Monday, May 23, 2016

The Example of Stephen A. Douglas

Gerard N. Magliocca

While Donald Trump continues to use the bully pulpit as a pulpit to bully, Mitt Romney is getting pressure to enter the race as a third-party candidate.  Conservatives in the "Never Trump" camp are realizing that Romney (despite his flaws) is the only person with the money and connections to mount a serious campaign.  I hope he does.

Consider the example of Stephen A. Douglas.  Douglas was a scoundrel for much of his career.  He defended slavery, and his foolish push for the Kansas-Nebraska Act was in part done to improve his presidential prospects.  In 1860 he won the most votes at the Democratic National Convention, but southerners refused to vote for him and the convention broke up without picking anyone. How did Douglas respond?  By running for President as a Northern Democrat.  He had no hope of winning and essentially handed Lincoln the election by dividing the Democratic vote, but he felt that a southern victory was even worse. Indeed, Douglas felt so strongly about this that he broke with tradition and personally campaigned (often getting heckled in the process). After he lost, he supported Lincoln's policies in the Spring of 1861, but then, sadly, died of a sudden illness.

Sometimes you a duty to run and lose.  Mitt Romney should think about that.  Taking Utah from Donald Trump, which would be a real possibility if Romney runs, might swing the election.

Is Sanders stupid or simply a coward?

Sandy Levinson

As readers of my previous posts are well aware, I am extremely critical of Senator Sanders for his abject refusal even to suggest that anyone defining him/herself as a "political revolutionary" might do what, say, Hamilton Madiaon, and Jay did when they denounced the existing constitutional order (of the Articles of Confederation) as "imbecilic" and suggested its replacement by something they saw as far better.  His notion of a "political revolution" is remarkably undeveloped, to put it mildly.

His unwillingness to engage in any such analysis is especially noticeable given his ever increasing propensity to whine about the particular rules of the Democratic Party--to which his own loyalty is minimal, incidentally--and the ostensible ways they have hindered his candidacy.  As Mark Graber notes in his own excellent post, Sen. Sanders seems to believe that non-Democrats should play a key role in selecting the nominee of the party.  There is something to be said for "open primaries," but there is also surely something to be said against them.  There is a genuine debate to be had about the extent to which parties should be viewed as membership organizations entitled to make their own choices as to whom they wish to represent them as candidates, subject to limitations on, say, racial discrimination.  But Mark is surely correct that there would be something odd if non-Catholics demanded a right to participate in electing the next Pope, and so on.  But, obviously, Sanders is not leading a genuinely serious debate, which might require at least a modicum of disinterestedness.

Sanders, alas, has revealed himself as incapable of leading a serious discussion about truly necessary structural reform in this country.  I genuinely regret this, as I have admired (and contributed to) Senator Sanders and believed that his candidacy was in fact very good for the country.

Even if Sen. Sanders is from Brooklyn, he is behaving exactly like the Vermont Senator he is, inasmuch as he seems almost totally oblivious to the actual number of voters supporting Secretary Clinton as against himself and prefers to treat all states as equal, so that we are asked to treat his triumph in Wyoming as the equal of her win in Ohio.  Only someone unconcerned by the indefensible allocation of voting power in the Senate could possibly believe any such thing.

To answer my own question, I do not believe that the University of Chicago-educated Senator is stupid.  Perhaps, though, it's too easy to denounce him simply as a coward.  Maybe he remains enough of a classic Marxist so that he views political institutions as merely epiphenomenal relative to what's really important, which is class struggle.  But he seems to believe that rules and institutions matter with regard to the Democratic Party.  If that's the case, then why can't he accept the fact that the same is even more true at the national level?

If he in fact refuses to get solidly behind Secretary Clinton and help her defeat the fascist and incompetent Donald Trump, then he should roast in hell.  But, frankly, I will be only somewhat mollified if he does the right thing re Clinton and Trump, given that he still will have blown the opportunity of a lifetime to initiate a long-overdue discussion of the degree to which our present constitutional order, as designed in 1787, is indeed imbecilic and very much in need of examination and change.

Will the US survive?

Sandy Levinson

I presume I have your attention with a suitably over-the-top title.  That being said, imagine the following altogether realistic situation (because it's the one we're in):  The two likely candidates appear to be loathed by most of the opposing party.  As I have made clear, I do not think that an honorable person can support the dangerously fascistic and buffoonish Donald Trump, for the same reason that Alexander Hamilton could not support Aaron Burr for the presidency.  But, as I've indicated, responses to my op-eds have made clear that many Republicans--and I will assume that many of them are appalled by  Donald Trump--feel equally disgusted by Hillary Clinton.  I disagree, but that's beside the point, of course.

One of them presumably has to win.  So the question is this: Will the losers accept the verdict as legitimate, since, by definition, that will place in the White House someone who is regarded by the opposition as unfit for the office?  I certainly would not regard Donald Trump as a legitimate President.  I would hope, for example, that Congress would move to impeach him as quickly as possible, for jaywalking if need be.  That prospect might depend, of course, on whom he picks as VP--and, incidentally, will the Cleveland convention give him carte blanche to pick the VP?  They didn't do that for McCain, who was actually qualified to be president.  He clearly wanted Lieberman, and he was told hell no, so instead he took us down the primrose path by choosing the egregious Sarah Palin.  So assume, for sake of argument, that Trump is forced to pick someone competent.  Why should we allow Donald Trump more than a single day in office, given the amount of mischief he is capable of doing, coupled with his staggering ignorance about almost all issues of pubic policy.  I'm assuming that Republicans would feel much the same way about Hillary Clinton.

But, hey, it can get worse.  If Donald Trump wins a majority of the electoral vote with a clear majority of the popular vote, then those of us who despise him would at last have to explain why we reject the "people's choice."   But assume that he (or that matter Clinton) wins the electoral vote but loses the popular vote.  And, of course, assume that one or more of the close states features the kind of election irregularities we have become used to n our basically third-world election system (where partisan officials are in charge of elections or, if not partisan, then they are often simply in over their head with regard to the knowledge of resources needed to run modern elections).  And, of course, there are also Republicans who are determined to suppress the vote of any and all likely Democratic voters, including racial and ethnic minorities and students.  So imagine that North Carolina turns out to be the decisive state, where thousands of likely Democratic voters have been denied access to the ballot because of the successful attempt by the mad-dog Republicans who now control my home state to maintain their power.  (I never miss a chance to quote what I call John Roche's dictum:  Power corrupts, and the prospect of losing power corrupts absolutely.  That is the modern Republican Party in a nutshell.)

