Balkinization  

Tuesday, July 21, 2015

Is Obama a reconstructive president? We'll only know later on.

JB

I am very sympathetic to Gerard's continuing uncertainty about whether Obama counts as a transformational or reconstructive president.  (Given the latest events, he now thinks that the odds have increased.) But there is a reason for this, which concerns a general feature of these kinds of theories of large-scale political change.

Theories like Stephen Skowronek's theory of political regimes, or, Bruce Ackerman's theory of constitutional moments, work best only in hindsight. They make sense of changes that have already occurred and whose significance has already become clear to us.  These are narrative accounts of political or constitutional change, and as narrative accounts, they depend on later events that bestow meaning on earlier ones.

We know that Reagan is a reconstructive president after George H.W. Bush's election, and Bill Clinton's statement that "the era of Big Government is over."  Then the elements of the narrative all seem to fit nicely together: we know that Bush is an affiliated president and  Clinton is engaged in the politics of preemption.  While Reagan's presidency was going on, we could certainly *guess* what would happen, but we couldn't be sure.

For example, if the economy had gone into recession in late 1987 or early 1988, the Democrats might have won the 1988 election, and Reagan's reputation would look quite different today. A recession in 1987 might also have gotten a different cast of characters to run for president in 1988, leading to a very different contest.

Any number of other things might have happened between 1987 and 1988 that would have put the Republicans in a worse position than they actually were. And if a second, steep, recession had arisen  in 1986, Democrats might have tried to push harder on Iran-Contra, and then Reagan would look a bit more like Richard Nixon.

In short, Reagan's status as a transformative or reconstructive president is based on a narrative of events constructed with the benefit of hindsight-- a narrative that we have come to see as the best way of explaining the past. But the course of that narrative isn't always certain during a particular presidency, nor is it really fixed for many years afterwards.

What does this mean for Obama? Simply this. It's possible that the Democrats will win in 2016, in which case Obama's presidency will look much more important and consequential to later generations. People will point to Obama's various domestic accomplishments, the Iran deal, the changing demographics of the Democratic coalition, Hillary Clinton's election, and a federal judiciary filled with liberal Democrats, as a sign that we are in a new political era.

But suppose that the economy declines sharply in January 2016, Hillary's campaign is plagued by scandals and incompetence, and Jeb Bush, Marco Rubio, or Scott Walker-- or someone else-- steadily gathers steam, and marches to victory. Then Obama will look more like Bill Clinton and less like Ronald Reagan.

Our judgments of the kind of presidency that Obama has had, and will have had, in other words, still depend on the future.

The Yugoslavian politician and writer Milovan Djilas once remarked that "[t]he hardest thing about being a Communist is trying to predict the past."  The same thing might be said about predicting reconstructive presidencies, not only while they are still ongoing, but even for years after they have ended.

The Oxford Handbook of the U.S. Constitution

Mark Graber

Mark Tushnet, Sandy Levinson and I are happy to announce that The Oxford Handbook of the United States Constitution is now available to order at https://global.oup.com/academic/product/the-oxford-handbook-of-the-us-constitution-9780190245757?cc=us&lang=en&.  The below will hopefully give people some sense of the contents and contributors.

Efforts to provide comprehensive guides to the United States Constitution date from the framing and ratification of the United States Constitution.  The Federalist was the first self-conscious handbook on the United States Constitution.   Unlike the original and subsequent treatises or comprehensive guides, we were not motivated by a cheerleading impulse when we edited the 2015 Oxford Handbook of the U.S. Constitution.  Although our Handbook contains no specific chapter on what might be termed the “adequacy” of the  Constitution in the 21st century, the very structure of this text, as well as many  specific entries raise questions relevant to such an inquiry.  Comparing our contemporary Handbook of the United States Constitution with the original may shed some light on the incongruities that have manifested over time as contemporary citizens of the United States employ concepts grounded in late eighteenth century constitutional thought when operating a constitution in the early twenty-first century, as well as convincing many of you, we hope, to read the book and the many wonderful essays written by very distinguished scholars.   

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Wrong, Wrong, Wrong

Gerard N. Magliocca

That would be me, last November, when I wrote on this blog that President Obama was not a "reconstructive" leader in the mold of Andrew Jackson, Ronald Reagan, or some of the others described by Steven Skowronek that were the focus of my first book.  November was, of course, a low point in the Obama Presidency.  The GOP won the midterm elections, and the Court granted certiorari in King v. Burwell.  With the consolidation of the Affordable Care Act and the inability of Congress to push back much against the Administration, though, things are looking different now.

I am not saying that Obama has realigned the electorate.  The Democrats would need to win in 2016 to make that statement.  But you also can't say that he hasn't.

Monday, July 20, 2015

Update on the contraception coverage regulations and litigation [Further UPDATED to add fifth cert. petition, in Little Sisters]

Marty Lederman

It's been almost a year since my last series of posts on the fallout from Hobby Lobby--in particular, on the challenges by nonprofit organizations to the government's augmented religious accommodation.  (See my posts of July 18, July 24 and August 22 at this link.)

