Thursday, August 2, 2018

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]

Tuesday, June 19, 2018

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.

Monday, June 18, 2018

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. WhitfordGill 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]

Wednesday, February 8, 2017

Betsy DeVos and the Fight of our Lives

“The greatest success of the Freedmen’s Bureau,” wrote W. E. B. Du Bois in 1901, “lay in the planting of the free school among Negroes, and the idea of free elementary education among all classes in the South.” This was a key moment in the history of the United States, a time when the country wrestled with the meaning of freedom once slavery formally ended in 1865.  To President Andrew Johnson, freedom was simply the absence of chains, nothing more.  To Republicans in Congress, however, freedom meant much more.  Critically for us today, freedom for the African American community after the Civil War meant to be literate, that is, “the ability to get an education.” 

But the South would not take the success of these Freedmen’s schools lightly.  Again, Dubois:
The opposition to Negro education was bitter in the South, for the South believed an educated Negro to be a dangerous Negro. And the South was not wholly wrong; for education among all kinds of men always has had, and always will have, an element of danger and revolution, of dissatisfaction and discontent. Nevertheless, men strive to know. It was some inkling of this paradox, even in the unquiet days of the Bureau, that allayed an opposition to human training, which still to-day lies smouldering, but not flaming.
Education can be revolutionary, dangerous, yet a central aspect of our freedom.  Hence the status quo opposes it. This is the reason why Freedmen’s Bureau agents were under constant threat of private violence.  This is also why the Klan targeted Freedmen’s schools.   And this is why, during the Civil Rights Movement, Freedom Summer in 1964 featured Freedom Schools, which sought to empower K-12 students to become active and engaged citizens.

This history flashes in front of my eyes as I think about the fight over the nomination of Betsy DeVos for Secretary of Education.  

This might be the fight of our lives.  Much can be said about DeVos’ lack of qualifications for the position she now holds, or the obscene amounts of money she spent in order to further her cause, or how much money she gave members of Congress who then voted on her nomination.  One can also debate the fact that Secretary DeVos “wants to use America’s schools to build ‘God’s Kingdom.’”

In today’s New York Times, Ross Douthat buys none of this.  He cannot understand why so much effort and angst was placed on the DeVos nomination.  After all, he writes, “we have an education secretary who perhaps errs a little too much on the side of choice-as-panacea, overseeing (with limited powers) an American education bureaucracy that pretty obviously errs the other way.”  Striking the right balance between these competing sides is key.  But as an empirical matter, he cannot understand why the nomination deserved the level of political controversy that it received. So how does he make sense of it?  In the end, it wasn’t all that hard.  It was those pesky unions, liberal bastions of old school bureaucratic waste; it was those pesky suburbanites, who love their public schools; and it was an “older culture-war bogeymen:” fears of “a looming theocracy.”

This is nonsense.  The fight over the DeVos nomination is not a new fight.  This is a fight at the heart of the meaning of American citizenship.  This was true in 1865.  This was true in 1964.  This is true today.

When you think about Secretary DeVos, remember DuBois: "men strive to know."  Back in 1901, DuBois could write that "opposition to human training lies smouldering, but not flaming."  The fight over the nomination of Betsy DeVos makes clear that the fight is not only flaming today, but ablaze.

Friday, February 3, 2017

On the Constitutionality of Trump’s Immigration and Refugee Ban

On January 27th, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order bars Syrian refugees from entering the United States indefinitely, and it bars refugees generally for 120 days. The order also blocks citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days. And chaos ensued. Scenes from airports across the country were heart-breaking, as people were kept from reuniting with relatives; protesters galvanized; the acting Attorney General was fired for instructing the Department of Justice not to enforce the order. There are at the moment 13 lawsuits challenging the order, with many more sure to come.

Unsurprisingly, polling on the issue breaks down along party lines. According to a recent Reuters poll, 51 % of Republicans strongly agree with the actions of their president; 53% of Democrats strongly disagreed.

One question looms large above all others: could these bans possibly be constitutional?

It depends on who you ask. The bans are either in violation of the 1st Amendment’s Establishment Clause, or else they fall within the plenary power doctrine, an area of the law that is understood to confer upon the political branches almost unfettered power, free from judicial review. 

Thinking about the question in this way, however, misses the mark. 

What do we mean when we ask whether something is unconstitutional? We generally use the term in an ontological sense, as if the Constitution exists in Platonic form and we can both decipher its meaning and apply to any situation. Thus, to the question whether the President’s actions are constitutional, we turn reflexively to the document and the prior meanings we ascribe to it. The courts need only recognize and apply these prior meanings. 

