer in private practice, and a judge at every level of the federal court system."  And yet, the first question that came to mind when seeing this picture was whether the law school would have invited Justice Sotomayor to join its faculty had she been a candidate.  

Further Thoughts on College Recruiting . . . and Admissions

College coaches zig-zag across the country looking for players for their teams.  Players similarly zig-zag across the country looking for their college campus of choice.  And between them we find a number of recruiting services willing to tell you what they think about any particular player.  Scout.  Rivals.  ESPN.  Any guy with a clipboard and an internet connection can start one.

So here is what I find intriguing about all of this: how accurate are these services?  How accurately can these recruiting outfits prognosticate whether a high school player will become a college star or bust?  For all the angst and energy that college fans now spend on national signing day, this would appear to be the only question worth asking.  The answer should not surprise anyone. 

How the NCAA Fails its Athletes

Today is national signing day.  This is the day when high school seniors formally pledge their allegiances to their colleges of choice. It is also the day when these seniors formalize their status as a cog in the much larger and unwieldy college football machine.  This is the moment when these students realize their dreams by becoming the means of production.  The colleges and the NCAA make a lot of money -- this past bowl season, for example, the BCS system produced a record profit of $170 million -- and the players see very little of it.  And they better not even think about selling their uniforms, or useless trophies or championship rings.  Needless to say, that would be illegal -- only the NCAA gets to make money from the sale of jerseys. Also, their parents better not try to get some of that money.  That also would be against NCAA rules.  And who gets to make money from the sale of the images and likenesses of star college athletes?  The NCAA, of course.  The athletes don't get a dime.  They are amateurs, after all.

How convenient. Can you think of a better system of exploitation?

But it gets better. Much better.

Reflections on Judge Vinson's Healthcare opinion

Luis's trenchant post on Judge Vinson's healthcare opinion prompted me to reflect on both the opinion and Luis's observations.

(1) After the passage of the Patient Affordable Care Act, I thought challenges to its constitutionality were frivolous.  That is, I did not think that those challenges would be taken seriously by any federal courts.  Clearly, I was wrong.  Let me be clear, I do not think that the Act is remotely unconstitutional.  But I did not think that there was one federal judge, much less two who would conclude that either the whole Act or parts of it are unconstitutional.  I remain skeptical that a circuit court will find the Act unconstitutional, but I would not wager my house on it.

Nevertheless, the fact that two federal judges have concluded that the Act is unconstitutional means that we are now engaged in a serious, non-frivolous legal debate over the Act's constitutionality.  Moreover, now that two federal judges have gone this far, a third conservative federal judge might be more inclined to follow suit.  Indeed, Judge Vinson seemed to find comfort in Judge Hudson's earlier opinion, which found the Act's individual mandate provision unconstitutional, though unlike Judge Vinson, Judge Hudson did not strike down the whole thing.  As a consequence of the decisions of these two judges finding the individual mandate unconstitutional, it would not surprise me if subsequent district court judges, those inclined to strike down the Act, were bolder and more forceful in their approach.  Finally, one must conclude that the possibility that the Supreme Court would find the Act unconstitutional is not far-fetched.  Institutional considerations might push the center-right Justices on the Court toward restraint.  But again, I would not bet the farm on institutional prudential considerations.

(2)  Luis is clearly right that the legal attacks on the Act are simply the continuation of the policy debate.  Courts are simply the new arena.  Now the fact that these are political attacks does not mean that they are inappropriate or "illegitimate."  That is, courts can be appropriate sites of political constestation (or at the very least, I do not mean to say that they cannot so be.)  But we should recognize that these lawsuits are simply rehashing the policy debate that we were having a few months ago in Congress.

When I read Judge Vinson's opinion, it is clear to me that he is substituting his views of (a) the proper policy to be enacted and (b) the proper role of the federal government for those of the political process.  In my view, the weakest part of Judge Vinson's opinion are pages 45-52 where he is addressing the government's argument that the healthcare market is unique and therefore the Act is good policy.  The government argued that the market is unique because (a) people can't opt-out of the market: there is a strong likelihood that we are going to be sick and will seek healthcare; (b) when people seek healthcare hospitals are required by law to care for them regardless of their ability to pay; (c) the cost of care for the uninsured is passed on to the insured. Judge Vinson, a federal judge, not a healthcare economist or public policy specialist, goes on to question whether the government's is right that the healthcare market is unique.  He reaches for what seems to be far-fetched parade of horribles, for example the government might force us to buy broccoli, to raise doubts about the government's policy prescription.  He concludes by saying that the government's argument that the healthcare market is unique is not "factually convincing."  Let's pause here for one minute, though Judge Vinson is extremely learned and wrote a very thoughtful opinion, should he be the one deciding, on factual grounds, that the healthcare market is not unique?  Why is that policy decision not one made by the the policymakers?

There is more to say about this opinion, but I'll conclude this long post with one last thought. The proper role of the federal government is both a political question and a constitutional one.  Fundamentally, the question is when the constitutional judgment should defer to the political judgment.  Judge Vinson thinks this is a federalism problem.  I'm not sure where the federalism problem is.  If you don't like the fact that the federal government is telling you to buy healthcare insurance, throw the bums out.  Why isn't that the answer?

The Latest Conservative Turn on Gay Marriage

On today's Times we find out that Barbara Bush, daughter of President George W. Bush, will break ranks with her father and come out in in support of gay marriage.  My first reaction is one of astonishment.  This is not because Ms. Bush will in fact come out against her father on this issue, but because such an announcement is in fact worthy of news coverage.  In case any further proof was needed, this coverage would appear to confirm Kevin Phillips' assessment that our democratic experiment has taken a turn towards aristocracy. Why should anybody care what Ms. Bush thinks on anything?  Note that the article does not explain why her views on this particular issue should carry any special weight, nor does it feel that it has to.    Her name speaks for itself.

But then, if you keep reading, something very interesting crops up.

Barbara Bush is not only famous relative to come out in favor of gay marriage and against the public position of her father.  Meghan McCain, daughter of John McCain, also has come out in support of gay marriage, and so has Mary Cheney.  Laura Bush has also spoken out in support of the issue.

According to the Times, gay advocates point to these splits as proof that support for gay marriage is not a question of partisan affiliation or even family values.  That seems right.  But far more interesting to me is the fact that pseudo-public figures, such as relatives of former presidents, can speak out on sensitive issues in ways that their elected relatives cannot.  If political socialization begins in the home, and political identification tracks family lineage, gay rights advocates have a powerful point.  There is something about this issue that makes it different from others as a question of politics.  

This makes me wonder: what is it that makes this issue so important to the conservative political establishment and its base?  For the life of me, I cannot figure it out.