A lot has happened since then, and further Supreme Court review is now a distinct possibility (although hardly inevitable).  And so, here's a post devoted to catching up, in three parts.  First, a quick note on the government's new final rules regarding the religious accommodation (including its extension to some for-profit employers such as Hobby Lobby, Inc.).  Second, a summary of the courts of appeals' treatment of the nonprofit challenges.  And third, I'll discuss the handful of cert. petitions that already have been filed in the nonprofit cases--with particular emphasis on the theories of complicity that those petitions allege in support of the argument that the accommodation imposes a "substantial burden" on the plaintiffs' religious exercise.

Before getting to all of that, here's one other noteworthy development:  In October, the New England Journal of Medicine published a study indicating that teenagers' cost-free access to long-acting, reversible contraceptive methods, including intrauterine devices (IUDs) and implants, can have a dramatic impact on the rates of unwanted pregnancies, births and abortions.
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Wednesday, July 15, 2015

Graduate Conference in Public Law, University of Texas at Austin, September 24-26, 2015

JB

The Department of Government at the University of Texas, Austin invites submissions for the second annual Graduate Conference in Public Law, to be held September 24-26, 2015.

The conference welcomes abstracts on all aspects of public law, including but not limited to:
• Security and International Law
• Human Rights
• American and Comparative Constitutionalism
• Jurisprudence and Judicial Behavior
• Statutory Design and Implementation

Details are available here.

Tuesday, July 14, 2015

The Constitution Writ Large, Part Two

Guest Blogger

Larry Tribe

[This is the second part of Professor Tribe's Jackson Lecture delivered on July 8, 2015, at the Chautauqua Institution in Chautauqua, New York. Part One appears here.]

Moved by the tragedy in Charleston and the inspiring response of forgiveness that the victims’ families displayed, there has been a national tidal wave to take down the emblematic Confederate Flag from one State Capitol after another. What I’m suggesting here is that the tidal wave was too long in coming, and that the Constitution itself requires that tidal wave to continue – and requires it to extend even to State-issued vanity plates. To grasp this constitutional truth we must look, as Jackson would have looked in Zivotofsky, beyond formal categories to the real-world effects of a symbol, and deny government even the option of speaking in a way that significantly threatens to silence vulnerable groups.

Jackson would’ve had plenty of doctrinal support for treating government approval of racist practices as itself a denial of the Equal Protection of the Laws:

Recall Korematsu v. United States, the case in which the Court reviewed military orders requiring tens of thousands of American citizens of Japanese ancestry to surrender up to military authorities for indeterminate confinement in detention camps – or be deemed criminals. Jackson dissented from the Court’s opinion upholding the orders and Fred Korematsu’s conviction for violating them. What troubled the Justice most was that the Court was giving manifestly racist military orders its constitutional blessing, sending the Nation and future decision-makers a MESSAGE that the Constitution tolerates racism by our government.

Jackson insisted on viewing governmental messages through the eyes of those who would receive them and feel the full brunt of their impact.

That was the salient insight at the heart of Jackson’s Barnette opinion, which was all about the necessity, under our Constitution, of avoiding any governmental practice that puts down or silences some groups by proclaiming the supremacy of others.

The concurring opinion Jackson drafted but never published in Brown v. Board of Education suggests that it was the message of White Supremacy that he found most clearly unconstitutional about racial segregation by force of law.

When the Court extended Brown’s principles in 1967 to anti-miscegenation laws in Loving v. Virginia, it emphasized that, even if Virginia’s laws formally treated Whites and Blacks the same way, it was not free under our Constitution to proclaim Whites the Master Race.

So too, Jackson might very well have said that the demand made by the Sons of Confederate Veterans may be rejected – because it must be rejected. If the Reconstruction Amendments’ promise of equal citizenship means anything, it means that no branch or level of government may issue an official message that all but disenfranchises some citizens, telling them they are inferior to others.

We saw that promise again realized in the Court’s Obergefell decision. At its heart was the Court’s recognition that telling same-sex couples that they’re unfit to share in the institution of civil marriage sends LGBT individuals an official message of inferiority – teaching a lesson government officials are forbidden to teach, whatever their intentions.

Read more »

Monday, July 13, 2015

The Constitution Writ Large, Part One

Guest Blogger

Larry Tribe

[This is the first part of Professor Tribe's Jackson Lecture delivered on July 8, 2015, at the Chautauqua Institution in Chautauqua, New York. Part Two will appear tomorrow.]


Thanks so much, John, for that too-generous introduction. And thanks to the Chautauqua Institution for making this day possible and to Greg Peterson of the Jackson Center for your terrific hospitality.  I’m especially grateful to all of you who are here this (sunny? rainy?) afternoon.  