Charles Dunlap wrote a brilliant essay many years ago on the "coming military coup" in 2012, as military officers became more and more disgusted at the degree to which the US itself needed the kind of "nation building" that the military--Dunlap thought unwisely--was increasing being assigned as part of its mission in other countries.   So what should we make of the fact that at present the US military is the only national institution that has the solid confidence of most of the American public?  Congress is held in what many of us would say is justified contempt.  interestingly enough, President Obama now seems to have majority approval, but you may have noticed that he's not running for re-election.  Even the Supreme Court now regularly is approved by only a minority of the population.

Our Founders were scarcely cock-eyed optimists about whether the American republic would necessarily sustain itself.  It took not only good institutional design--and I, of course, think that the institutions designed for 1787 are grievously dysfunctional in 2016--but also suitably virtuous dispositions on the part of both the citizenry and the leadership class.  I have discovered that few seem to share my own faith in the possibility of an American public capable of exercising "reflection and choice" as spelled out in Federalist 1, with regard to a new constitutional convention.  And if that's the case, why should we trust the public to exercise relevant reflection and choice when choosing a president?  And no one can seriously argue that Donald Trump is a Publican leader; I think that Hillary Clinton does qualify, but the very point of this posting is that most Republicans apparently disagree vehemently with that perception.

So, if it the case that wide swaths of the country will refuse to accept the result of the 2016 election as truly legitimate--think in this context, perhaps, of 1860--then might one imagine the rise of some serious secessionist movements within the US?  Why should Pacifica or Cascade remain within a US governed by Donald Trump?  Some might wonder if Dixie would wish to remain in a US governed by Hillary Clinton (especially if the respective candidates manage to carry Congress with them).

All of this, of course, may be hysterical musings on the eve of leaving the country for three weeks, to go first to Portugal, then to England, and finally to Israel.  Portugal appears to be relatively stable these days, at least in comparison with much of the rest of Europe.  But one of the topics to be discussed at a conference in Oxford I'll be attending is the Brexit vote, which threatens to destroy the European project that has been the most beneficial consequences of World War II.  And Israel, I'm afraid, drifts more and more to authoritarian rule in part because they are led by a Prime Minister who is little, if any, better than Donald Trump in his basic contempt for liberal constitutionalism and the pluralism necessary to maintain a decent modern society.  (If you don't believe me, just track down some of the stories about the resignation this past week of the Likud Defense Minister, who is correctly appalled by the prospect of shifts that Netanyahu wishes to make in his governing coalition.)

Is America really an exception to the possibility of decline, including transformation into a decidedly illiberal authoritarianism of the kind that Andrew Sullivan has recent argued threatens us?

As always, I'm allowing comments, but I implore you not go get into an unproductive shouting match about the comparative merits or demerits of Donald Trump and Hillary Clinton.  Rather, I'm interested  only and exclusively in whether those of you who support one of them will in fact acquiesce politely to the election of the other (and whether you think that your fellow Americans should do likewise)?  I'm also not interested in hearing from any of Bernie's fans, since it defies belief that Republican losers would find him truly more legitimate than Hillary Clinton, who at least has the resume we might legitimately want in a president.

Sunday, May 22, 2016

Elizabeth Warren and the Progressive Long Game

Mark Graber

Elizabeth Warren is the long game for progressives, not Bernie Sanders.

Elizabeth Warren is a lifelong Democrat.  Bernie Sanders is not.  Elizabeth Warren has spent her political career working with and promoting progressive (and other) Democrats.  Bernie Sanders has not.  The process by which Democrats select presidential nominees does seem rigged against Bernie Sanders, but for the simple reason that the system for selecting the next pope is rigged against people who convert to Catholicism only after the papal seat is vacated.  One might note, in this respect, that the process by which Democrats are selecting nominees for Congress does not seem particularly rigged against progressives who identified as Democrats for longer than forty-five minutes before declaring their candidacy.  A fair case can be made that any change Democrats make in their presidential nomination system might in the future work against Elizabeth Warren and other progressive Democrats who have formed extensive relationships with other Democrats during their lengthy political lives.  At the very least, we ought to withhold judgment about whether the Democratic presidential nomination system is rigged against progressive Democrats (i.e., John Kerry, Barack Obama, who ran to the left of Hillary Clinton in 2008), until a lifelong more centrist Democrat unfairly wrests the nomination from a lifelong more progressive Democrat.

Having a Democrat in the White House in the White House for the near future matters more than having a progressive in the White House.  The difference between what President Clinton and what President Sanders might accomplish from 2016 to 2020 with Republican control of the House of Representatives (and probably the Senate) is likely to be minute.  Their possible accomplishments pale in comparison to what President Warren might do in 2020 or (assuming a two term Clinton presidency) in 2024 with Democrats in control of the national legislature.  But imaging Democrats majorities in both houses of Congress after Republicans gain control of all three branches of the national government in 2016 is difficult.   Republicans in control of all national institutions will through gerrymandering, voting suppression and floods of money in the political process create a constitutional order in which Democrats are reduced to a permanent minority (even if, owing to demographic changes, Democrats are a popular majority).  On the bright side, complaints about gridlock, the lack of constitutional change of any sort, and constitution dysfunction will be considerably muted in this new political universe which progressives have in their power to bring about by sitting on their hands this November

Playing the long game means working harder to make Elizabeth Warren or a Democratic of similar progressive values the heir apparent than fighting to the death of the Democratic Party for Bernie Sanders.  This means the fundamental goal of the forces behind Sanders (and progressives supporting Clinton) is to make sure Warren gives the keynote at the convention (the speech of the heir apparent) and progressives are given major primetime roles more generally.  Having Warren and people like Secretary of Labor Tom Perez (brilliant speech at Maryland Law graduation this week) become the face of the Democratic Party's future will do more over time to reduce inequality in the United States than harping on the presumptive Democratic nominee's warts (which pale when compared to the cancer Republicans have chosen to nominate).

Progressive politics is a marathon, much as Bernie Sanders would like to turn the next month or so into a sprint.

