To be or not to be [brilliant]

Judge Kavanaugh is in line to replace Justice Kennedy on the US Supreme Court. The nomination dance is about to begin in full force. Critics will raise questions about past cases, judicial temperament, law and the judicial role; and supporters will point to his past accomplishments and the judge’s professed belief in judicial restraint [and general support of conservative causes and ideas]. There is one fact upon which critics and supporters will agree: he is brilliant. Not smart; not clever; not bright; not astute.

BRILLIANT (and yes, I pulled out a thesaurus for help).

This post is a confession on my part. I don’t know what “brilliance” means. I’ve met a lot of brilliant people in my life, but the reason I know they are brilliant is because they tell me so, or others tell me in their stead. And as soon I think I have a handle on what it means, one of our esteemed justices retires and I am back to square one. Let me explain.

Judge Kavanaugh is brilliant, which we know because we are told incessantly. What exactly qualifies him for the distinction is less clear. Here’s what we know: he is a graduate of Georgetown Prep, Yale College and Yale Law School; clerked for Judge Kozinski and Justice Kennedy; worked for the Justice Department and the White House; was a partner at Kirkland & Ellis; and served as judge on D.C. Circuit since 2006. He clearly checks all the boxes for a seat on the Court. But that’s not the question. The question is, is he brilliant, and what makes him so? I can’t tell.

For another recent example, consider Justice Gorsuch. Same story: Georgetown prep, Columbia University, Harvard law, and a Marshall Scholarship at Oxford, where he earned a degree in legal philosophy; clerkships with Judge Sentelle and Justices White and Kennedy; DOJ; judge in the 10th Circuit since 2006. And also brilliant.

So here’s what I have: brilliance lies in elite academic achievements and fancy clerkships and jobs post-graduation. That is, Harvard and Yale graduates are brilliant; lawyers at DOJ and the White House are brilliant; circuit court judges are brilliant. Or in fairness, maybe is the confluence of all of these. So a brilliant person is one with Harvard, plus fancy clerkships, plus a DOJ position, plus a judgeship on his resume. That must be it.

But then I go back to the spring and summer of 2009 and the nomination of Justice Sotomayor. To refresh our memories: Sotomayor was born in the Bronx of parents both born in Puerto Rico. She attended Cardinal Spellman High School in the Bronx and was valedictorian of her graduating class; attended Princeton University on a full scholarship and graduated summa cum laude and Phi Beta Kappa; and attended Yale Law School. She was an assistant district attorney in New York County and later became partner in Pavia and Hartcourt. She served as judge in the U.S. District Court for the Southern District of New York from 1992 to 1998; and on the 2nd Circuit Court of Appeals from 1998 to her nomination to the Supreme Court in 2009.

She matches up fairly well on paper with both Gorsuch and Kavanaugh. But pundits and the legal community responded to her nomination very differently. Not only was she not “brilliant” in the traditional sense, she was “not nearly as smart as she seems to think she is.” Her qualifications for the seat were questioned openly. Critics accused President Obama of sacrificing “biography over brain.”

Unsurprisingly, the claims do not stand up to empirical analysis. Justice Sotomayor’s stint as appellate judge matched up with her peers as well as judges widely considered “brilliant.” More importantly, can any of those critics look at her body of work on the Supreme Court and consider her an exemplary justice, or at the very least, on par with all the others? And yet, “brilliance” was not a word used during her nomination, but the opposite was true. Something is amiss.

Here’s what I think is going on. Yes, merit is socially constructed. No question. This means, more crucially, that merit is not an intrinsic individual quality, akin to the way we think of IQs or personality traits, but a mark of status within a community. We cannot begin to think about “brilliance” outside of the communities within which the moniker is used. This is why Judge Sotomayor was never accorded the honor that the label bestows. She was an outsider, even as she achieved honors at Princeton University, honors that, incidentally, neither Gorsuch nor Kavanaugh achieved. But they didn’t need fancy labels for those in the community to know how brilliant they were. Who needs summa cum laude or Phi Beta Kappa to see those things “we” already “know”?