It’s a great privilege to be delivering this annual lecture in honor of Robert H. Jackson. At his high school graduation over a century ago, Jackson compared this lovely place on the shores of Chautauqua Lake to a “little city . . . built upon hills and set gem-like within the seven encircling ends of a silver stream.”

The towering figures who have spoken in this magical setting, which Jackson described as “so cunningly fashioned by Nature’s matchless handicraft” – and the extraordinary man this lecture series honors – present a formidable challenge for anyone who steps to this podium – especially because, as you all know, we’re surrounded here by historians and experts on Jackson’s jurisprudence.  So, just to set the record straight, I am neither a Jackson historian, nor an expert on all things Jacksonian. Nor have I ever played one on TV!

But, like many others, I’ve greatly admired Robert Jackson ever since I was in my twenties. What grabbed me first, I must confess, was his wickedly clever turns of phrase – a way of expressing himself that, as the late Louis Jaffe wrote, was “magnificent and athletic in exposition, powerful and ingenious in argument, racy, sardonic, alive with the passion and wit of his personality.”

Instead of saying he had changed his mind, Jackson would say: “the matter does not appear to me now the way it appears to have appeared to me then,” or “I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.” And he’d wind up with: “If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all.”

Winston Churchill once said: “Words are the only things that last forever.” And a word, as Justice Holmes wrote, is but the “skin of a living thought.” It wasn’t just the freshness of Justice Jackson’s words that made his opinions unforgettable. It was the vibrancy of the living thoughts embedded in those words that made them so worthy of being remembered. They endure because the ideas they embody reach out to us beyond the frame defined by their particular context, the way Mona Lisa’s eyes famously follow us as we cross the room in front of her portrait.

The timelessness of Jackson’s thought was underscored when the second half of June arrived, with its series of thunderclaps – momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions.

Read more »

Wednesday, July 08, 2015

Constitutional Problem-Solving

Joseph Fishkin

In an end-of-the-term flurry that was not lacking in forceful dissents, Chief Justice Roberts’ dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission [Legislature v AIRC] certainly held its own. (In case some readers were unsure how to keep score at home, Justice Scalia, writing separately, opined that the Roberts dissent he joined was “devastating.”) One moment of particularly high dudgeon stood out to me: the Chief’s back-of-the-hand dismissal of the argument of the first page or so of the majority opinion. “The majority begins by discussing policy,” he writes, “I begin with the Constitution.” Elsewhere he accuses the majority opinion of consisting in substantial part of “naked appeals to public policy.” What he’s mainly talking about is the start of Justice Ginsburg’s majority opinion. It reads as follows:

This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power. “[P]artisan gerrymanders,” this Court has recognized, “[are incompatible] with democratic principles.” Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality opinion); id., at 316 (Kennedy, J., concurring in judgment). Even so, the Court in Vieth did not grant relief on the plaintiffs’ partisan gerrymander claim. The plurality held the matter nonjusticiable. Id., at 281. Justice Kennedy found no standard workable in that case, but left open the possibility that a suitable standard might be identified in later litigation. Id., at 317. 

Legislature v. AIRC is not a partisan gerrymandering suit, but a case about the Elections Clause. That clause says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The question in Legislature v. AIRC was whether the phrase “by the Legislature thereof” means independent redistricting commissions like Arizona’s are unconstitutional. The majority and dissent agree that this is what the case is about. But they seem to disagree in an interesting way, not fully spelled out by either side, about the relationship between this question and the question in Vieth.

In Chief Justice Roberts’ view, the problem of partisan gerrymandering is a “policy” problem rather than a constitutional problem. In other words: Partisan gerrymandering is something we might all agree is not good. It would be nice to have less of it. But there are lots of things it would be nice to have less of—traffic jams, for instance. Rain on the Fourth of July. We do not alter our readings of the Constitution to achieve such goals. On this view, reducing partisan gerrymandering might be a “noble” aspiration, but whatever its merits, it is a policy goal external to the Constitution, and it would be improper to allow such a policy goal to distort constitutional interpretation. Roberts draws this line sharply, complaining that the majority opinion shows “greater concern about redistricting practices than about the meaning of the Constitution.”

Justice Ginsburg obviously sees it differently. Her choice to open the opinion with the paragraph quoted above says as much. But Ginsburg never exactly spells out her answer to the “policy” charge. To understand how that side of the argument runs, it helps to remember exactly what happened in Vieth.

Vieth left partisan gerrymandering in a kind of doctrinal limbo: it is a constitutional wrong without a clear remedy. Five Justices (the four liberals + Kennedy) believed that there could be some judicial remedy in the future. The other four did not. But, all nine signed opinions that suggested that partisan gerrymandering is a fundamental problem for our constitutional order—a phenomenon “incompatible . . . with democratic principles.” (That particular sentence, which Ginsburg quotes above, is not from any of the liberal dissents or Kennedy—it’s from Justice Scalia. Scalia is in turn paraphrasing Souter; he adds, “We do not disagree.”). In other words, the divide in Vieth was not really about whether partisan gerrymandering was a constitutional problem. It was about whether courts had a judicially manageable solution. At the moment, it seems like they don’t.

