Friday, October 30, 2020

If the Challengers Prevail on the Merits in California v. Texas, What Remedy? And What Happens to the Rest of the ACA?

Jason Mazzone

Let's say that in California v. Texas the Supreme Court holds that zeroing out of the potential tax penalty for failure to maintain the Affordable Care Act's specified health insurance coverage rendered unconstitutional the part of the Act providing that individuals “shall” maintain insurance coverage. What next? Over at Justia today Vik Amar, Evan Caminker and I provide our own take on available remedies and our own analysis of severability and how it should apply in California v. Texas. Our approach makes several key points that we think should inform the Court's remedial analysis but that have not been made in any of the briefs in the case.  

Thursday, October 29, 2020

SCOTUS and the State Courts in Election Cases

Jason Mazzone

Following up on my earlier joint post today on the election cases (and now writing by myself), I want to flag the compelling essay Akhil Amar, Vik Amar and Neil Katyal published yesterday in The New York Times under the title "The Supreme Court Should Not Muck Around in State Election Laws." The essay carefully draws some important lines between federal courts and federal law on one hand and state courts and state law on the other and concludes: "One Bush v. Gore is enough." Over at National Review, Ed Whalen has a critical response. I reached out to Akhil for a comment. He said (with permission to print): 

Vik and I have been thinking about this specific issue for more than twenty years and Ed has not. Vik and I are scholars on this topic and Ed is not. Vik and I remain confident in our analysis. Readers must judge for themselves, of course, but as we see it, this is an easy case, once the issues are fully analyzed, as Vik shows in his brilliant Justia column (which also cites and hyperlinks to earlier academic writings by each of us, including my 2009 Dunwoody Lecture at the University of Florida on Bush v. Gore).

More on these issues in the coming days.

Supreme Court Decisions Last Night in the Pennsylvania and North Carolina Election Cases (with Vik Amar)

Jason Mazzone

I am writing this post with my colleague Vik Amar.

Last night the Supreme Court issued rulings in two election cases. We write in response to the statement issued by Justice Alito in the Pennsylvania case and the dissent by Justice Gorsuch in the North Carolina case

In the Pennsylvania case, the Court rejected a request by Pennsylvania Republicans to expedite (and consider before the election) their challenge to a ruling by the Pennsylvania Supreme Court requiring election officials to count mail-in ballots received within three days after Election Day. In a statement, Justice Alito (joined by Justices Thomas and Gorsuch) wrote that while “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution” and it would be “highly desirable” for the Court to review that decision before the election, “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.” Nonetheless, Alito observed, the issue of timing “does not mean that the state court decision must escape our review” because the petition for certiorari remains pending, the state has agreed to segregate ballots received after 8 pm on Election Day, and, if needed, the Court can impose “a targeted remedy” after the election has occurred. 

We see at least two problems with Alito’s suggestion. 

Read more »

Wednesday, October 28, 2020

Cloture Reform in the Senate and the Evolution of Norms

Gerard N. Magliocca

An assumption underlying many of the proposals for action in the next Congress is that the Senate will either abolish or significantly modify the filibuster. While I think that changing the filibuster is a good idea, I doubt that this will actually happen. Even if Democrats win control of the Senate, that does not mean that there will be a majority in favor of cloture reform. 

There is also a dynamic aspect to the prospects for cloture reform. Mitch McConnell is a smart guy. He will understand that the surest way to convince a majority to end the filibuster would be to use that tactic frequently. Thus, he will probably refrain from doing so except on legislation that is especially dicey for Democrats and force those issues to be the ones where Democrats must reform cloture. As a result, more legislation may get enacted because sixty votes will not always be required, but this will not include things like repealing the ratification deadline for the ERA, making the District of Columbia a state, or other stuff on the fantasy list. On those measures, getting rid of the filibuster and passing a bill will be terribly hard.

The irony is that we may therefore see a restoration of a norm of filibuster restraint. Not because of some gentlemanly agreement about fair play, but because the balance of political forces will create a new reality. A norms of restraint can be an unwritten rule of the game shared by the players for philosophical reasons. Or such a norm can be a rational response to some greater threat that looms if restraint is not exercised.

The same thought, of course, can apply to restraint in the exercise of judicial review. A judge could have a jurisprudential commitment to that idea. Or she can adopt that approach out of concern about the political ramifications of not exercising restraint. There are many examples where the Justices (or at least enough of them) decided to back down rather than risk the wrath of Congress even though those Justices lacked a deferential disposition. They were simply ceding ground for institutional self-preservation. 

