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]

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.

A word on Justice Kennedy's "surprising" turn to the left

A few weeks ago, the US Supreme Court upheld the University of Texas' affirmative action plan in Fisher v. Texas.  The big story of the case was Justice Kennedy's apparent switch on questions of race.  How in the world does a justice who refers to the use of race by the state as a "corrosive category," and who argues that “[p]referment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," vote to uphold an affirmative action plan?

This was the leading narrative in the wake of Fisher.  Justice Kennedy's opinion was "stunning," "surprising," even "shocking." But that's not quite right.  

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. 

What’s so hard about televising oral arguments?

The question whether the cameras should be allowed in the Supreme Court is heating up. Most recently, CSPAN asked the justices to allow it to televise the oral argument over the health care law. It is unlikely that the justices will grant the request. In a recent sidebar, Adam Liptak argues that these refusals are based on “paternalism and self-interest.” Tony Mauro similarly argues that the Court's refusal to allow cameras in its courtroom "is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court's view of itself as a unique institution that can and should resist the demands of the information age."

Nancy Marder disagrees and argues instead that the justices have struck the right balance between the openness that the justices have chosen for themselves and their work and the obscurity in which their work must take place.

Liptak and Mauro take this one, and it’s not even close.

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?

Redistricting, Once Again, Comes to Court

We had a census. We had new districting maps. And now, like death and taxes, we have litigation. To date, redistricting-related suits have been filed in 28 states. To Justin Levitt, “[t]he sheer volume of litigation is pretty amazing.” In so doing, these legal challenges are “giving the courts, once again, a major role in drawing districts that could help determine the balance of power in Congress for the next decade.” 

Should anyone be surprised by this? 

The real question in all of this is what role the federal courts should play in this mess. The conventional wisdom ascribes to the courts the role of countermajoritarian saviors, saving the American voter from self-serving, entrenched politicians. Theories and standards abound, and come in all shapes and sizes, for how the courts should handle these questions. But this is very deceptive; easy answers are nowhere to be found. 

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.

The End of the Second Reconstruction

In her Times column from last week, Linda Greenhouse asked "is anyone watching?" This question was in reference to the looming constitutional debate over the constitutionality of the Voting Rights Act.  She argued -- correctly in my view -- that the Court is gearing up to strike down the special provisions of the VRA.  Yet no one seems to be paying attention. Three issues from her essay caught my attention.

The first is the notion that the Court will not be able to escape ruling on the constitutionality of the act this time around.  In the earlier NAMUDNO case, the court offered an idiosyncratic and novel reading of a key provision of the VRA.  In so doing, the Court was then able to dodge the constitutional question.  According to Greenhouse, however, "[t]here appears to be no convenient off-ramp" in the new case.  But this is not quite right.  For one, there appeared to be no such ramp in NAMUDNO and yet the Court was able to create one.    This is in line with how the Court has historically interpreted the statute.  The Court has essentially used the statute as a jumping off point to do whatever it is the court wants to do with the Act.  NAMUDNO was no different in this regard.  

Furthermore, the way the Court dodged the earlier constitutional challenge has a Bickelian flavor to it, in the sense that the Court was simply looking for a prudential way to set the question aside for the future.  This is to say, the real question is why the Court chose to set aside the issue in NAMUDNO, and not the fact that it did.  In the next case, one can easily see the Court invoke the "passive virtues" to set aside the challenge.  The Court will decide this question when it is good and ready, and not a moment before.

The second issue is one how Greenhouse struck at the heart of the debate over the continued vitality and constitutionality of the VRA.  She put the point the following way: 

The new briefs were submitted last week. Where one side sees sufficient progress to render Section 5 obsolete, the other sees continued racial polarization and strategies that, while not physically keeping black voters from the polls as in the past, serve to dilute impact of black and Latino votes. The two sides remain far apart on which facts about voting patterns are relevant and on how those facts should be weighed. The answers to those questions, almost certainly, will come eventually from the Supreme Court.

I think this is exactly right, up until the last sentence.  This is clearly a question about which both sides disagree, and vehemently so.   The question for us is why the Supreme Court is the one institution that should decide such questions.  I don't have a good answer, and neither does greenhouse.  She simply assumes the answer away, as do most of us.  And that is unfortunate. 