But this is not the right question. The question is not whether existing law stands in the way of the President’s actions. Rather, the question is whether the federal courts will choose to stand up to the President. If and when they do, the rest is easy. 

I am not encouraged. Think about the political context, and talks of nuclear option for the Senate confirmation process. Think also about the firing of Acting Attorney General Sally Yates, and the President’s response to the court decisions that followed his executive orders. Think about Terror. The War on Terror.

Will the court’s stand up to the President? I don’t know. What I do know is that nothing in the Constitution will help federal judges answer that question.

Thursday, January 19, 2017

Obama frees Oscar López Rivera

Early this week, President Obama commuted the sentence of Oscar López Rivera, a Puerto Rican activist serving a 70-year sentence for a variety of charges, including seditious conspiracy, that is, conspiracy to destroy or overthrow the US government.  Notable figures who supported, and sometimes lobbied very aggressively for, Mr. López Rivera’s pardon include Nobel Peace laureates Mairead Maguire of Northern Ireland, Adolfo Pérez Esquivel of Argentina and Archbishop Desmond Tutu of South Africa; Alejandro García Padilla, governor of Puerto Rico; former US president Jimmy Carter; former Democratic presidential candidate Bernie Sanders; and Lin-Manuel Miranda.  

This is a remarkable list.  But it is not unanimous.  Some commentators are angry.  According to Charles Lane, for example, "this is the Obama pardon you should be mad about."  An article on "The Federalist" argues that the pardon "trades a terrorist for votes."  And a piece in the Breitbart News Network brands López Rivera a "domestic terrorist" and labels his freedom "a cause for leftist Latinos."

The facts surrounding López Rivera's incarceration are fuzzy and very much dependent upon one's point of view.  But the basic sketch is as follows. López Rivera  was born in Puerto Rico in 1943 and moved to Chicago at the age of 14.  He served in Vietnam at the age of 18 and was awarded the Bronze Star.  Upon returning to Chicago, López Rivera became a community organizer and leader for the independence of Puerto Rico.  He eventually joined a group called  Fuerzas Armadas de Liberación Nacional, or FALN.  Ultimately, FALN claimed responsibility for over 120 bombings around the United States between 1974 and 1983, which led to 6 deaths and many more injuries.  But the bombings connected to Mr. López Rivera were those from the Chicago area, and which led to his conviction, did not result in injuries.  This is consistent with López Rivera's assertions that he focused on not endangering people's lives.  As he told the Guardian last year, “For me, human life is sacred. We called it ‘armed propaganda’ – using targets to draw attention to our struggle.”

Whatever you think of Mr. López Rivera and his past, his pardon raises a much larger question for me.  The is a question that I have thought about for a long time, as has every Puerto Rican: What is the status of the island?  There is only one honest answer to this question, irrespective of one's politics: Puerto Rico is a colonial territory of the United States.  I don't really know how else to put it.  Puerto Ricans first became US citizens courtesy of the Jones Act of 1917.  But this is a curious kind of citizenship, because it is not accompanied by political rights and representation.  It can only be described as second-class citizenship.  The island remains at the whim of Congress on issues that do not involve fundamental rights.  US citizens on the island do not have a voting member of Congress, nor are they represented in the Electoral College.  This should be inconceivable under the US Constitution.  The status of Puerto Rico and its citizenry reminds me of what political theorists label "Happy Slaves."  Consent theory and US constitutionalism fail as applied to the people of Puerto Rico.  The status of the island is indefensible.

This is not to argue that Puerto Rico should be a state, or a commonwealth, or an independent nation.  Those are much harder questions.  The question of the status of Puerto Rico as it exists today is an easy question.  Too easy.

Once we understand the status of Puerto Rico for what it is, colonial rule for a modern American audience, the case of López Rivera turns far more complex and his pardon becomes much easier to see and understand.  His case reminds me of Hamilton and the founding generation.  This is a generation that took up arms in defense of their liberty at the hands of what they deemed to be a tyrannical government.  López Rivera is following in their footsteps.  He took arms against colonial rule.  Any seditious conspiracy of which he is accused pales in comparison to what Washington and his generation did, taking arms against the King.  Think also of what the founding generation did in the hot summer of 1787, meeting illegally in Philadelphia in order to "form a more perfect union."  Can we defend the actions of the founding generation while refusing to similarly defend López Rivera?  maybe we can.  But it would not be easy.  

