Who speaks for the poor?

This election season was disappointing, to put it mildly.  Infuriating, even.  But not for the obvious reasons.  The election of Donald Trump did not infuriate me or disappoint me as much as it embarrassed me, for what I take to be obvious reasons.  The presidency always stood for something much bigger than all of us.  That is no longer true.  This is not what I want to write about today, however.

The 2016 election cycle took me back to my law school days, a time when I first came upon the Rodriguez case.  This is San Antonio Independent School District v. Rodriguez, decided in 1973.  The case challenged a Texas funding scheme for its public schools that both set a minimum funding threshold for every school in the state but also relied on local property taxes for supplemental revenue.  This reliance on property taxes led to vast and obvious inequalities among schools, since richer schools had a much more robust property tax base than poorer schools.  This was obvious to anyone who cared to pay attention.  Thus the question that reached the Supreme Court in 1972: does this obvious and severe funding inequality violate the equal protection clause, that is, the principle that all persons must be treated equally?  Put a different way: could such severe funding inequality possibly conform with the constitutional norm of equality?

This was not a crazy question, nor was it a question with an obvious answer, not in 1973 and not today.  Reasonable minds can disagree.  The three-judge panel held that the funding scheme violated the Constitution, both because wealth was a suspect class and education was a fundamental right.  This meant that the state must provide a compelling reason for its funding scheme but it could not do so.  The panel struck down the plan yet gave the state ample time to come up with a new funding scheme.  The US Supreme Court disagreed, in a 5-4 decision authored by Justice Lewis Powell, and upheld the Texas scheme. 

I remember reading the case and trying to make sense of it.  It was easy enough to make sense of the case as a legal issue.  Once the Court decided the threshold questions -- whether wealth was a suspect class or education a fundamental right -- the rest of the opinion followed as a matter of course.  There was nothing there.  But that was precisely the point.  Why in the world was wealth not a suspect class or education a fundamental right?  On the wealth issue: how could the state pick winners and losers from the moment a child steps on public school grounds?  How could such stark inequalities in funding meet constitutional norms?  On the education issue: whatever happened to Brown and its language about the importance of public education in modern society?  This was another way of asking, whatever happened to the Warren Court?

And that was the point.  The Nixon election in '68 had brought about the expected change in the Court's composition.  This is what follows when a president nominates 4 new justices in the span of four years.  This is another way of saying that elections matter.  As others have written, this is the most direct way to affect constitutional change outside the amendment process.  Nixon did that.  Faced with a chance to extend Brown to its logical resting place, or to continue the trend begun by the Warren Court to recognize wealth as a suspicious category, the Burger Court chose neither.  And poor children, whom in the Rodriguez case were mostly children of color, lost again.  No surprise there.

The Rodriguez case offers two lessons worth remembering.  The first is implied in the prior passage: judicial nominations matter and the worldviews of those who take to the bench.  Too often, we speak of courts as a faceless monolith, but doing so serves to hide the real faces and ideologies of those who make some of the most important decisions in our society.  Take Rodriguez, for example.  Earlier, I referenced the lower court panel, which sided with the plaintiffs.  What I did not say was that two of the members of that panel were nominated by President Johnson, and the third was nominated by President Kennedy.  And that matters.  These three judges read the same record facing the Supreme Court yet interpreted it differently.  Where the lower court saw the stark inequalities in the state scheme and demanded a compelling state interest in accordance with recent Warren Court cases, the Supreme Court saw the same facts and could not find "any evidence that the financing system discriminates against any definable category of 'poor' people" and concluded that "the Texas system does not operate to the peculiar disadvantage of any suspect class."  Importantly, Rodriguez was a 5-4 decision.  The Supreme Court was itself closely divided on these questions.

The question was obvious to me then, and it is obvious to me today.  I agree with the lower court in Rodriguez that the Texas scheme violates the equal protection clause.  The poor are a suspect class and education is a fundamental right.  Maybe this makes me an activist, or a liberal, or a believer in a living constitution. If so, I find myself in good company.  This is Heller, the Second Amendment case.  This is Citizens United, the campaign finance case.  This is any race case decided by the Rehnquist or Roberts Court.  So there is really no need for sanctimony.

As for the bigger question, and the second lesson in Rodriguez: who speaks for the poor?  We are asked to believe that the Republican Party, and its plutocratic flag-bearer, speak for the poor.  We are asked to believe that the party of Trump speaks for the poor.  We are asked to believe that the same man who paid no taxes, created Trump University and swindled many, and bankrupted myriad properties in order to achieve his own financial gain, speaks for the poor. We are asked to believe that Trump read Michael Harrington and found religion.  

We are asked to believe the unbelievable.  

So this is what we have left.  A few generations ago, the Democratic Party spoke for the poor and we could dream of a Great Society.  Judges appointed by Democratic presidents sought to understand the Constitution thusly, but Republican judges thwarted that effort.  Yet the Republican nominee rode that very issue all the way to the White House.  

It is hard not to be disappointed, and infuriated. 

And the question remains: who, then, speaks for the poor?

Nobody.

What does it mean to look "presidential" (or "professorial," or "decanal," or...)?

One of the big stories of the 2016 presidential election is whether Donald Trump looks and acts presidential. This is no idle conversation.  What voters want to know is whether Trump can act like a president is supposed to act, do the things a president is supposed to do, look like a president is supposed to look.  Note that the bar for candidate Trump is very low.  Reading from a teleprompter will do.  Or not behaving like a sixth grade bully.  Note also that the point is not whether he is or can be presidential.  The point is whether he can pass for one.

Think first about what that means.  And think next about who benefits and who does not when we think about candidates, and jobs, and life, in that way.

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

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

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

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

I could go on.

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

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

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

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.