And yes, this also means that people of color, as outsiders, are swimming against the tide.  As Justice Sotomayor herself once put it, “I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of the worlds I inhabit. I am always looking over my shoulder wondering if I measure up.”  Or President Obama, who once told us of his “constant, crippling fear that I didn’t belong somehow, that unless I dodged and hid and pretended to be something I wasn’t I would forever remain an outsider, with the rest of the world, black and white, always standing in judgment,”

An applicant of color is seldom if ever “brilliant,” and becoming so is never easy. Some never do. This is true even for those people of color who dare become Supreme Court justices, or president of the United States.

[cross posted in Race and Democracy]

World Cup refereeing as constitutional interpretation

The World Cup is underway in Russia (smh). For some reason, not a game goes by when I am not reminded of our very own US Supreme Court and how it interprets the Constitution.  This cartoon from the Guardian neatly captures why:

This is constitutional interpretation in a nutshell.  The triumph of the conservative revolution is to make so many people believe this is not so.

Initial thoughts on Gill v. Whitford, the Wisconsin Gerrymandering Case

The US Supreme published its long-awaited decision in the Wisconsin gerrymandering case, Gill v. Whitford.  Gill could have been a landmark decision about American Democracy.  But the Court declined the invitation and sent the case back to the lower court to give plaintiffs the chance "to prove concrete and particularized injuries using evidence . . .  that would tend to demonstrate a burden on their individual votes."  The decision is baffling for many reasons.

First is the Court's use of history.  The opinion takes us back in time, to the 1960's and Baker v. Carr through the 2000's and recent gerrymandering cases that have refused to settle this question.  The Court concludes from this history that a legal standard is neither obvious nor preordained  by the Constitution.  But this history offers a more important lesson.  The one person, one vote standard, while maybe obvious as a matter of public opinion, was not demanded by the Constitution either.  Reynolds v. Sims picked that standard out of a hat, and then enforced it across the nation.  And here's the thing: the response by the public and affected actors alike was nothing short of astounding.  And in the process, the Court's public esteem grew.  There is no reason to suggest that history won't repeat itself.

Second is the Court's puzzling passivity in the face of a problem it has confronted before.  In Gill, the Court remands the case to the lower court due to a lack of standing.  To the Court, the plaintiffs have yet to show that they are individually harmed by the Wisconsin plan.   Standing scholars will no doubt have much to say about this.  But Gill is not new, nor terribly complex.  Again, a dose of history goes a long way.

Before 1961, the Court refused to decide these questions and hid behind the "political question" doctrine and the apparent "lack of judicially manageable standards."  Baker v. Carr changed all that by the mere invocation of equal protection principles.  The Court only needed to posit that "[j]udicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if, on the particular facts, they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." It was that simple.  Mere words did the trick.

A few years later, in Reynolds v. Sims, the Court went further and imposed a standard of population equality.  This meant that all districts must have the same number of people.  But the "intelligent man" on the Court new better.  As Justice Harlan wrote in dissent,

Stripped of aphorisms, the Court's argument boils down to the assertion that appellees' right to vote has been invidiously "debased" or "diluted" by systems of apportionment which entitle them to vote for fewer legislators than other voters, an assertion which is tied to the Equal Protection Clause only by the constitutionally frail tautology that "equal" means "equal."

"One person, one vote" was not required, much less demanded, by the 14th Amendment.  But it soon became the law of the land.  And the country embraced it.

This is important for what it did to the political question doctrine. The doctrine was part and parcel of the Court's passive virtues, ways to relief pressures not of the Court's own making.  But Baker domesticated the doctrine. It brought within law an inquiry that served prudential goals. It demanded reasons for an inquiry designed to operate outside legal doctrine.  But that did not mean that there was no longer a need for the political question doctrine.  The Court must still have a way to rid itself of cases when prudence demanded it without giving the impression of fear and powerlessness.  And it settled on standing doctrine.

The conservatives on the Court want to return to the political question world that Baker left behind, a world where "judicially manageable standards" are unavailing.  They also do not wish to overturn Baker, so they must walk a very thin tightrope.  For proof, take a quick look at Vieth v. Jubelirer, the 2004 Pennsylvania gerrymandering case, to appreciate how hard Justice Scalia had to work to dismiss any and all standards offered by plaintiffs, social scientists, and dissenting justices alike.  The conservative justices do not want any part of this, but they also don't want to concede any judicial ground, lest the "intelligent man on the street" come to think of them as weak or unprincipled.  Hence the need for the passive virtues.  Hence the need, that is, for standing doctrine.