And most commentators are not even trying.

Wednesday, January 18, 2017

Three Lessons of "Hidden Figures"

I just saw a film that sent electric shocks through my body from beginning to end.  The film was "Hidden Figures."  The film tells the story of three remarkable African American women who worked for NASA in the post-war South and in so doing helped the United States reach space.  The film made me laugh, but also cry.  The film inspired me, but also enraged me.  Watching the film, I turned to my 12-year-old boy too often to try to explain the unexplainable.  How do you explain "Freedom Summer" and the "Freedom Rides"?  How do you explain and try to make sense of segregation and the need to walk to a bathroom half a mile away because the bathroom next to your working space is "for whites only," only to return to your desk and find your supervisor in your face because you disappeared for too long?  What do you say when your child asks you, "when did the Klan stop killing people"?

What do you say?

As I watched the film, three over-arching lessons kept racing through my mind.  The first was about the film itself and the history it depicts.  Where did these moments in history go?  Where have they been?  And how do these movies help us recover them?  The film reminds me of the early history of Reconstruction, and particularly the writings of the Dunning School.  This early history understood the freedmen as lazy, unenlightened, and undeserving of the rights that Reconstruction had granted them.  This is no longer the way we remember this period .  How do we explain this change in the historiography of Reconstruction?  This question forces us to ask more general questions: What is history? Who owns it? How do we change it?  How do we make sense of the past?

In thinking about these questions, it is important to remember Eric Foner's warning about revisionist history:
It’s hard for people not versed in history to get the point on why historical interpretation changes. In the general culture “revisionist historian” is a term of abuse. But that is what we do. Revising history is our job. So every historian is a revisionist historian in some sense.
This is what "Hidden Figures" means to me.  History is full of hidden figures.  It is important to reflect on who they are, why they are hidden, and who is hiding them.

The second lesson is about the Constitution.  Our Constitution.  The film offers a subtle lesson about the Constitution and its meaning as lived experience.  One of the three central characters in the film, Mary Jackson, wants to be an engineer yet needs to fulfill some graduate-level courses, which are offered by the University of Virginia through the local high school. The local white high school.  The year was 1961.  Brown v. Board of Education was decided in 1954.  The question whether Ms. Jackson could have taken courses at the local high school should have been settled by Brown, but it was not.  The courtroom scene is important for what it teaches us about our Constitution and the scope of our rights.  Ms. Jackson goes to court to enforce Brown, yet the judge reminds her that this is Virginia.  He ultimately allows her to go to school, but only night school.

The lesson is clear.  The Constitution is nothing but words on paper.  By itself, the Constitution means nothing, but it can mean everything.  The Constitution, those words on paper, are whatever we want them to be.  If you need an explicit example, look no further than the history of the Fifteenth Amendment.  The freedmen came to the polls in large part through the Reconstruction Act of 1867, which forced the former confederate states to allow Blacks to vote and take office as a pre-condition of rejoining the Union.  The Fifteenth Amendment nationalized what the Reconstruction Act had imposed on the South three years earlier.  This is the climax of Black political participation in the 19th Century.  Then, like a slow burn, Black voter turnout began to dwindle.  By the turn of the century, the Fifteenth Amendment had come to mean nothing.  It was a dead letter.  In some parts of the country, Black political participation had decreased by large percentages, in some places by 100%.

This is a remarkable development.  How does it make sense for Dr. King to ask for the ballot in 1957 in a world where the 15th Amendment is the law of the land?  This takes us back to the earlier question: what is the Constitution?  The Constitution is whatever we decide that it is, understood through the sweat and tears of political struggle.  Put a different way: constitutional rights are not given to us.  They never have been and never will be.  In the brave new post-2016 election world, this is a crucial lesson.  The upcoming women's march on Washington is a fitting start.  But it is only a start.

The third lesson is about talent.  And merit.  And the promise of equality.  The women in the film were clearly talented and met whatever definition of merit one wishes to adopt.  And yet, as we raced the Soviets to the moon, we cast them aside.  Racism is really that powerful.  How do we overcome it?  How do we overcome and move past years of oppression and discrimination? That is the question of our time.  But this is not a new question.  One popular conservative answer is that only our stubborn refusal to see and use racial categories will help us to overcome race and racism.  I wish I could believe that.  This is not to say that we will not get there.  It is to say, however, that we have been trying to overcome racism for generations.

Katherine Johnson, the woman at the center of the movie, did get the Presidential Medal of Freedom in 2015.

By our first Black president.