Thursday, May 19, 2016

The Going Rate is Thirty Pieces of Silver

Gerard N. Magliocca

Last night, Donald Trump appeared on Press Secretary Hannity's program to discuss (among other things) his proposed Supreme Court list.  There are many fine judges on the list, but any conservative who believes that Trump will pick any of them is a sucker no different from the folks who think that President Trump will build a wall along our southern border paid for by Mexico.

Suppose, though, that I am wrong about what President Trump would do about the Court. So what? What astonishes me as a member of the Federalist Society and as a person who considers himself a conservative (albeit a Burkean one) is how easily so many conservatives are selling out.  Who cares how the Executive Branch might act for the next four years, the argument seems to go. At least the Court would be doing the "right" thing. Not only is that attitude plainly wrong, but it assumes that a President Trump will give the Court the kind of deference that presidents usually give to its decisions.  I submit that everything about Trump's personality argues against that view, and that the first time his Administration lost a big case the Justices (including conservatives) would be trashed as losers and the Court would suffer as an institution.

There is some admirable resistance to this capitulation, especially among some conservative radio talk-show hosts and most of the bloggers at the Volokh Conspiracy. Truth must continue to speak to power.

Voter ID Meets the Voting Rights Act: The Next Big Voting Rights Battle

David Gans

There is no right protected by more provisions of the Constitution than the right to vote.  Nonetheless, as Americans prepare to go the polls to elect a new President, the right to vote is under sustained attack.  Fifteen states, including battleground states like North Carolina and Wisconsin, have new or tougher voter identification laws in place for the first time this election.  In the wake of the Supreme Court’s 5-4 ruling three years ago in Shelby County v. Holder gutting the Voting Rights Act, states have sought to make it harder for members of racial minorities, low-income voters and others to cast a ballot.  In Shelby County, Chief Justice John Roberts wrote that “things have changed dramatically” in the South, but in Texas, North Carolina and elsewhere, southern state governments have pushed the envelope in rolling back the clock on voting rights.  

One of the most pernicious—yet underappreciated—features of these laws is the way in which they discriminate against forms of government-issued photo identification often held by minority voters, forbidding federal, state, and local government employees and students at state colleges and universities from voting even with a government-issued photo identification.  The effect of this discrimination is to keep from the polls registered voters who have government-issued photo identification.  These measures do not respond to any government need:  voter identification laws target impersonation person voter fraud, which is virtually nonexistent, while leaving the more serious problem of absentee ballot fraud unaddressed.  These laws simply throw roadblocks in front of racial minorities and others who wish to exercise their constitutional right to vote.   

Two huge cases challenging new voting restrictions will soon be heard by the federal courts of appeal.  On May 24, the entire Fifth Circuit—the most conservative federal appeals court in the nation—will hear Veasey v. Abbott, Texas’s appeal from a district court ruling that struck down the state’s draconian voter identification law—which allows use of a gun permit, but not a government-issued employee or student photo identification card—as a violation of the Voting Rights Act and the Constitution.  Last August, a three-judge panel of the Fifth Circuit issued a unanimous ruling, written by G.W. Bush appointee Catharina Haynes, partially upholding the district court’s decision, and Texas asked the full court to hear the case. In its defense of the law, Texas is urging the court of appeals to create a “voter identification” exception to the Voting Rights Act, insisting that, if the Voting Rights Act is not read narrowly, the Act’s nationwide prohibition on voting discrimination is unconstitutional.  On June 21, the Fourth Circuit will hear North Carolina State Conference of the NAACP v. McCrory, an expedited appeal from a recent 485-page district court ruling upholding an omnibus voter suppression law enacted by the North Carolina legislature in 2013, which imposed a restrictive voter identification requirement, while eliminating a host of voting reforms designed to increase political participation by racial minorities and others.  

One, or even, both of these cases could reach the Supreme Court later this year.  In 2014, Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, dissented from the Court’s refusal to block the Texas voter identification law for the 2014 election, stressing that the restrictive law “risks denying the right to vote to hundreds of thousands of eligible voters.”   Last month, the Supreme Court once again refused to intervene, but allowed the plaintiffs to seek relief again if the Fifth Circuit did not rule or vacate the stay by July 20.  Importantly, the Supreme Court’s unsigned order prevents the Fifth Circuit from simply running out the clock on the thousands of voters whose rights are at stake.   

The key question in Veasey and North Carolina State Conference of the NAACP is whether voter identification laws that, whether intentional or not, make it harder for racial minorities to exercise their right to vote can be squared with the Voting Rights Act’s nationwide prohibition on racial discrimination in voting.   The answer plainly is no. 

Enacted in 1965 and amended in 1982, the Voting Rights Act’s nationwide prohibition on voting discrimination helps to realize the promise of the Fifteenth Amendment that the right to vote shall not be “denied or abridged” on account of race.  Drawn in sweeping terms, the Act forbids intentional discrimination as well as laws that result in a denial of equal political opportunity or perpetuate racial discrimination.  Using its power to enforce the Fifteenth Amendment, Congress sought to ensure that the right to vote is equally enjoyed by all regardless of race.     

The stringent voter identification laws enacted in Texas and North Carolina violate the Voting Rights Act’s promise of equal political opportunity: they threaten to disenfranchise thousands of minority voters, even preventing federal, state, and local government employees and students at state universities from voting with a government-issued photo identification, and make it hard for those without a qualifying identification to obtain one.  Rather than allow voters to go to a polling place or other easily available government office, voters without a qualifying photo identification—who are disproportionately racial minorities—have to travel significant distances, in some cases hundreds of miles, to get one.  This is a system that perpetuates vestiges of discrimination that continue to hamper racial minorities.  

In North Carolina State Conference of the NAACP, the district court judge ignored the law’s discriminatory features because the statute provided a “reasonable impediment” exception that allows a voter to cast a provisional ballot if he or she can present a reasonable excuse for not having a photo identification.  These softening devices are common, but they cannot justify laws that make it harder for racial minorities to vote.   Provisional ballots are subject to challenge, more prone to poll-worker error, and are less likely to be counted than other ballots.  Indeed, North Carolina election officials are currently deciding whether to throw out 1,000 provisional ballots cast in the March presidential primary.  A system that relegates minority voters to provisional ballots does not comport with the Voting Rights Act’s command of equal political opportunity.    

States have significant authority to ensure the integrity and reliability of the electoral process, but they may not accomplish those ends by using means that result in racial discrimination.  The Voting Rights Act does not permit arbitrary, discriminatory state laws that make it harder for racial minorities to exercise their right to vote.  Simply put, there is no “voter identification” exception to the Fifteenth Amendment’s guarantee that the right to vote shall be enjoyed equally by all regardless of race. 