Viewing Gill through this lens raises many questions.  Why does a unanimous opinion invoke standing doctrine and remands the case to the lower court to see if these plaintiffs are sufficiently harmed under standing doctrine?  Why not simply dismiss the case on standing grounds, as Justice Thomas argues?  More generally, why not simply invoke a lack of standards once and for all, rather than continue moving the issue forward?  Why the apparent need for prudence and the passive virtues here? What troubles the conservative justices in this area?

Gerrymandering cases are not different from any others.  So what in the world is going on, Justice Kennedy?  What are you afraid of?

[Cross posted from Race and Democracy]

Caste, the 14th Amendment, and overcoming white supremacy

I just listened to a recent Diane Rehm show, Two Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson.  From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching.  From Professor Wilkerson, I got angry.  Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation.  The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me.  If that's what the 14th Amendment really means, I am fully prepared to give it back.

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.

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?

A Word on the Supreme Court and the Old "Strict Constructionism" Canard

As the U.S. Supreme Court readies itself to decide major cases about Obama's health care law, Arizona's notorious immigration law, and the constitutionality of the Voting Rights Act, a recent editorial in the New York Times focuses needed attention on the connection between the Supreme Court and mainstream politics.  According to the Times:

Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.

This is not a new story, not by any means, but its lessons are worth remembering: just as the law thrusts itself into politics, it is also true that "politics shape the court." 

This is an important reminder, especially in an election year, when conservative candidates will undoubtedly intensify their promises to nominate "strict constructionists."  The hypocrisy is palpable; judicial activism knows no one party or ideology.  But one thing is true: conservatives have skillfully managed to set the terms of the debate.  This means that a decision striking down the VRA, for example, would be seen in conservative quarters as a triumph of our new federalism, not as an activist response to the work of Congress; yet a decision upholding the health care law would similarly be seen as a constitutional failure to uphold federalist principles.  This is clearly nonsense.  

I am not sure what it will take to alter the terms of the debate.  But we should not stop trying. 

The health care litigation comes to the Court . . . whether the Court wants it or not . . .

Last week, the Supreme Court announced its decision to grant certiorari on the various challenges to the health care law. Since then, the coverage has been relentless, and promises to continue (these include calls for recusal and televising of the oral argument, as well as the usual substantive legal commentary on the law itself and what the justices must do -- according to Randy Barnett, for example, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”)

The basic legal argument is as follows, courtesy of Jamal Greene:

The administration has made a Necessary and Proper Clause argument in the Obamacare litigation, but commentators have been too fixated on vegetables to focus on it. The goal of the health insurance mandate is to prevent insurance companies from discriminating against people because of pre-existing health conditions. 

No one in these cases disputes that Congress has the power, again based on its authority over interstate commerce, to forbid this kind of discrimination. But doing no more than making it illegal for insurers to discriminate would not be effective, because making insurers cover high-risk individuals would require them to raise premiums so much that no one could afford to buy insurance. 

Congress could have responded to this challenge by raising everyone’s taxes and using the revenue to provide single-payer government health insurance. Instead, it chose to require that Americans purchase health insurance but gave them the freedom to choose their own private plans. Doing so expands the pool of insured people enough to enable insurance companies to cover high-risk individuals without breaking the bank. 

Anyone can argue that the individual mandate is a bad idea, but no one can argue that it isn’t rationally related, indeed intimately related, to Congress’s legitimate objectives.

Persuasive as this argument appears to be, I just don't think the case hinges on whether the justices will find it similarly persuasive.  This is not really a case about law, the limit-setting function of the justices and the rote application of precedent. This is not a case, in other words, about the power of Congress to force people to eat broccoli.  

Does anybody really believe that the justices will decide this case in accordance to their best reading of the commerce clause power? Or else, that established precedent offers clear answers to the questions presented?

In other words, does anybody truly believe that the Court is about to just call "balls and strikes" and do little else?

Justice Alito and the Art of Doing Justice

When I think about the qualities that inform Justice Alito's jurisprudence, a desire to "do justice" easily ranks at the bottom.  Not so for Adam Liptak, who argues that Alito "is alert to injustice, and he is a careful legal craftsman." I don't have a lot to say about Alito's legal craftsmanship, though I imagine that his colleagues might find the comment offensive, distracting, or even silly, if by it Liptak means to draw a distinction between Alito and his fellow justices (note the headline: "When fairness and the law collide, one jurist is troubled."  One jurist?  Shouldn't all jurists be troubled?). I am far more interested in the first quality.