This raises an important question. What is a constitutional problem without a judicial solution? We are living in an era in which the Supreme Court is so super-supreme, so utterly dominant in its authoritative command of the field of constitutional interpretation, that this question may sound almost like a philosophical riddle. (If part of the Constitution falls in the forest and no judiciary is there to hear it, does it make a sound…?) It is actually a little counterintuitive today to think of how any part of the Constitution could be alive and yet not directly enforceable by courts. Holdings of nonjusticiability, in this light, can read almost as though they say that the relevant constitutional provision is mere rhetoric, aspirational talk without legal consequence. In Vieth there were arguably only four votes for nonjusticiability, but even there, the court’s inability to articulate a rule for judicial intervention feels almost like a statement that partisan gerrymandering is not really unconstitutional. In popular culture and even in our present legal culture, we tend these days to think of the real Constitution as the judicially enforced Constitution, so if something is really unconstitutional, that would mean some party can go to court and get an injunction against it, right?

This way of thinking is a big mistake. And it’s one with far-reaching and occasionally surprising consequences, not only outside the courts but also (and this is my focus in the rest of this post), inside the courts. Thinking this way not only impedes non-judicial actors from solving constitutional problems. It also impedes courts from solving constitutional problems.

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Monday, July 06, 2015

Richard Glossip

Mark Graber

The Supreme Court’s decision in Glossip v. Gross (2015) cleared the way for Oklahoma to execute a person who may be innocent of murder and for whom Oklahoma admits merits a lesser sentence.  The precise issue in Glossip was whether the manner in which Oklahoma executes persons constitutes cruel and unusual punishment.  One unfortunate consequence was that no justice mentioned the disturbing facts of Glossip’s case, not even Justice Breyer, who wrote a powerful dissent urging the justices to rethink the constitutionality of capital punishment. In fact, Richard Glossip is Exhibit A for problems of reliability and fairness with the process that sentences people to death, particularly when prosecutors rely heavily on plea-bargaining with one defendant in order to convict a defendant who refused to admit guilt.

On January 6, 1997, Barry Van Treese, the owner of the Best Budget Inn in Oklahoma City was brutally beaten to death with a baseball bat.  Justin Sneed, a handyman at the inn, confessed to the murder.  In return for a life sentence, he agreed to testify that Glossip, then managing the Best Budget Inn, had agreed to pay him $10,000 to murder Van Treese.  At trial, Glossip admitted that, scared, he had helped cover up the murder after the fact, but denied either encouraging or soliciting Sneed to commit murder.  He was nevertheless found guilty and sentenced to death.  That verdict was reversed by the Oklahoma Supreme Court on the ground that counsel was ineffective.  More than seven years after the murder was committed, a second jury found Glossip guilty and sentenced him to death.  The Oklahoma Supreme Court sustained this death sentence, with two justices dissenting on the ground that prosecutorial behavior had unduly biased the jury.  Throughout this period, Glossip was informed, possibly repeatedly, that he would not be executed and be eligible for parole in twenty years if he confessed to the murder.

What is wrong with this picture?

Richard Glossip is likely to be executed even though the evidence that he solicited the murder of Barry Van Treese, interpreted with a great deal of charity, barely gets over the reasonable doubt hurdle, if that.  Consider how the Supreme Court of Oklahoma characterized the evidence when finding Glossip’s first trial counsel incompetent.

The State concedes that the only “direct evidence” connecting Appellant to the murder was Sneed’s trial testimony.  No forensic evidence links Appellant to murder and no compelling evidence corroborated Sneed’s testimony that Appellant was the mastermind behind the murder.

The evidence at trial tending to corroborate Sneed’s testimony was extremely weak.

Richard Glossip is likely to be executed, even though the Oklahoma Supreme Court implied if not stated outright that, given the inconsistencies in the trial record and police reports in his first trial, and decent counsel would have beaten the murder charge, if not the entire conviction. 

Richard Glossip is likely to be executed even though the witnesses at his second trial were trying to recall events that happened more than seven years ago and at least two justices not known for their liberalism think prosecutorial misconduct biased the jury.

Richard Glossip is likely to be executed even though Justin Sneed, who provided the only evidence that directly ties Glossip to the murder of Barry Van Treese, was induced to testify by the promise that he would not be executed.  Not exactly the most reliable testimony. 

Richard Glossip is likely to be executed because no physical evidence can exonerate him.  There is no physical evidence in this case.  The central issue is whether Justin Sneed lied or exaggerated in order to save his skin.