David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History

The Garland Affair

Jason Mazzone

Robin Bradley Kar and I have posted the near-complete draft of our forthcoming essay, The Garland Affair: What History and the Constitution Really Say About President Obama's Power to Appoint a Replacement for Justice Scalia. The abstract is below and the essay is available at this link. We are also putting together a forum for responses and further discussion: if you are a law prof and have an interest in contributing a short commentary (on a necessarily expedited schedule), please contact me at mazzonej[at]

After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they would not consider or vote on any replacement nominees from President Barack Obama. Instead, Senate Republicans deliberately seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have yet to engage with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the U.S. Supreme Court pending and Donald Trump the presumptive nominee of the Republican Party, this Article seeks to bring greater attention to these risks.

We begin with history and show a striking fact that has not yet been recognized: There have been 103 prior cases in which—like the case of President Obama’s nomination of Judge Garland—an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year. By contrast, there have been only six prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all six such cases, there were, however, contemporaneous questions, not present here, about the status of the nominating President as the most recently elected President. The historical rule that best accounts for senatorial practices over the entirety of U.S. history is thus the following: While the Senate has the constitutional power to provide advice and consent with respect to particular Supreme Court nominees and reject (or resist) particular candidates on a broad range of grounds, the Senate may only use this power to deliberately transfer a sitting President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt.

Given this more than two-century long tradition, the Senate Republicans’ current plan marks a much greater departure from historical precedent than has thus far been recognized. There is, however, still a further question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. In either case, the consequences of the plan are far more serious than its architects could have originally understood. After describing both possibilities, we suggest that Senate Republicans should rethink their plan so as to avoid these newly exposed historical, pragmatic and constitutional risks. Instead of continuing forward, the Senate should do what it has always done in similar past circumstances. It should proceed to full Senate consideration of Judge Garland or any other nominees that President Obama submits in a timely manner.

Tuesday, May 17, 2016

What to expect from the Zubik remand: a possible solution for "church plans," but otherwise no obvious common ground

Marty Lederman

This much is clear about the Court's per curiam disposition in Zubik v. Burwell yesterday:  It does not resolve any of the important, outstanding interpretive questions regarding RFRA.  Indeed, the Court was careful to insist that its remand "does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest."  The Zubik case, therefore, will not have any impact on the application of RFRA outside the context of the contraception regulation--not yet, anyway.  (I discuss some of the more important outstanding issues in this article.)

The Court's order is also unlikely to lead to voluntary resolution of many of the dozens of pending "nonprofit" cases challenging the contraception regulation, as well as such cases that for-profit employers might yet bring in the future.  As I explain below, I believe that although some of the cases (those involving "church plans") ought to be resolved amicably in the lower courts, there will remain at least some cases--probably quite a few--in which the parties are unable to reach an agreed-upon compromise.  Therefore, unless all of the courts of appeals reject the remaining RFRA claims--which is a possible, but by no means certain, outcome--at least some of those cases are likely to find their way back to the Court in the next year or two, at which point a full complement of nine Justices would be able to resolve the outstanding disputes.

Once again, in order to understand what is likely to happen to the cases as they return to the lower courts, it is necessary to distinguish among the three very different types of health insurance plans at issue in the cases, which I'll do in a bit more detail below.

The gist of my preliminary assessment is this:  For reasons I have explained before, I think that the cases involving ERISA "church plans" (including the suit brought by Little Sisters of the Poor) can probably be settled below, because there was never much at stake in them to begin with:  The government has long conceded that, under its own regulatory accommodation, it cannot require the third-party administrators of such plans to provide contraceptive payments.  The plaintiff organizations in such cases thus have the power to preclude such payments, and therefore they have nothing to complain about.  When that much becomes clear on remand, it ought to facilitate a quick resolution of those cases.  I am not as sanguine as the Court appears to be, however, about the prospects of settlement of the remainder of the cases, involving "insured" plans and "self-insured" plans that are not church plans, because many or all of the plaintiffs in those cases continue to insist that their religious exercise would be substantially burdened unless obstacles are put in the way of the insurance companies' payments to women; and, understandably, the government is unlikely to accept any solution that includes such obstacles.

The most vexing question on remand--and the one the lower courts presumably will have to grapple with sooner rather than later--is what the status quo should be during the year or two before the unresolved cases make their way back to the Supreme Court (or are otherwise resolved on the merits).  In this regard, one sentence of the Court's order yesterday stands out:  "Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives.'"  

I read this as an unambiguous directive from the Court (without apparent dissent) that the lower courts should not impose any obstacles to the government's ability to implement its regulations so as to "ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives,'" during the pendency of the litigation.
Currently, however, there are injunctions in place in almost all of the lower court cases that do "affect the ability of the Government to ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives,'" by preventing the federal agencies from enforcing their regulations against the plaintiff organizations.  In accord with the Court's order, the lower courts should lift those injunctions straight-away.  Even in the absence of the injunctions, however, there might be a host of tricky questions concerning how the government might ensure that the insurance companies in question make payments to the women covered by petitioners’ health plans while the petitioners' RFRA objections remain pending.  I'll briefly discuss some of those lurking questions in my discussion below.

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The Unwritten Constitution and Presidential Authority

Gerard N. Magliocca

Inspired by Sandy's posts, I want to highlight another aspect of the 1800 presidential election that is especially relevant as a point of comparison to 2016.  For most of the nineteenth century, presidential candidates did not openly campaign for that office--it was seen as undignified. This was a custom that basically ended in the great clashes between William Jennings Bryan and William McKinley in 1896 and 1900, but there was considerable merit in that practice. The rise of a demagogue was much more difficult if that person could not personally appeal to voters, and presidential authority was far more circumscribed because those leaders were dependent on surrogates to get elected (or reelected).

Of course, we now know that these candidates of old were chumps, as they could have just invented an alter ego like "John Barron" and campaigned for the Presidency through imaginary surrogates.

Monday, May 16, 2016

More on Hamilton and Burr

Sandy Levinson

An interesting side discussion has suggested that Aaron Burr really wasn't so bad as Hamilton suggested in the letters that I quoted (and which, incidentally, were intended to be circulated and thus made known to the relevant publics).  Unlike Donald Trump, for example, he had served his country honorably during the Revolution.  Burr was also anti-slavery.