Finally, these two tactical considerations (from Senate Republicans and from the Supreme Court) will be mutually reinforcing in the direction of restraint. Partisan anger directed at the Court puts the filibuster at greater risk. And partisan anger directed at Senate Republicans makes Supreme Court reform more likely. Both Senate Republicans and the Court will seek to avoid those outcomes by doing less in the even that President Trump is defeated.

Panel: The Jurisprudence of Justice Ginsburg

Mark Graber

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., this Friday, October 30.  Register here.  The event is open to the public; please join us for what should be a great conversation.  A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg.  Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)


    Richard Albert (University of Texas)

    Deborah Dinner (Emory University)

    Scott Dodson (UC-Hastings)

    Atiba Ellis (Marquette University)

    Daniel Epps (Washington University--St. Louis)

    Abbe Gluck (Yale University)

    B. Jessie Hill (Case-Western Reserve University)

(Thanks to Howard Wasserman for the heads up)

How Likely is an Election Meltdown? The Importance of Down-Ballot Races

Stephen Griffin

Now that President Trump has gone there in terms of saying he hopes that counting ballots will stop on Election Day, I wanted to post a short note to raise the possibility that commentary on possible election meltdowns has been ignoring the significance, legal and otherwise, of down-ballot races.  There are many election meltdown scenarios, of course.  One that I've heard from students as I've been teaching an election law course this semester revolves around the possibility of the count being stopped somehow after Election Day.  Trump says that it should be done by the courts, although I'm not sure how that would happen.

But consider the legal impact, not only on voters who would not have their ballots counted (for what reason?) but on the literally thousands of candidates who are also on the ballot with Biden-Harris and Trump-Pence.  Of course, the entire House of Representatives is up for reelection, along with one-third of the Senate.  In addition, according to Ballotpedia, 86 of the 99 state legislative houses are also on the ballot, along with many state judge races and important ballot propositions.  Wouldn't it be important to those candidates to have a full and complete count of the vote?  Would they not have causes of action in federal court if there is any arbitraray stopping of the count contrary to law?  And if that is important, would it not be difficult to somehow stop the count for one federal race while keeping the count going for down-ballot races?  And if all of this seems ridiculous, have we not debunked one meltdown scenario?

I'm interested to hear otherwise (see email to the left), but it seems to me that the "stopping the count" scenario which Trump has just raised is one of the least likely.  The count is going to continue according to law in each state until it is done.  More is going to be needed to trigger the more dire meltdown scenarios (reviewed today by Tom Edsall in the NYT).

Tuesday, October 27, 2020

Does Harm Result When Religious Placement Agencies Close Their Doors? New Empirical Evidence from the Case of Boston Catholic Charities

Nelson Tebbe

By Netta Barak-Corren and Nelson Tebbe

On November 4, the Supreme Court of the United States will hear oral arguments in Fulton v. City of Philadelphiaan important case concerning child welfare in Philadelphia. A social welfare agency objects on religious grounds to Philadelphia’s rule requiring it to place foster children with LGBTQ parents. The agency says that if the Court rules for the city, it will close its doors and children will be harmed. We have uncovered new evidence undermining the agency’s empirical claim.   


Like other cities, Philadelphia contracts with private agencies to help it place foster children with families. One of these agencies, Catholic Social Services (CSS), is arguing that it has a constitutional right to refuse to place kids with same-sex couples, despite the city’s antidiscrimination rules. In Fulton, the Supreme Court will decide whether antidiscrimination rules like this one violate a religious organization’s right to free exercise.


All of the justices will rightly care deeply about how ruling one way or another will affect children. Knowing this, lawyers for CSS are arguing that ruling against the religious agency will cause harm. According to the Becket Fund, which represents CSS, the agency will never serve same-sex couples. If it loses in court, therefore, it will simply shut its doors. That will impact children, the lawyers argue, because it will mean fewer families available at a time when the number of foster kids is greater than the supply of homes. The Wall Street Journal editorial board has argued similarly that “[b]eyond the law, Philadelphia’s coercion hurts the city’s most vulnerable children and the families who want to care for them.”


On the other hand, Philadelphia and its lawyers are claiming exactly the opposite: that allowing the agency to exclude same-sex couples will negatively affect outcomes. Not only are same-sex couples better suited for LGBTQ children, they argue, but they also serve as foster parents at high rates and they are willing to take at-risk children. All children are better off if placement agencies refrain from systematic discrimination, on this view.


Not only does this issue of whether applying antidiscrimination causes harm matter for the Supreme Court case, but it also matters in a number of similar cases pending in lower courts. It also affects state legislatures. About eleven states have passed laws that exempt religious child placement agencies from antidiscrimination laws, and about five more are considering such laws. There too, officials will want to know how their decisions will affect children.