Richard Glossip is likely to be executed even though Oklahoma has decided not to execute the person who actually committed the murder, Justin Sneed.  This seems particularly arbitrary given that one of the aggravating factors in the case was the brutality of the murder and Sneed was the person who actually committed the murder.

Richard Glossip is likely to be executed even though for almost a decade, Oklahoma was prepared to promise Glossip that he would not be executed if he confessed to the crime.  Glossip is being executed because he exercised his constitutional right to a jury trial.

In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.  Oklahoma police quickly came to the conclusion that Sneed certainly murdered Van Treese and that Glossip may have solicited the murder.  That clear physical evidence demonstrated that Sneed was the perpetrator perversely enhanced Sneed’s plea bargaining leverage.  Oklahoma needed Sneed to testify against Glossip.  They had no case otherwise.  They did not need Glossip to testify against Sneed.  The result is that the person who committed a murder beyond all reasonable doubt will not be executed, while the person who may or may not have solicited that murder is out of appeals.

Sunday, July 05, 2015

Vallier on liberal politics and public faith

Andrew Koppelman

One of the smartest young philosophers working in the area of law and religion is Kevin Vallier, who has just published his first book, Liberal Politics and Public Faith: Beyond Separation.  It is an important and distinctive argument,with which even those who disagree will need to engage.  Here is the jacket description:

 In the eyes of many, liberalism requires the aggressive secularization of social institutions, especially public media and public schools. The unfortunate result is that many Americans have become alienated from the liberal tradition because they believe it threatens their most sacred forms of life. This was not always the case: in American history, the relation between liberalism and religion has often been one of mutual respect and support. In Liberal Politics and Public Faith: Beyond Separation, Kevin Vallier attempts to reestablish mutual respect by developing a liberal political theory that avoids the standard liberal hostility to religious voices in public life. He claims that the dominant form of academic liberalism, public reason liberalism, is far friendlier to religious influences in public life than either its proponents or detractors suppose. The best interpretation of public reason, convergence liberalism, rejects the much-derided “privatization” of religious belief, instead viewing religious contributions to politics as a resource for liberal political institutions. Many books reject privatization, Liberal Politics and Public Faith: Beyond Separation is unique in doing so on liberal grounds.

Vallier discusses the book in a podcast interview at New Books in Philosophy, here. 


Friday, July 03, 2015

The Remarkable Disappearance of State Justifications in Obergefell

Marty Lederman

Over at the Slate "Breakfast Table," I have a post describing the handful of biggest surprises in what was in fact (or so I argue) a Supreme Court Term in which the Justices generally acted according to predictable form.

One of the most remarkable aspects of the Term, I argue there, is what the Court didn't do in Obergefell--namely, devote much attention at all to the states' asserted justifications for excluding same-sex couples from the institution of civil marriage.  That lacuna was no mere oversight--it was a function of the fact that the articulated justifications were threadbare, and that any legitimate justifications were virtually nonexistent.  For that reason, I argue, the impassioned opinions of the dissenting Justices will have very little traction in the years to come--they elide the critical point--and the Court's judgment will, in short order, be very widely embraced as self-evidently correct.  To be sure, there is, and will remain, a substantial minority of Americans who oppose SSM.  But the reasons they do so--primarily, moral disapproval, biblical injunction, anxiety about homosexuality, and occasionally even animus--are unavailable to the states as legitimate justifications; and therefore it's understandable that those justifications--the actual grounds for state discrimination--do not even make an appearance in the Obergefell opinions.

Here's a slightly amended version of the Obergefell portion of my Slate post:

Read more »

Thursday, July 02, 2015

Dignity and same-sex marriage

Andrew Koppelman



As everyone expected, the Supreme Court decided that same-sex couples have a right to marry by a 5-4 margin, with Anthony Kennedy writing a majority opinion full of vague talk about dignity.  His opinion relied on his strange idea that marriage is fundamentally about conferring dignity on people.  There is something to this.  Everyone understands that dignity was at stake in this decision.  (The headline on the front page of the New York Times the next day was simply “Equal Dignity,” quoting those words from the opinion.)  But he delivers that news in a garbled way.

I try to ungarble it in a new column in Salon, here.

What is a Legislature?

JB

The constitutional question in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC) is whether the State of Arizona can transfer the power to redistrict to an independent commission, which was created by a constitutional amendment passed through the initiative process.  The Arizona Legislature objected to having this power taken away from it. It argued that this violated the Elections Clause of Art. I, § 4, cl. 1, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”  The Court ruled 5-4, in an opinion by Justice Ginsburg, that the Elections Clause allowed Arizona to use an independent commission for creating and revising Congressional districts. (No one on the Court denied that Arizona could use an independent commission to create state legislative districts).