Are we supposed to believe that Justice Alito is "alert to injustice?" What could that possibly mean?

Liptak's choice of examples is telling.  One is the case of a death row inmate who lost his chance to appeal when his lawyer missed a crucial filing deadline (Maples v. Thomas, discussed here).  Another is the case of a client whose lawyer gave him bad advice, which ultimately subjected him to deportation proceedings (Padilla v. Kentucky).  A third is yet another case where the lawyers missed a deadline (Holland v. Florida).  These cases share an obvious, common thread.  They are cases of procedural justice, cases where clients have a right to an appeal taken away through what Alito terms in the Maples case "a series of very unusual and unfortunate circumstances," or else, as in Padilla, the right is exercised poorly, in that the advice of the lawyer subjects the client to "such a harsh consequence" (i.e., deportation after living in the United States for 40 years).

Without question, these are troubling cases. So what makes them interesting is not that Alito is struggling with a legal standard, but that Scalia and Thomas dissented in the first two (and might yet dissent in Maples, which will be decided later this Term).  Also, what to make of the other six justices who joined the majority opinions in Padilla and Holland?  Are they not struggling with the same sets of issues that trouble Justice Alito?  And if not, why not?

Liptak closes the piece with the well-known exchange between Judge Learned Hand and Justice Holmes, which Judge Hand recalled in his 1958 Holmes Lectures at Harvard.  According to Judge Hand, he told Justice Holmes as Holmes walked off on his way to the Court, "Well, sir, goodbye. Do justice!" To which Holmes famously replied, "That is not my job. My job is to play the game according to the rules."  Liptak uses this exchange to illustrate Alito's apparent conundrum; in Liptak's words, "Justice Alito struggles to bridge the gap. He wants to do both."

This is a curious piece on too many levels.  I have already alluded to the notion that singling out Justice Alito in this way is a bit silly.  It is not entirely clear why this is a struggle in Alito's mind but not for the rest of the justices.  But more importantly, why this piece, and why now?  Surely, it cannot be the case that Mr. Liptak is running out of ideas, if the last month is any indication.  This is the beginning of the Court's Term, a time when cases are plentiful and topics abound.  And we are reading about Justice Alito's struggle between "doing justice" and applying the law?  Seriously?

Here's an easy way to show how silly this all is: go back to Liptak's own piece this past Sunday on the latest challenge to racial diversity in college admissions. In order to understand how silly this concept of justice is as applied to Supreme Court justices, take a look at that debate and the role played by "justice" in it.  This is a debate about racial justice; it just so happens that both sides of the debate disagree about what this kind of justice looks like.  And when the five member majority on the Court decides this case, they will apply their very own brand of racial justice, unmoored from constitutional norms as established in 1868.  This will be racial justice understood as personal preferences, no more and no less. You can even call it "living constitutionalism" if it helps.

What to make of Justice Alito and justice, then?  Nothing.  This alleged conflict is only a struggle of Liptak's own making.  This is because Alito is only wanting to have his cake and eat it too.  He wants to be free to do as he wishes within the shallow constraints of his office. 

This is neither new nor peculiar to Justice Alito.

The Supreme Court's Recent Approval Rating

Here's the recent polling data on the Supreme Court's public approval, courtesy of the Washington Post:

Notably, the data shows a five point dip from last year and a fifteen percent dip from two years ago.  To those who study public opinion and the Court, this is not a big worry.  According to James Gibson, for example, “the kind of basic loyalty to the legitimacy of the institution has changed very little.”

He may be right about that, though I have a different question: in light of everything we know about the Court, how in the world does 46% of the public support it at all?

This is a testament to the the mythology of the Court.

Here they come again: the justices and affirmative action

Stop me if you have heard this one before: a student applies to an elite university and is denied admission.  Incidentally, admissions officials concede that they consider many different factors when making decisions, one of which is the race of the applicant.  The student who is denied admission then searches through the many applications only to discover that some Black and Latino applicants with lesser grades and/or test scores are granted admission to said university.  Alas, a federal case is born.

Abigail Fisher is only the latest in a long line of white applicants so aggrieved. It just so happens, however, that the U.S. Supreme Court might finally fall for the ruse once and for all.  Or in the words of Adam Liptak, "college diversity nears its last stand." 