The third issue is one that I have been thinking about for quite some time.  Greenhouse hints at it, though this is more than commentators are often willing to do.  The question is whether we are witnessing the beginning of the end for the Second Reconstruction.  Greenhouse raises this question by way of Justice Scalia's concurring opinion in Ricci v. DeStefano, a Title VII employment discrimination case.  Is the entire civil rights edifice now open to constitutional attack?  I have raised this question in the past, and the answer is usually that these statutes now form part of the fabric of our nation and are safe from constitutional challenge.  They are, in a word, super-statutes.  

Needless to say, we are about to find out if this is so.  I am not optimistic.

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

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

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

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

How refreshing.  

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.

The Upcoming Health Care Decision and the Legitimacy of the Court

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

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

The Politization of the Federal Judiciary

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

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

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

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

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

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

Another One Bites the Dust

Earlier today, a federal judge in Pensacola, Florida ruled that the 2010 Patient Protection and Affordable Care Act is unconstitutional. From here on out, we can fill in the rest of the blanks without doing any research whatsoever. Yes, the judge was appointed by a Republican President -- the judge is on senior status, so it must be Reagan -- and no, it is not a coincidence that the suit ended up in Pensacola, Florida -- lots of conservative judges up there -- and yes, the judge ruled that the law exceeds Congress' commerce power. That about covers it.

The response from the Obama administration is not surprising. They don't like the opinion. But far more interesting is the notion that this ruling can actually affect the law going forward.  In the words of an administration official, for example, "You could have governors come out tomorrow and say my state will no longer enforce this law because this judge said the whole things is unconstitutional." But this was true before this judge ruled down in Pensacola, and it is not much different from a governor coming out next week and saying that they will support the law because two judges upheld it months before. This one ruling doesn't change anything. Curiously, the judge did refuse to enjoin the law while the parties appeal the decision, yet suggested that his declaratory judgment is "the functional equivalent of an injunction." Whatever that means.

Also quite interesting, if expected, is the reaction from Republican leaders. They praised the ruling.  Not a word about judicial overreaching, or about activist federal judges causing havoc with the work of our political branches. Not a word. I wonder what Senator Sessions thinks of this one. I can only imagine.

I have four questions.

A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional?  To the untrained eye, this might appear to be a puzzle indeed.  If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices? 

Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional.   In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself.  This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

But clearly this is no mystery. 

Could the Health Care Law be Unconstitutional?

A recent online debate in the New York Times asked whether the recently enacted health care law is unconstitutional. For answers, the editors recruited four law professors and two attorneys in the federal health care lawsuit. Their answers will not surprise you.

Those in support of the law argue that Congress is well within its enumerated powers to tax and spend money for the general welfare, the commerce power, and does not commandeer the states under the 10th Amendment. To Jack Balkin, for example, critics of the law “are really claiming that it is unconstitutional to make Americans pay taxes,” while James Blumstein writes that success on this particular suit would require overturning decades of precedent under the Commerce power. This is something that a self-professed “minimalist” Court should not take lightly.

In contrast, those who argue against the law understand it as a quintessential exercise in police powers and thus outside the powers of Congress to regulate. According to Randy Barnett, for example, the text of the Constitution does not authorize this exercise of power, nor has the Court ever upheld anything like it. To David Rivkin and Lee Casey, counsel in the federal suit, allowing this law to stand would essentially put an end to the notion of limited, unenumerated powers. If Congress can do this, they argue, there is simply no limit to what it can do.

Can you tell what is missing from these four accounts?

These debates never cease to amaze me. To the question, is X law unconstitutional, answers are usually given in the form of legal arguments. In other words, whether the health care law is unconstitutional depends on one’s reading of the 10th Amendment, or the Ninth, or the powers of Congress under Article I. This is right out of an “Alice in Wonderland” world that I don’t think many people recognize as their own. Were the Supreme Court to accept review on this case, does anybody really believe that its decision will be controlled by pre-existing law?

I understand these are lawyers and law professors writing these short responses, and to teach in a law school under the legal method must mean that the law means something and that precedent matters. I get that. But surely there is a difference between day-to-day cases and the cases that rivet a nation. Think here Bush v. Gore; a future challenge to the Voting Rights Act; even Citizens United. Does anybody really believe these cases were or would be decided by existing law, and that the justices’ personal preferences played no role at all?

In fairness, Professor Barnett comes closest to the nub of the case. He concedes that it is a safe bet to assume that five justices will choose not to overturn the law. Yet in the following sentence, he appears to give the game away:

But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?

I agree with Barnett that the justices will not choose to step into this morass. I also agree that the Court is influenced by context and public opinion. This is simply another way of saying that the law will play a secondary role, if any role at all. The rest of it is just window-dressing. No need to bother wasting our time.