The Myth of the Irresolvable Conflict

David Super

      Monday’s decision in Trump v. Anderson amplifies a growing if selective theme in our public life:  the assumption that no controversy may ever be resolved because neither side will accept its loss.  From this, the reasoning seems to go, we should wall off the processes through which a conflict might arise and, if one does anyway, regard it as permanently irresolvable.  This pattern of thinking is irreconcilable with both democracy and the rule of law, yet it seems to be gaining ground. 

     On Monday, the per curiam declared that “state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the President represents all the voters in the Nation. … The patchwork that would likely result from state enforcement would sever the direct link that the Framers found so critical between the National Government and the people of the United States as a whole.”  (Citations and internal quotations omitted.)  Justice Barrett joined this part of the Court’s opinion, and the disaffected liberal justices wrote that allowing states to enforce Section 3 of the Fourteenth Amendment “would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” 

     To read this, one might think that the justices have never heard of a certain institution empowered to resolve such disagreements among states’ adjudications of federal questions.  Indeed, that institution, at the very moment the justices were writing, was busy resolving a patchwork of inconsistent state decisions about a candidate’s eligibility for federal office. 

     If we cannot bear the thought of states reaching inconsistent applications of federal law, perhaps the Court should overturn Testa v. Katt and get the states out of the business of applying federal law at all.  That would, of course, lead to a serious under-enforcement of crucial tenets of federal law, but that is no more than what happened in Trump v. Anderson.

     As awkward as the Court’s phobia about controversies may be, it has become increasingly common.  Traditionally, parties wishing to win a point seek to persuade others that they are correct.  Now, however, they may deem their task merely to be declaring the existence of a controversy, no matter how flimsy.  President Trump’s strategy for overturning the results of the 2020 election did not depend in any meaningful way on submitting proof of fraud; he and his accomplices believed they only had to assert their subjective opposition to the result.  Under their plan, Vice President Pence would declare that two conflicting sets of electoral votes had been submitted and therefore, merely because a controversy existed, neither should be counted.  This assumes that no evidence is required to raise a controversy and no amount of evidence is sufficient to resolve one.  A large majority of House Republicans agreed. 

     In his concurrence with the Court’s granting a stay in Bush v. Gore, Justice Scalia declared that “counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”  Here again, we are told that the mere presence of a controversy is so harmful that it must be prevented, even at the cost of gaining evidence that could lead to a more accurate resolution.  The Supreme Court could and did resolve that controversy; its resolution was not to everyone’s liking.  Justice Scalia’s view, like those of the election deniers twenty years later, implies that the mere presence of a disagreement is debilitating in and of itself. 

     We see this same assumption in crucial public policy discussions.   Most of the Republican Party opposes acting against climate change because, it says, the existence of human-caused climate change remains controversial.  That this supposed controversy almost entirely reflects the subjective, self-interested preferences of extractive industries, with many of the supposed evidence contradicted even by their own internal research, is deemed immaterial.  The mere fact that the oil and gas industry will continue to protest is seen as rendering the controversy irresolvable and hence policy action inappropriate. 

     The same could be said about any proposals to treat LGBTQ youth more humanely:  although no meaningful evidence suggests that brutalizing them and pressing them to deny their identities achieves anything good, because some loud, angry voices demand that we do, the question is treated as an irresolvable controversy. 

     I am finishing up an article arguing that this sort of “adjudication failure” has reached the point of becoming self-reinforcing downward spiral that threatens our capacity for self-government. 

     Curiously, when regulating civil litigation, the Court has moved in the opposite direction.  In Bell Atlantic v. Twombly and Ashcroft v. Iqbal, it substantially increased the quantum of facts plaintiffs must present to have the federal courts recognize their cases and controversies.  The Court had never suggested that disputed questions could not be resolved, or that the losing parties’ objections would somehow stay action indefinitely, but it had previously been more willing to allow an exploration of the facts through discovery.  Under either view, however, the mere fact that a dissatisfied party might object would not be grounds for despairing of reaching a resolution, as Trump v. Anderson seems to suggest. 

     @DavidASuper1