This is ridiculous on too many levels. It is not terribly difficult to parse through the applicant pool and find admitted Black and Latino applicants who scored worse yet got in.  But it is also not terribly difficult to find in-state residents who scored worse than out-of-state residents yet got in, or mountain climbers, or sons and daughters of alumni, or applicants who can throw a football or hit a ball with a stick.  Somehow, we need an argument in order to differentiate the use of race from all these other factors.  But the justices -- or for that matter, critics of affirmative action -- have yet to offer one.

Here is what passes for a good argument nowadays, from anthropologist Peter Wood:

“The part of diversity that matters to me and a lot of academics is the intellectual diversity of the classroom. . . .  The pursuit of a genuine variety of opinions that are well thought through and well grounded is essential. But that has an off-and-on, hit-or-miss connection with ethnic and racial diversity.”

Here is another, from Yale law professor Peter H. Schuck: “The idea of racial and ethnic diversity altering the kind of conversation that goes on in the classroom is so overrated.” 

I happily concede either argument.  But note that similar things could be said about the use of any other factor considered by universities today, from the use of legacy or residency to extra points for doing extracurricular work or having elite athletic credentials.  

The point is this: the critics are make policy arguments, not constitutional ones.  So the issue here is whether the Constitution has anything to say about this question. If the Court's opinions are any indication, it appears that the answer is not as easy as one might think.

Here's what I would love to see in these opinions: a detailed analysis of the history of the 14th Amendment and the reasons why the Reconstruction Congress -- Bingham, Trumbull, and friends -- intended to bar the use of race by the state.  I think this is a tough argument to make, but I suppose it is possible.  Surely, I would expect Justice Thomas to at least pretend that such an argument exists.  Instead, all we get are silly and inane platitudes about the harmful effects of using racial factors.  

Hypocrisy is not becoming, much less by our resident philosopher kings.

Also, whatever happened to the norm of stare decisis?  I would expect the conservative justices to be particularly sensitive to this norm, and the notion that the public has a right to expect that the Court will not change its collective mind as the institution changes membership.  After all, remember the debate during the Kagan nomination about what makes a judge an activist.  The answer from the Republican leadership in the Senate, using the example of Justice Marshall, was that an activist judge is a judge that does not abide by established precedent.  They used the example of the death penalty and how Justice Marshall refused to accept these cases as settled law and instead continued to dissent in case after case. 

Could they really turn around this quickly and overturn Grutter, decided in 2003?

I still think that the case is still up for grabs.  The conventional wisdom is that the five conservative justices on the Court are prepared to take on Grutter.  Yet Justice Kennedy might not be quite so willing. His views on this question may be changing.  His recent concurring opinion in Parents Involved, for example, show a side of Justice Kennedy we had not seen before.  He even went as far as push back on the old conservative trope, Justice Harlan's dissent in Plessy. But to say that Justice Kennedy's views are evolving should not surprise anyone. Such is the lot of the super median.

In the end, he might ultimately save the Court from this embarrassment.

Justices Scalia and Breyer on the Court's Workload

Last Wednesday, Justices Scalia and Breyer made a rare appearance in front of the Senate Judiciary Committee to take questions on the role of judges under the United States Constitution.  The hearing must be watched by anyone who cares about the Court and its decision-making.  It also makes for interesting -- if frustrating -- viewing.

I was preparing for class and trying to watch at the same time -- multi-tasking, I believe it is called -- when the following exchange caught my attention:

The questioning is by Senator Grassley, who asks the justices to comment on Justice Brandeis' comment that "the most important thing that we do is doing nothing." Justice Breyer initially punted the question and pass it to Justice Scalia, who did not do much better.  They both agreed that the best thing to do is, in Justice Scalia's words, to "leave things alone unless there is reason to change it."  

But Justice Breyer had more to say on this issue.  This is how he put it:

"What your question brought to my mind was, there is something in deTocqueville which is really. . . . one of the things he says, which really stuck, is he says, whenever I come to the United States, the first thing that strikes me is the clamor.  What's he thinking of?  Everybody's screaming at each other, is what he meant.  And what he really meant is they're debating. They're talking about things.  They're disagreeing.  And he thinks that's good.  And I do too.  because that's . . . suppose you really have a tough problem sometime, lets imagine you are trying to figure out some bill and it has to do with privacy and it has to do with free expression.  And there're all kinds of tensions right there with the internet and, uh, new methods of communication and Twitter and Facebook and whatever they are and people privacy and you're more familiar with all those than us.  