All of that is interesting, and it is possible that Hamilton was being unfair to Burr.  But, in some sense, that is beside the point.  There can be no doubt whatsoever about two things:  First, Hamilton was acting in terms of what he thought was the public interest.  This was not Henry Clay throwing his support to Adams in return for becoming Secretary of State.  Hamilton obviously never became part of the Jefferson Administration.  One should take him at his word that he was behaving on completely honorable grounds.  The only way that party entered into his calculations was his altogether acute observation that the Federalists would become absolutely liable for a Burr presidency (and for whatever he did) in a way that would not be true if Jefferson became president and they continued to oppose his policies.  Second, there is no reason whatsoever to doubt the sincerity of Hamilton's denunciations of Burr.  Even if we decide was Hamilton was the victim of "Burr derangement syndrome," that doesn't affect at all the fact that he genuinely believed Burr to be a menace to the transcendent goal of establishing a truly "Republican Form of Government" in the United States.  (One might wonder if Burr's post-duel and vice-presidential career vindicated his critics, as was the arguably true with regard to Robert Bork following the rejection of his appointment to the Supreme Court.) 

Hamilton had learned what honor meant from George Washington:  One of the most remarkable features of "Hamilton" is the Washington's Farewell Address, which I never imagined would bring tears to my eyes, but it does inasmuch as it truly captures what made Washington such a truly great republican leader by rejecting the notion of the "indispensable man." 

The overall point is that Alexander Hamilton provided an inspiring model of what it means to be a truly public-regarding citizen.  Paul Ryan could do much worse than to immerse himself in the work both of Pope Francis and Alexander Hamilton if he wishes to present himself as a man we should have any respect for.  Even if one believes that Hamilton ignored some of Burr's merits, that still doesn't entail, of course, believing that we would have been better off with Burr than with Jefferson as president.  (There is also the possibility that the imposition of Burr by Federalists would have led to civil war given the threat of Pennsylvania's and Virginia's governors to call out their militias and march on Washington should the Federalists in effect steal the election.)

It is interesting to compare the Goldwater election with this one.  Many Republicans refused to support Goldwater, but the rationale was, as I recall, almost entirely on policy grounds.  He had, after all, voted against the Civil Right Act of 1964 and seemed dangerously "extremist" to many.  With very few exceptions, he was not denounced as a dangerously power-hungry narcissist  who has no consistent commitments other than xenophobia.  JFK in fact liked Goldwater and was apparently looking forward to flying around the country to debate with him should he get the nomination.  Nor, incidentally, do I recall that Goldwater spent much time attacking the personal character (or physical characteristics) of his adversaries. 

Saturday, May 14, 2016

Alexander Hamilton, Aaron Burr, and Donald Trump

Sandy Levinson

I have published in several Texas newspapers an op-ed about Hamilton's decision to support Thomas Jefferson over Aaron Burr as the House of Representatives was voting on how to break the tie vote between them.  Whatever one might think of some of Hamilton's particular policies, there can be no doubt that he was a genuine patriot, unsullied by personal corruption.  (This is why he chose to write his disastrous "Reynolds pamphlet" about his affair with Maria Reynolds, because private shame was ore easily bearable than accusations of public dishonor.  And he clearly believed that patriots committed to the national interest should rally around Jefferson, whatever their doubts, as agains the totally unprincipled and opportunistic and vainglorious Aaron Burr.  My essay quotes from several letters he wrote at the time, and I suggest that one could easily substitute Donald Trump for Aaron Burr, with the result being the same.  I.e., no serious patriot should be supporting Donald Trump for the presidency, period

As one might imagine, I've received a number of emails from readers, some of them complimentary, a few of them out-and-out condemnatory, and several that disagree in a very thoughtful way.  W hat is clear is that many Republicans believe that Hillary Clinton, too, could "fill in," as it were, for Aaron Burr.  That is, they don't trust her any more than Hamilton trusted Burr or any of us should trust Donald Trump.  I disagree, but that, in some ways, is beside the point.  It seems clearer than ever that this is going to be the dirtiest presidential campaign in American political history.  The only thing Donald Trump knows how to do is to cast aspersions at anyone who stands in his way, and Democrats will rightly condemn Trump as unfit for the presidency.  Hillary Clinton must find effective ways of defending herself against the coming onslaught, financed in part by the egregious Sheldon Adelson, who has, I suspect, far more money available than does the posturing Trump.  Even if she were pure as the driven snow, that wouldn't stop Trump for casting aspersions.  But even her genuine admirers, of whom I am one, don't view her as Snow White.  I confess that I think she should release the transcripts of her Goldman Sachs speech, the content of which about reasonable people can wonder. about.

As usual, I am allowing comments.  The main thing I'd like to hear, from Republicans, is whether (and why) they believe that Hamilton was mistaken in supporting Thomas Jefferson; if not, do they agree that honorable Republicans should, even if not vote for Hillary Clinton, perhaps vote Libertarian or write in the name of a non-fascist Republican who is, by training and character, equipped to hold the office of President of the United States.  I'm also not interested in hearing analyses of why Trump turned out to be appealing to his constituents.  The one and only question is whether Donald Trump is in fact fit to be President.

Readings of "Taking a Hard Line"

Mark Tushnet

To review the bidding: I wrote that, having won the culture wars, liberals faced a tactical question of how to treat the losers, with the options being accommodation or taking a hard line. I offered my own tactical judgment, based on four historical examples, that taking a hard line was the better approach. The four examples were presented thus: “Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.)”

This was presented by the egregious Ryan Anderson as, “Harvard Law Professor Says Treat Conservative Christians Like Nazis.”* (For obvious reasons I’m not providing links to this or the next two versions.) Then it migrated, first, I think, to Breitbart, then to, among other places Der Stürmer American Vanguard, as “Jewish Harvard Prof Urges Liberals to Treat Evangelical Christians Like Nazis.” Breibart added that I was a 70 year old professor, a detail the relevance of which eluded me until I read some of the ensuing hate mail: some used the detail to suggest that I was an intellectually enfeebled senile old man unable to construct a coherent argument, while others calculated my birth date and did the “if Hitler had won, your mother…” thing. (By the way, the strike-through was the snark I resisted until now, not snark about the generic “negative reaction” to my comments.)