 AIRC raises a recurrent problem in constitutional interpretation. How do we interpret words in the text for situations that the framers and ratifiers didn't expect or didn’t even imagine would occur?  The most obvious examples involve new technologies. Thus, in Kyllo v. United States, 533 U.S. 27 (2001), the Court held that using a thermal imaging device constituted a "search," even though government agents never breached the wall of the defendant's house. In Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1877), the court held that Congress could regulate telegraph communication as part of its powers to regulate foreign and interstate "commerce."  In each case the Court looked to what it regarded as the purposes behind the  clause to apply it to unforeseen situations.

AIRC concerns a political innovation rather than a technological innovation—the development of the initiative and referendum in the late 19th and early 20th centuries to wrest some law-making power away from legislatures or to check legislative misbehavior. These innovations responded to the perceived corruption of representative democracy during the Gilded Age. Because legislatures were corrupt or easily bought off by powerful interests, reformers sought to return important questions to the public.

The framers did not expect that states would implement direct democracy. Many of them knew about similar institutions in ancient democracies, and they distrusted direct rule by the public. They were, however, worried about the problem of representatives entrenching themselves so that they could not be dislodged, even when they no longer commanded majority support.  This is reflected not only in the Elections Clause, but also in Article IV's general guarantee of republican government in the states.

The majority argues that “the Legislature” includes the people of Arizona, who have the power to pass laws, and who have delegated their legislative power to redistrict to the AIRC. It argues that “the Legislature” should be understood functionally, as we understand words like “search” in the Fourth Amendment. The dissent argues that the people of Arizona are not part of “the Legislature.” A legislature must be a representative body, and by definition the people of Arizona are not representatives. (That conclusion is not completely obvious: the voters of Arizona actually do virtually represent everyone in the population who cannot vote, like children, or who do not vote--in some years, a very substantial proportion of the population.)

But there also is a third possibility: that Arizona has more than one legislative body.

Read more »

Wednesday, July 01, 2015

A Telling Substitution

Gerard N. Magliocca

I want to make a small observation about the Court's opinion on same-sex marriage.  In West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson made this famous observation about the Bill of Rights:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

Here is how the same quote is reproduced in Obergefell v. Hodges:

"The idea of the Constitution 'was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.'

I think that the latter is not an accurate paraphrase or statement.  The idea of the Constitution was at least as much about enabling democratic politics and reserving certain subjects to state politics.  The idea of the Bill of Rights, by contrast, is much more about judicial review and minority rights.

Now you may consider the comment thread an open forum about the decision.

Obergefell on Conscience

Douglas NeJaime

Douglas NeJaime & Reva Siegel

As religious liberty objections to marriage continue to mount, what does Obergefell v. Hodges have to say?

Opponents have long invoked religious liberty as an argument against same-sex marriage. As an amicus brief submitted in Obergefell by religious groups, including the National Association of Evangelicals, the Mormon Church, and the Southern Baptist Convention, argued: “Recognizing a new right to same-sex marriage would harm religious liberty.” The Court clearly rejected this religious liberty argument against same-sex marriage.

But what about claims for religious exemptions for those who object that doing business with persons in a same-sex marriage—for example, providing the couple wedding flowers or employment benefits—might make the objector complicit in the assertedly sinful conduct of another? Complicity-based conscience claims of this kind have dominated debates over state RFRAs in Arizona and Indiana. The grounds on which Justice Kennedy rejected the religious liberty argument against same-sex marriage suggest important limits on these claims to religious exemptions.

Writing for the Court, Justice Kennedy was careful not to “disparage” those “who deem same-sex marriage to be wrong . . . based on decent and honorable religious . . . premises”; indeed, Windsor’s animus arguments, which inspired protests from those with traditional religious beliefs about marriage, are nowhere to be found in Obergefell. Yet Justice Kennedy warned that “the necessary consequence” of state sanction of religious opposition to same-sex marriage “is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” He is concerned about not only the material but also the dignitary harms inflicted on same-sex couples when the state sanctions religious opposition to same-sex marriage.

This reasoning speaks volumes about the emerging conflicts over religious exemptions and LGBT equality. Religious liberty cases regularly recognize third-party harm as a limitation on accommodation. In Burwell v. Hobby Lobby Stores, the Court’s 2014 decision granting a religious accommodation to employers that objected to providing employees with health insurance covering contraception, Justice Kennedy concurred, warning that religious accommodations must not impose significant harms on other citizens. In fact, his concern about third-party harm guided the five-justice majority to a decision that recognized the religious claims of the employers on the assumption of “zero” effect on female employees. As we have shown, the Court decided Hobby Lobby on narrow tailoring grounds that illuminate the federal RFRA’s application more generally.

Chief Justice Roberts also read Justice Kennedy’s discussion of religious liberty objections to marriage as having import beyond the questions at issue in Obergefell. In dissent, the Chief Justice found the majority’s “assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same- sex marriage . . . hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demea[n] or stigmatiz[e]’ same-sex couples.” Worrying that the Court’s decision “creates serious questions about religious liberty,” the Chief Justice implicitly recognized how Justice Kennedy’s concern with third-party harm, including dignitary harm, counsels against broad exemptions.