"How do we decide those in this country?  I think the general word I use is to talk to about that is "bubbling up."  The first thing that happens is that people start to talk.  They talk in newspapers, they talk in classrooms, they talk in articles, they talk in small groups, they talk with policemen, they talk with the firemen, and they talk with civil liberties groups, they talk to everybody under the sun, and they begin to debate, and they get into arguments, eventually it gets to [the Congress,] and you have hearings, and eventually you have to decide, maybe an agency should do it, maybe we should have a statute, maybe we change our minds five times, and eventually things will settle down.  And what I say about my Court?  It's really wonderful if we don't get involved until it settles down.  Because our only job is going to be to decide if what you decide is within the boundaries.  And it's going to be a subject where we will know less about it than those Americans who have gone into it in depth, so be careful of intervening before this big debate, this clamor that Tocqueville is talking about, has a chance to take over, take effect, scream, change, try it on, try it off.  I think that's really the wisdom that underlies this view of, don't decide too much, too fast."

This is very interesting on many levels, but one level stands out above all others: what does this notion of "bubbling up" tells us about the upcoming challenge to the individual mandate?  Could it be honestly said that this debate has "settle[d] down"?

Minutes later, Senator Kohl took up the obvious rejoinder, and what some scholars call the Court's "disappearing" workload. Here's a graphic illustration (courtesy of David Stras):

Scholars spend a great deal of time debating explanations for this sharp drop in the Court's plenary docket.  Is it the the jurisdictional change in 1988, which eliminated much of the Court's remaining mandatory jurisdiction; or is it the change in membership since 1986?  Could it be that the federal courts are now much more homogeneous, which leads to much less conflicts for the court to resolve? Or is it a question of judicial philosophy?  Could the much-derided cert pool, and the clerks "just say no" mentality, be at the root of this issue? 

Little did all these scholars know, all they had to do was ask: it is all about conflicts below and the decline in "breathtakingly important new legislation."  In fact, Justice Scalia goes as far as to call the need for a conflict below "a general rule." (This makes me wonder: is the sign of a conflict below objective proof that the issue has "settle[d] down"?).

According to Justice Scalia, in fact, if his standards in accepting cases have changed at all, "it is only because I am trying to take more [cases], rather than trying to take less."  And according to Justice Breyer, the Court really would like to take more cases: "the attitude in the conference is, there's a split, lets take it.  We have room, we have room to hear more."

This is a remarkable exchange on many levels, though by no means the only exchange worthy of attention.  It also makes me wonder about the utility of these hearings.  Not for one second do I think that the justices are lying, or misleading, or being disingenuous.  To be sure, they are being careful; this is Congress, after all, and there are also cameras in the room.  But more importantly, they are reinforcing a consistent story about the Court and its inner-workings.  This is a story of the Court as objective and apolitical whose only role is to uphold the rule of law.  These hearings, rare as they may be, serve an important purpose in furthering that story.  

Were the public ever to stop believing this story, the Court as we know it today could not possibly survive.  

Should Liberals Fret about Future Supreme Court Rulings?

In a very provocative article in the New York Times Magazine, Emily Bazelon suggested that "[t]he next few years of Supreme Court rulings could be brutal for liberals."  This is because some weighty issues are coming to a Court where conservatives hold a 5-4 edge.  And the issues are certainly volatile, from the constitutionality of the health care law to same sex marriage, affirmative action and illegal immigration.  Fretting appears to be in order.

There is reason to fret, for example, about the state of the federal judiciary.  As Bazelon writes, Republican Presidents since 1981 nominated and confirmed 41 appellate judges under the age of 45, as contrasted to only 10 for the Democrats.  President Bush contributed 10 appellate judges to this list.  president Obama?  Zero.  This is baffling, especially since Obama is a former law professor who seemingly understood that lower court judges "turn the Supreme Court's vague decrees into actual marching orders for the country."  Instead, the President has shied away from big fights, and in so doing has left the federal bench with more than 80 vacancies.  Incidentally, these vacancies are unparalleled in the history of the federal judiciary.  