I know that an author lacks control over the meaning others give to his or her words, and of course it’s semantically consistent with those words to read them as urging war crimes trials for the losers in the culture wars, denazification, and the like (or, as one pained letter to the Dean of Harvard College put it, gunning Christians down) – even though that’s not what I intended. More temperate readings are possible, though, and so those who offer the stronger readings can be queried about why they chose those readings rather than other semantically possible ones (as can I be queried about why I choose a more temperate reading; to say that one reading – the strong one or the temperate one – is a reasonable one isn’t enough). The answer for Anderson and Der Stürmer is  clear to me: The strong reading is useful for rallying the troops (for what in my view is a silly skirmish as the troops fall back in retreat). The answer for most of those who sent me hate mail is also clear – about one-quarter antisemitism, and almost all the remainder that the writers didn’t read what I wrote but only what Anderson, Breitbart, etc., wrote, and so did not have their own independent reading. I have my views about the answer for others, not among the writers of hate mail, who gave the words the stronger reading, but articulating those views would annoy them even more, which I really don’t want to do.

The target of my “take a hard line” was a set of ideas circulating among liberals and sensible conservatives about being accommodating in victory (or, for the latter, being accommodating full stop), in advance of any indication that doing so would actually contribute to healing the wounds of war – about doing the equivalent of pursuing Andrew Johnson’s policies for Reconstruction, or hoping with Felix Frankfurter that gradualism in desegregation would bring about real change in the post-Brown South. I haven’t yet heard anything other than vague hopes that accommodation rather than a hard line will be more effective, or some hand-waving gestures in the direction of the thought (mistaken, I believe) that only accommodation is consistent with a commitment to bringing whatever national unity is possible after victory in the culture wars. (Of course all this rests on the accuracy of my evaluation of the state of the culture wars, which might be mistaken – though equally of course I don’t think it is.)

* By the way, somehow I got on Anderson’s e-mail list for “Public Discourse” and continue to get e-mails from it even after I use Outlook to “add sender to blocked senders list.” Help appreciated.

Consistency and Aggressive Liberal Constitutionalism

Mark Tushnet

Eric Segall has an interesting post arguing, against my “against defensive crouch liberalism” piece, that liberals anticipating gaining control of the federal courts should (continue to) advocate for a general stance of judicial deference and restraint, because (a) historically, on balance the courts have enforced anti-progressive views and (b) the Constitution’s values are not progressive ones. Apparently referring to or citing my piece Randy Barnett tweeted, “See how progressive commitment to judicial restraint lasts only as long as conservatives are in control.”

In response to Eric: I agree with his assessment of history but disagree with his assessment of the Constitution – the latter because the Constitution doesn’t “have” values in the sense Eric intends (his verb is “are,” but the meaning is the same). Rather, the Constitution is infused with the values we give it, sometimes progressive, sometimes not, depending on where we are in our history.

The historical point, while valid, really doesn’t counsel against doing what can be done with the courts when liberals are “in control.” It would, perhaps, if somehow doing so would mean that when conservatives retook control, they would be deferential and restrained. But we know from history that that’s not true. Just as, in Randy’s view, for liberals judicial restraint is a sometime thing, so too for conservatives.

The point about the fluidity or, in Jack’s terms, the ideological drift of “judicial restraint” is analytically tricky, though, because it is true on the level of movements but not necessarily true on the level of individuals. That is, because movements have a longer life span than the intellectual life span of individuals, one can find individuals who remain consistent over time even as the movements with which they are associated with are ideologically fluid. In particular, younger conservatives might be entirely consistent throughout their careers in advocating for judicial engagement or “just enforcing the Constitution” even though their older colleagues in the movement were (and might still be) advocates for judicial restraint. (In a different though related doctrinal domain, the struggles John Yoo has had with aggressive exercises of presidential power after 2009 are exemplary here.)

That’s why my individual case might be of some interest; I’ve been around long enough to have experienced the waves of movement change on “my” side of the aisle. But, contra Randy, I don’t think that I’ve changed. In “Taking the Constitution Away from the Courts,” I wrote, “Unilateral disarmament is rarely a good idea.” (Apparently I’ve had to confirm that I wrote that sentence so often that the book naturally falls open to the page on which it appears!) That is, I am in favor of taking the Constitution away from the courts for everybody, but that can be done only through some sort of institutionalized mechanism. In the book I referred to a possible Supreme Court decision disavowing the power of judicial review; elsewhere I’ve indicated my attraction to some variant of the Canadian “override” mechanism (as did Judge Bork, by the way). But, without some sort of institutionalization, a progressive posture of judicial deference and restraint is unilateral disarmament, and I’m against that.

Finally, I emphasize something that Eric notes in passing. Overruling decisions such as Citizens United, Shelby County, and Heller is legislature-empowering – which makes sense if, by hypothesis, progressives are in charge in the political branches. If that hypothesis is correct, though, progressives might be a position to achieve our rights-protective goals through legislation – a national statute against anti-LGBT discrimination, for example, or a national statute protecting the right to choose with respect to reproduction. So, here too, a judicial stance of deference or restraint – with respect to federalism – might well be desirable. But, it too would require overruling or at least substantially confining some conservative precedents that were wrong the day they were decided.

Thursday, May 12, 2016

Judicial Constraint, Judicial Restraint, and the New Originalism


The distinction between judicial restraint and judicial constraint is an important new idea in constitutional theory. Both Larry Solum and Randy Barnett have blogged about it, and Solum traces it back to a 2011 article by Thomas Colby. Judicial constraint offers an important alternative to judicial restraint as a theory of judicial duty. For this reason, it is likely to be especially attractive to conservative and libertarian originalists, who hope to explain and justify robust judicial review to protect important constitutional values.

Judicial restraint means deferring to the political branches about contested questions of constitutional law. Judicial constraint means that judges act consistently with the Constitution's original meaning.

I hope you can see why this distinction might be helpful to contemporary conservatives and libertarians who want the courts to protect constitutional values. The concept of judicial restraint, developed by Progressives in the first decades of the twentieth century, argued judges should defer to the political branches in cases of reasonable doubt. Later, it was taken up by conservatives who objected to liberal judicial decisions in the middle and final decades of the twentieth century. Conservatives argued that liberal courts should defer to the judgments of political officials in areas like civil rights, civil liberties, and especially the regulation of sexuality.

However, by the beginning of the twenty-first century, the concept of judicial restraint fit awkwardly with the constitutional beliefs of today's conservatives and libertarians. (This is yet another example of what I call ideological drift.)