We argue that concern about third-party harm should guide decisions about whether and how to accommodate religious liberty claims in our American Prospect essay, Conscience and the Culture Wars, and our recent article, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, in the Yale Law Journal. There we devote special attention to the kinds of religious exemption claims arising in the contexts of abortion, contraception, and same-sex marriage. Many claimants assert what we call “complicity-based conscience claims”—objecting to being made complicit in the assertedly sinful conduct of their fellow citizens. So, for instance, business owners refuse to provide goods and services to same-sex couples because they object to being made complicit in relationships they deem sinful. Accommodating claims of this kind can inflict harms on third parties. These include material harms—obstructing access to goods and services—and dignitary harms—stigmatizing other citizens as sinners. Justice Kennedy’s approach in Obergefell suggests that these harms matter in deciding whether and how to accommodate claims for religious exemptions.

Fragile Democracies: An Interview with Sam Issacharoff

JB

I recently spoke with Sam Issacharoff (NYU Law School) about his new book, Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge University Press, 2015).


JB: You are one of the foremost experts on American election law. How did you get interested in the  constitutional problems of emerging democracies?

Sam Issacharoff: Two events in the U.S. had the paradoxical effect of directing my attention abroad.  The precipitating events were the debates over the trade-offs between liberty and security in the wake of 9/11 and the role of the Court in resolving the contested presidential election of 2000.  Each struck me as a familiar point of crisis in democracies: a threat to the political openness of democratic politics, and a succession crisis and the risk of a vacuum of leadership.   I realized that I did not have a good command of how these matters were dealt with in countries that faced real threats to security more regularly.  And, I watched with some amazement as the Mexican Supreme Electoral Tribunal handled the 2006 presidential election contest (their equivalent of Bush v. Gore) with relative ease.  The more I looked at newly minted democracies, as in Mexico and South Africa, the more I was struck by the generalizable pattern of courts serving as stabilizing institutions during periods of what I would term democratic fragility.

JB: A key claim of the book is that courts can play an important role in keeping emerging democracies from backsliding into authoritarianism and dictatorship.  Why are courts able to do this?

Sam Issacharoff: The paradoxical claim of the book is that courts can help stabilize democracy at the moments when political power is most contested.  Since courts notoriously lack the power of the purse or the sword, the paradox is why there should be any expectation that they can play this role.  In many instances when courts have tried to intercede, they have failed catastrophically, with Peru and Russia as ready examples.  But there are too many counterexamples of courts reining in political power and that demands some explanation.  The main one offered in the book is that courts help lower the stakes of what is up for grabs in any election.  The problem of the post-colonial periods of state consolidation of the twentieth century, and particularly the third wave of democracy after the fall of the Soviet Union, is that most of the new countries were democracies without a well-established demos, to borrow from Joseph Weiler.  An election in such circumstances risks becoming a one-shot referendum on who will hold state power to do in the rivals.  An earlier effort to lower the risk was based on consociationalism, formalized power sharing.  The new efforts at democracy try to lower the downside risk by imposing a strong set of constitutional constraints on what governments can do.  Constitutionalism is then entrusted to courts that have strong powers of judicial review and offer an institutional ally to those that stand to lose in the electoral process.  This is a strategy I call “democratic hedging.”

JB: Are courts able to help calm tensions based on ethnic or religious differences within a fledgling democracy? Or does their major contribution lie elsewhere?

Sam Issacharoff: I do not think that courts have a proven track record of lowering historic antagonisms based on race, religion, or ethnicity – at least not as such, and not in the short time frame of nascent democracies.  They are able to do two things, however.  First, they can improve the prospects of a second election  in which a victorious party can be judged anew based on its results, and may be dislodged.  This is critically important because it gives subgroups within even sectional parties an incentive to conform their platform to what the courts will permit to be permitted in the electoral arena.  Turkey and India are leading examples of this phenomenon.  Second, they can protect disfavored groups from exclusion through lustration, linguistic requirements, and the sheer power of an over-weaning executive, as exemplified by the Colombian Constitutional Court’s confrontation with President Uribe in 2010.

JB: What about situations in which a revolutionary party takes over and establishes a democracy for the first time? Is it realistic to think that courts can stand up to the leaders of these movements?

Sam Issacharoff: The consolidation of one-partyism, as I term it in the book, in the aftermath of an overthrow of autocracy is a genuine risk.  One-party regimes begin to exhibit pathological cronyism, corruption and clientelism, each of which further diminishes the prospects for successful democratic governance.  Further, courts have had the most success in shoring up democracy when there is a contest for power and the court becomes an ally of an out-group in resisting consolidation of power.  And yet there are counterexamples where courts have successfully resisted, at least for a time, the pull of a dominant party.  The best example is South Africa, but that was contingent on the political will of Nelson Mandela and the first generation of ANC leadership.  But the Indian court resisted the Congress Party’s efforts to exploit emergency rule, and the Mexican courts were instrumental in breaking more than a half century of PRI hegemony.  At the same time, most of the fledgling democracies do not have as clear a party with a mandate as did South Africa, India or Mexico.