There is further reason to fret in Bazelon's plea for strict scrutiny for sex discrimination. She writes that the three women justices might be able to find two more votes -- Breyer's, Kennedy's, or maybe Scalia's -- to change the standard for sex discrimination from intermediate scrutiny to strict scrutiny.  On her account, this is important because the government has an easier time justifying such discrimination under intermediate than under strict scrutiny.  This is right, of course, but it is also why I think she has it exactly backwards.  This is not Bazelon's fault, of course; her argument is on the side of reason. This is due to the conservative justices' ahistorical and disingenuous application of strict scrutiny.

Their story is quite simple.  While facing a state racial set-aside program, Justice O'Connor wrote for the Court that she could not tell whether the program was in fact a benign law designed to help its intended beneficiaries, or a law analogous to Jim Crow statutes  of old.  She had no idea.  And so the only way she was able to draw that distinction was by applying strict scrutiny and asking the government to proffer a compelling interest for enacting any such laws.  Needless to say, whatever interests the government proffered fell short.  And the laws were struck down time and again.

Note what this would do for sex discrimination statutes. As matters stand, the government only needs to identify an important interest for treating men and women differently.   Under this standard, Title IX remains a constitutional exercise of congressional power, as does Title VII's prohibition against sex discrimination.  Were the standard ratcheted up to strict scrutiny, it remains to be seen whether the government could justify either of these two laws.  It seems unlikely.  

This is why if given a choice, I'd happily give back strict scrutiny as applied to racial classifications.  I don't think advocates of gender equality want any part of it.

* * * 

Bazelon makes a third point, and by the title of her essay, this is where I thought she'd spend most of her time.  This is the question of what the Court will do with the big cases it will soon face.  On this point, she hedged: on the one hand, she offered Kennedy's opinion in Brown v. Plata, the California prisoner population case where Kennedy wrote that “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”  This ruling signals that Kennedy might be inclined to rule in favor of the health care law.

On the other hand, Kennedy joined the five-member majority that upheld Arizona's laws that crack down on businesses who hire illegal immigrants.  This is a strong signal that Kennedy will vote to uphold the notorious Arizona immigration law that allows the state to stop people and ask for their papers.  Bazelon also cites work by Professor Lee Epstein that suggests that median voters on the Court "line up almost exactly with the president who chose him."  In Kennedy's case, Bazelon points out, that would be President Reagan. Hardly a comforting thought for liberals, "no matter how many times Obama invokes him in speeches."

  

The question of what Kennedy will do in the future presents one of the most interesting questions in constitutional theory and law.  This is why I think Bazelon gave it short shrift.  Undoubtedly, Kennedy is the Court's median justice, and according to Epstein, a super median justice at that.  He holds the future of the Court in his hands. This is key, as the Court is gearing up to face some of the iconic statutes that form part of the Second Reconstruction.  The next few years could indeed be "brutal" for liberals.

When it comes to questions of race, however, Kennedy has given us enough information to think that he will give these questions the considered attention they deserve.  I am thinking here of his concurrence in Parents Involved and his majority opinions in both Ricci and LULAC v. Perry.  I will say much more about this argument in a future post. For the moment, I can say that I do not think he will take that fateful step.

As for the implications of this view: it is clear that the conservative justices are gearing up to examine the constitutionality of the Voting Rights Act and select portions of the Civil Rights Act. This means that one person, properly situated, can single-handedly bring down the Second Reconstruction. This is a remarkable fact of American political life. Justice Kennedy will choose to uphold or strike down these revered civil rights laws on the basis of his idiosyncratic cultural worldviews and his particular understanding of the politico-constitutional domains in question. How in the world do we justify that?

In the end, I think Alexander Bickel had it almost right. The challenge of constitutional theory lies in justifying placing this power not on an unaccountable court but on a single justice.

Keeping track of the health care litigation

The health care litigation season is in full swing.  The latest salvo was fired a few weeks back, in Mead v. Holder.  This is only the latest on what promises to be a be a busy season for health care litigants.  For anyone paying attention, the scorecard now reads 3-2, with federal judges appointed by Democratic presidents upholding the law while judges appointed by Republican presidents striking it down as unconstitutional.  

But it would appear that not all rulings are made alike.  According to the Times, "[e]normous attention has been focused on rulings by two federal district judges who found the new health care reform law unconstitutional. Less attention has been paid to rulings by three judges who upheld the law’s constitutionality." This is fair as far as it goes, but I think it misses the real story of this litigation.  This is really a story about judicial review and the stories we tell ourselves and out students.