Conservatives and libertarians have pointed out that legislatures and executive officials often violate important constitutional norms that secure limited government, federalism, and the separation of powers. They also argue that judges have a duty to enforce the Constitution's original public meaning in order to protect constitutional rights and constitutional values. The language of judicial restraint doesn't capture this obligation very well, and often works at cross-purposes to it. Deferring to majorities in these circumstances is not a virtue; it may actually be contrary to the judicial duty to interpret and defend the Constitution.

Hence, the argument goes, constitutional conservatives should reject judicial restraint in favor of judicial constraint. The obligation of judicial restraint is based on a theory of respect for majoritarian democracy; judges should defer to the judgments of elected officials in contested cases because these officials represent majorities. Judicial constraint, by contrast, is premised on a theory of constitutional limits on majority rule, limits that are marked by the Constitution's original meaning. If the political branches overstep these limits, fidelity to original meaning requires striking down laws or executive actions. In such cases, judicial restraint is no virtue; judicial constraint is required.

Nevertheless, the concept of judicial constraint may promise more than it can deliver. How much the duty of judicial constraint actually constrains judges depends on whether one has a relatively thick or  thin conception of original public meaning. In order to do any important work in justifying judicial review, judicial constraint must rest on a relatively thick - and contestable - conception of original public meaning.

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First Amendment Opportunism: Heads, Facebook Wins; Tails, We Lose

Frank Pasquale

Oft-discussed at Yale's black box conference in April, Facebook bias is now a national news item: a Senate investigation is on the way. Michael Nunez has interviewed former curators at the media/platform/AI/VR behemoth, who say conservative news (and news critical of Facebook itself) was routinely suppressed. Experts are developing proposals to ensure fairer and more transparent social media.

I think these proposals are, by and large, commendable, but I worry that they will be deflected by glib arguments. The elite press has all too often swallowed Google’s characterizations of the “right to be forgotten” as an affront to basic principles of freedom of expression. They will probably be receptive to Facebook's claims that it is little more than a digital town crier, which must be protected from the heavy hand of the state.

So, in the spirit of Chris Hoofnagle’s Denialist Deck of Cards, let’s review some of the analogies most likely to be deployed by Silicon Valley lobbyists, and why they are unconvincing, contradictory, or both.

"The algorithm is too complicated for anyone to understand--how can you regulate it?": This is a classic move for large internet platforms. “How could we be biased? Even we don’t understand what’s going on:” I’ve heard this from engineers, journalists, and computer scientists. But even if the data processing is too complex to understand, we can still regulate what data goes into platforms’ algorithms, and how the outputs are used. Moreover, it's not even relevant here.

"We have a clear point of view—we’re speakers with full First Amendment protection": The “complicated algo” line is not likely to work in this case, because Nunez’s report features curators who explicitly state they were told to inject bias into trending topics. So expect a diametrically opposed line: rather than characterizing trending topics as too complex for anyone to understand, now friends of Facebook will say the firm expresses a clear political point of view. “We’re a liberal company—you can’t force us to prioritize conservative news. We’re the New York Times of the 21st century!”
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Tuesday, May 10, 2016

Will the courts adjudicate whether Operation Inherent Resolve (against ISIL) is legal?

Marty Lederman

As most Balkinization readers are likely aware, Army Captain Nathan Michael Smith recently filed suit against President Obama, seeking a declaration that the continuing conflict with ISIL is unlawful.  The President introduced U.S. forces into hostilities against ISIL in Iraq and in Syria in the latter half of 2014.  Captain Smith believes that the operation “is justified both militarily and morally,” and his participation in it “is what I signed up to be part of when I joined the military.”  Even so, he argues that Section 5(b) of the War Powers Resolution (WPR) required the President to withdraw the troops from hostilities after 90 days — an obligation that continues to this day — because Congress had not, and still has not, authorized those hostilities.  The President, of course, insists that Congress has authorized the troops’ use of force against ISIL, which, if correct, would mean that the requirement of the WPR is satisfied.

In a post over at Just Security, I explain why the courts are unlikely to reach the merits of Captain Smith's claim.  It's not because the case presents a nonjusticiable “political question.”  The dispute turns on a standard-issue (if perhaps difficult) question of statutory interpretation, namely:  Has Congress authorized Operation Inherent Resolve, or not?  As the Chief Justice explained in Zivotofsky v. Clinton, deciding whether Smith’s or the President’s interpretation of the relevant statutes is correct “is a familiar judicial exercise.”

Nevertheless, the courts are likely to dismiss the case for lack of standing, because Captain Smith has not suffered an injury-in-fact by virtue of the President’s actions — let alone an injury that would be remedied by the declaration he seeks.

Smith has not been placed in harm’s way in Iraq or Syria; instead, he has been deployed to Kuwait as an intelligence officer at Camp Arifjan, where he works in the headquarters of the commander of Combined Joint Task Force-Operation Inherent Resolve.  He asserts that the President’s alleged failure to comply with the WPR prevents him from “honor[ing]” the oath of office that he took when he became a commissioned officer in 2010.

In my post, I explain why Smith has not alleged any facts to support his claim that the President's actions prevent him from complying with his obligation to “bear true faith and allegiance” to the Constitution (even assuming that such a showing would suffice to establish Article III standing).

Monday, May 09, 2016

What Does "Taking a Hard Line" Mean?

Mark Tushnet

Well, that certainly provoked people (or rather, one parenthetical comment did). Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).

I said that victors in the culture wars should take a hard line with losers, making several historical allusions to cases where I thought that taking a soft line didn't work and taking a hard line might have. But what a hard line is will vary with the circumstances. In the context I was writing about, for example, "taking a hard line" means opposing on both policy and constitutional grounds free-standing so-called "religious liberty" laws. (The constitutional argument builds on Romer v. Evans.) It also means being pretty leery about some "compromises" I've heard floated -- most notably, agreement by Christian conservatives to support extending general nondiscrimination laws to cover the LGBT community in exchange for including "religious liberty" exemptions. (I should note that I've heard these proposals from conservative academics, but the proposals seem to have no traction whatever among conservative politicians who, given the opportunity to offer such a statute, have opted for free-standing "religious liberty" statutes instead.)