JB: What keeps political leaders from just replacing judges with their political allies so that they can do what they want? Do courts need extra sources of support--for example from the army, business, or civil society--in order to keep democracy working?

Sam Issacharoff: The simplest answer is that in the long run, courts will succumb to consolidated political power.  The issue is what institutional buffers will emerge in the period of the consolidation of power.  Some of the institutional buffers are created internally in efforts to guarantee judicial independence in the appointment process.  But the critical sources of support are likely to come from civil society, other domestic institutions, including the military, and from international sources of authority, both judicial and economic.  The prospect of retaliating against courts too overtly may have serious repercussions in terms on international economic relations.  It is only a quarter-century since most of these new democracies were created.  They largely failed in central Asia, but courts have maintained strong independence in Poland and the Czech Republic.  The simple answer to the question is that courts have proven highly vulnerable, as in Hungary, but have still shown surprising resilience.

JB: Critics of judicial review have long argued that it is inconsistent with democracy, and actually undermines it in the long run. How does your argument engage with those critics?

Sam Issacharoff: We have long debated the issue of judicial review and the countermajoritarian difficulty in the U.S. – perhaps too long.  The new democracies of the 20th and 21st century uniformly created constitutional courts whose central function was to check the exercise of power by the political branches.  In addition, most of these new democracies entrusted to these courts not only the power of judicial review, but the power to be the central administrative body over elections.  The gamble is that democracy would be stabilized by guaranteeing limitations on government and repeat elections.  We should be cautious about generalizing from the stable democracy of the U.S. to the deeply contested societies of the post-1989 world.   I would prefer to see the question whether strong court constitutionalism can sustain democracy in fractured societies as an empirical one-- of "does it work?"  If it does, we can indulge the theoretical question of the legitimacy of how judicial power is exercised, but down the road a ways.
 

Tuesday, June 30, 2015

Hobby Lobby’s Bitter Anniversary

Nelson Tebbe


Nelson Tebbe, Richard Schragger, and Micah Schwartzman

A year ago today, the Supreme Court handed down Hobby Lobby. There, famously, the Court extended a religion accommodation to a business corporation, freeing it from the legal obligation to include coverage for certain contraceptives in its employee health plan. At the time, the Court strongly implied that the impact on employees would be “precisely zero.”

Yet today, a full year after the Court issued that statement, Hobby Lobby’s employees are still not receiving coverage. As we explained in a previous post, the Obama Administration has not yet implemented the solution that the Court suggested in its opinion, perhaps because of understandable difficulties defining what counts as a closely-held corporation (that definition matters because the Court limited its holding to such entities). Moreover, any solution that is ultimately provided cannot be retroactive, according to the Court’s own doctrine. And Hobby Lobby may well have stopped providing contraception coverage even before the Supreme Court ratified its ability to do so.

In the interim, employees must be suffering harm that is serious and irreparable. As Judge Posner said in his opinion last month for the Seventh Circuit,

About half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Many of the unintended pregnancies are teen pregnancies, and contraceptive use has been found to be positively correlated with decreased teen pregnancy. Because out-of-pocket expenditures on female contraceptives can be substantial for many women, the provision of such contraceptives without cost to the user can be expected to increase contraceptive use and so reduce the number both of unintended pregnancies and of abortions. Furthermore, “women who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.”

(Citations to the scientific literature omitted; Judge Posner also cites to the discussion of the benefits of contraception coverage without cost sharing in the D.C. Circuit's opinion in Priests for Life.) Although some commentators have characterized this harm to employees as merely temporary or otherwise negligible, that view is seeming more and more implausible.

It should be noted that many of the for-profit corporations that objected to the contraceptive mandate opposed all forms of contraception, not only those drugs that Hobby Lobby’s owners and others believed to be abortifacients. Furthermore, since Hobby Lobby was decided, many companies have received permanent injunctions that exempt them from paying for all forms of contraception. The Becket Fund lists 47 injunctions granted to for-profit companies, several of which object to providing broader contraception coverage. See, for example, this injunction granted to Autocam Medical, LLC, a company with more than 600 employees in the U.S. The controversy around Hobby Lobby was never only about abortifacients. The scope of the litigation has always extended more broadly to contraception generally.

In granting exemptions for Hobby Lobby and other for-profits, the Court should have conditioned relief on absence of harm to their employees. Under that regime, companies could win accommodations but only if and when a victory would not impose harm on third parties. As we have been arguing, along with others, the imperative of avoiding harm to others is required by both the Establishment Clause and free exercise provisions. Without requiring protection of third parties, the Court has set the conditions for ongoing constitutional and statutory violations.

Happy birthday, Hobby Lobby.

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