We love to tell ourselves that judicial independence is a virtue and a central element of our constitutional tradition.  This is because, the story goes, judges must be insulated from political pressures in order to render rulings that are grounded in the Constitution, rather than abdications to raw politics.  The problem with this story is not only that judges cannot be as insulated as the judicial independence mythology requires, but that the public filters their judicial output through its own partisan biases.  That is to say, not only are judges affected by their own partisan preferences, but so is the public that consumes these judicial opinions.  This is no way to run a constitutional democracy.

Take the health care litigation as a leading example: while Republicans and Libertarians see a central government overreaching into areas it has no business regulating, Democrats point to the constitutional tradition post-1937 and the growth of the regulatory state.  There is very little agreement between the two camps.  That the judges deciding these cases are closely tracking the partisanship of their appointing president does not help matters at all.

The same goes for Citizens United, the looming challenge to the constitutionality of the Voting Rights Act, Bush v. Gore, and just about any case I can think of.  This is what made the recent Snyder case intriguing: the fact that eight of the nine justices agreed that hate speech is a value worth upholding is a big deal.  

The question for the future is whether the public will ever discover that the emperor has no clothes.  Or better yet, whether the public even cares.

A Word on Snyder and the First Amendment

In the aftermath of Snyder v. Phelps, the recent First Amendment decision that protects the right of a fringe church to express its hateful message at a funeral, most commentators agree that the Court got it just right. This is speech, hateful as it may be, and it is protected by the First Amendment. According to Nadine Strossen, for example, "[t]he First Amendment appropriately protects expression that both expresses and provokes strong emotion. Even when expression stirs emotions that are overwhelmingly negative, as in the Snyder case, that cannot justify suppressing it." To Patricia Williams, similarly, "the essence of the First Amendment is not about individual hurt feelings: it is about ensuring public debate."  This is in fact an easy case.

And it may be so.  But something about the case still gnaws at me.  Consider first the text of the Amendment, the one that stands at the heart of the case.  

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment clearly stipulates that the government "shall make no law . . . abridging the freedom of speech." The language seems unequivocal enough, and yet we know that the amendment leaves room for the government to regulate speech.  Few people take an absolutist position on the First Amendment. This is a question of degree.  Enter the Supreme Court and its justices.

The First Amendment is nothing more than an expression of our deeply held commitment to the value of speech.  Like any other text that the Supreme Court is asked to interpret, however, the Amendment does not come with ready-made answers for any and all questions that arise in the real world.  The Amendment is only what we make of it. It is easy to forget this and to get sanctimonious and even holy about the Amendment and our Constitution in general.  In today's "Room for Debate," for example, all of the debates write very abstractly about the Constituion and its limits, as if this is a pre-ordained exercise and the justices are merely reminding us of commitments we made long ago. But this is not so easy, nor is the Amendment -- or any other part of the Constitution -- so straight-forward.

What better example of the limits and complexities of the Amendment than the passage of the Alien and Sedition Act, signed into law by President John Adams in 1798?  Surely, an Act that criminalizes the publication of "false, scandalous, and malicious writing" against the government or its officials must run afoul of the Amendment.  The better question is, how could the founding generation possibly enact such a law? Or how to explain the Smith Act and the trials of Trotskyists, alleged fascists and members of the Communist party in the United States?

The point is not that the Court got it right in Snyder, or in Dennis, or any other case. Rather, the point is that the Constitution is nothing more than a collection of words, bundled together by our shared commitment to living under its rule.  We obey the Constitution because it speaks to us, because we choose to abide by the authority that we have granted it, by the commitments we have made.  More crucially, these are commitments that we have assigned to our justices to uncover and then safeguard. And it is this last move that strikes me as odd.

This is why the commentary on Snyder has a funny edge to it.  Commentator after commentator writes as if the First Amendment requires one thing or another.  But clearly the First Amendment does not require anything.  It is the justices who require anything of us. And as Noah Feldman reminded us a few weeks back, we should not forget that these are not monks in a monastery, "innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience."  These are, instead, human beings with political connections and deeply held views.  We should never lose sight of that fact. For in the end, it is a Constitution they are expounding.

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 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.

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.