Why leery? Partly because working for the proposals would mean compromising in advance, which doesn't seem to me a good strategy. But also, because because the exemptions that might satisfy "our side" would have to be pretty narrow -- available, for example, only to individual proprietors, small partnerships, and corporations with some low number of employees along the lines of the Mrs. Murphy exemption from the Fair Housing Act; and some sort of constraint on the exemptions' availability in cases of claimed "complicity." (I don't know whether even these would be acceptable to activists on "our side.") And here's the problem: Narrowness makes the exemptions constitutionally vulnerable ("corporations are people," "who are you to assess whether my religious claim is a sensible/acceptable one?," and all that). Maybe some conservative politicians would go along with the suggested compromise, but they can't control aggressive litigators.

Assuming, though, that our side has won the culture wars, maybe we can hope that the courts would reject the constitutional challenges, invoking, for example Chief Justice Rehnquist's point about "play in the joints" in religious-liberty contexts. But, at the moment, taking a hard line means waiting for these proposals to get traction among conservative Christians.

I can't help thinking, though, that the outraged reaction is just an indication that -- to extend one of the historical examples I used -- like the Japanese soldiers who were stranded on islands in the Pacific and didn't know the war was over, so too many people on their side haven't yet come to terms with the fact that they lost the culture wars.

Sunday, May 08, 2016

Federalist #1 on Donald Trump

Gerard N. Magliocca

"A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."

Saturday, May 07, 2016

Trump and Trust

Stephen Griffin

The key theme of my book Broken Trust (look over to the right!) is the importance of political trust to the maintenance of the constitutional order.  I agree with Jack of course re Sibelius and I think Orin Kerr's diagnosis is on the mark.  Before developing the trust point a little further I just want to observe that since the 1970s I've seen several distinct upsurges of interest in libertarianism. Somehow, however, the libertarian moment in American politics never seems to truly arrive.  There are some hard truths in Trump's ascendancy for those inclined to take libertarianism seriously.

The issue of trust is critical to understanding Trump's success.  Especially over the last four years, Republicans hollowed out their own party by promising too much and then never delivering.  This undermined the credibility of every elected Republican and so opened the door to a radical outsider. No one could argue against Trump effectively because their credibility had already been destroyed. This is how I interpret Orin's argument and he develops it very effectively.

There are some longer term aspects to the decline of trust, however, that I would like to highlight here that pose issues for both parties.  In general, it is not a good idea for both parties to tell the American people there is a critically important issue facing the country and then either not to do anything about it or to address it ineffectively.  Vietnam would be an older example in this context.  Although there have been a few stories comparing Ross Perot's 1992 candidacy to Trump's, I don't think there has been enough attention to exactly why Perot received a substantial percentage of the popular vote. Perot's signature issue was the budget deficit, something both parties had tried to address without success.  Perot in effect agreed with both parties and then one-upped them.  Perot was not a good candidate and would have made a terrible president in my opinion, but he scored high with many voters frustrated at the inability of the political system to deliver.

The 21st century has unfortunately seen quite a few issues where both parties have struck out.  Both parties endorsed the Iraq War, telling the American people it was a good idea.  In this election cycle, the only candidate who seemed to still think this was true was Jeb Bush.  Both parties (for perhaps different reasons) endorsed immigration reform and then failed to deliver.  Both parties wanted more free trade, especially with China, and didn't pay enough attention to the downside.  Both parties voted for TARP and then ran for the hills, in effect refusing to explain to the American people why extraordinary actions were necessary to combat the fall 2008 financial crisis.  Both parties were responsible at different times for slowing work in Congress to a crawl.  And both parties are complicit in different ways in running the system that finances politics in ways that look irredeemably corrupt to the American people.  The list of both-party failures is really pretty long.  Democrats need the same wake-up call that Republicans just received!  And because parties are key elements of our constitutional order, their continuous malfunction puts the legitimacy of that order into serious question.

As Sandy Levinson has argued on this blog for a number of years, I think sometimes we tend to concentrate on the battles between the parties, on which party is at fault for what mess rather than looking at the broader picture of systemic failure.  Which is the picture that Trump's voters (and Bernie Sander's voters) are looking at.  We ignore that picture at our peril.

Friday, May 06, 2016

John Roberts Derangement Syndrome


Ilya Shapiro has figured out why Donald Trump has taken over the Republican Party.

It's all John Roberts' fault.

You see, John Roberts voted to uphold Obamacare by exercising "judicial restraint." Seeing this, Republican voters simply lost faith in the Supreme Court's ability to uphold the Constitution and the Rule of Law. And, as a result, they became raving populists who simply wanted to win at all costs. The stage was set for political craziness. Just add Donald Trump and stir.

As Ilya puts it:

Roberts recognized that the Affordable Care Act was unconstitutional yet still saved it out of a misbegotten devotion to judicial restraint—under the guise of deferring to “the people.” . . . Roberts increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.

The man’s twistifications drove the constitutionalist Tea Partiers into the arms of the populists—or made it easy for their populist instincts to “trump” their constitutional ones (pun unintended, but fitting). Why bother with the Constitution? Even when you’re right, you lose.

Huh?  This was what caused Americans to lose faith "in institutions across the board?" Most voters have never read a Supreme Court opinion. They simply have no idea how John Roberts decided the case, or whether his arguments were good or bad, solid or "twistifications," other than being aware of the result. It's very hard to see how legal scholars' outrage at Roberts' use of the constitutional avoidance canon would have sent to the masses the clear signal-- "give up on the Constitution!"-- that Ilya believes it sent.

This is simply a bizarre claim about human psychology, and about the views of the average American voter. It is an especially bizarre claim about the views of the average Republican voter, who cares little for what conservative elites and intellectuals care about.

This disconnect between what conservative intellectuals care about and what Republican voters care about is precisely the reason that Trump succeeded. And Ilya seems not to recognize that fact.  Indeed, he displays that disconnect powerfully in the very argument he is making. He projects his own concerns on to those of the average Trump supporter.
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Stare Decisis in Liberal Constitutional Thought

Gerard N. Magliocca

Building on Mark's post, I think that an important question over the next several years will be how the liberal Justices understand stare decisis once they are in the majority.  Part of what Mark calls "defensive crouch liberal constitutionalism" was a relatively robust view of precedent, for the simple reason that liberal precedents were more often on the chopping block.  I suspect that it will be rather hard for senior Justices such as Breyer and Ginsburg to abandon that sensibility, though maybe not so much for the newer members of that wing of the Court.

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