an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is Obama a reconstructive president? We'll only know later on.
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.
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.
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.
Update on the contraception coverage regulations and litigation [Further UPDATED to add fifth cert. petition, in Little Sisters]
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. Read more » Posted
by Marty Lederman [link]
Wednesday, July 15, 2015
Graduate Conference in Public Law, University of Texas at Austin, September 24-26, 2015
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
[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 Barnetteopinion, 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.
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.
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.
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
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
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
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
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. Posted
by Mark Graber [link]
Sunday, July 05, 2015
Vallier on liberal politics and public faith
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.
The Remarkable Disappearance of State Justifications in Obergefell
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:
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
I try to ungarble it in a new column in Salon, here.
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
objected to having this power taken away from it. It argued that this
Elections Clause of Art. I, § 4, cl. 1, which provides that “The Times,
and Manner of holding Elections for Senators and Representatives, shall
prescribed in each State by the Legislature thereof; but the Congress
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.
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.
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.
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. Posted
by JB [link]
Tuesday, June 30, 2015
Hobby Lobby’s Bitter Anniversary
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
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
(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