In all these debates, a few precedents loom large. In a handful of cities, religious agencies have actually closed rather than comply with equality laws. Often, these closings are thought to be obvious catastrophes: everyone loses when social service organizations are forced from the marketplace, it is assumed. For instance, CSS told the Supreme Court in one of its briefs that “In Boston, San Francisco, Buffalo, the District of Columbia and the State of Illinois, Catholic charities have already been forced out of foster care and adoption. Many agencies have been forced to close before litigation can run its course, and therefore protection for [CSS] here is of outsized public importance.” Lawyers affiliated with Becket have cited the same examples, cautioning courts not to rule against religious agencies. But Massachusetts and 22 other states have filed a brief arguing that the closings in Boston and elsewhere did not impact children negatively.


Who is right? We have set out to study what happened in other cities where religious agencies shut down. We have compiled a dataset of all the cities where agencies have closed their placement business rather than comply with antidiscrimination rules. Next, we are in the process of analyzing a national dataset of child outcomes to find evidence on whether the closings negatively impacted kids. Finally, we are interviewing child welfare professionals who have experience on the ground in each of these cities. 


While our research is ongoing, our preliminary findings unsettle any easy assumption that the closure of religious agencies harms vulnerable children. The evidence we have uncovered from Boston does not support the argument that closures of religious agencies generates negative effects. Although our results are not yet conclusive, they shift the burden of proof to those arguing that kids will be adversely affected if religious agencies close—and they suggest that it may not be easy to meet that burden.


Read more »

Some (Old) Thoughts on the (Re)Emerging Article II Argument About Presidential Elections

Mark Tushnet

 Justice Kavanaugh, perhaps remembering his role in Bush v. Gore, re-ups Chief Justice Rehnquist's argument there (calling it "persuasive[]") that Article II places limits on the power of state courts to interpret state statutes specifying the rules for selecting presidential electors. The argument focuses on the text: Article II says that electors shall be chosen "in such manner as the Legislature ... shall direct."

Suppose a litigant says that the statutes so specifying are unclear in some way. For example, suppose the statute books contain more than the rules about choosing electors, but rules as well about the power of the Secretary of State to implement those rules (giving the Secretary of State some discretion in interpreting the rules). Or suppose the rules about choosing electors are -- or are said to be -- unclear. Or suppose a litigant contends that the statutory rules would violate the state constitution if interpreted in one rather than another way.

In each of these cases the state supreme court could say that the words of the statute govern no matter what. For example, the court might say that the statute defining the scope of the Secretary of State's authority doesn't apply to the rules for choosing electors. If so, no problem.

But what if the state supreme court says, "You know, you're right. The Secretary of States does have interpretive discretion here, and exercised it in a manner permissible under state law." Or, maybe easier to grasp, "We assume that our legislature doesn't enact statutes that are inconsistent with the state constitution, and for that reason we interpret the statute in a way that is linguistically permissible but somewhat strained." Do these actions by the state supreme court interpreting the legislature's enactments "violate" Article II be substituting rules devised by the courts for rules "direct[ed]" by the legislature?

It's hard to see why they would, in general. There are two wrinkles. First, we can imagine an "interpretation" of the statutory language that's so creative as to amount to a substitution of a court-devised rule of a legislature-prescribed one: The state supreme court might have stretched the statute's words beyond reasonable bounds. (That's what Republicans contended the Florida Supreme Court had done in Bush v. Gore. Notably, though, a majority of the Court didn't accept that construal of the state court's action.)

Second, on review in the U.S. Supreme Court, that court is almost certainly authorized to interpret the state statutes on its own, giving the state supreme court's interpretation of the statute the weight that the interpretation is due but not being bound by the state court's interpretation. s Chief Justice Rehnquist said, that's so because the U.S.Supreme Court has to be able to control state courts that deliberately evade the federal Constitution.

This second wrinkle is different from the first one. There the U.S. Supreme Court says that the state court's interpretation is (roughly speaking) completely unreasonable. Here the U.S. Supreme Court says that, though the state court's interpretation is reasonable, it's not the best one available (taking all the relevant state law materials into account). Which is to say, it's not the one that we think is best, notwithstanding what you thought.

The first wrinkle is pretty straight-forward. The second is pretty hazardous, because -- especially in light of time pressures -- the justices of the U.S. Supreme Court aren't likely to be able to get up to speed on all the relevant state law materials. So, it's probably best for the justices to be quite strongly deferential to the state supreme court -- which means that the second wrinkle probably should be pretty much the same as the first.

(I don't think you can escape this analysis by simply citing the Arizona districting commission case and saying that Article II's reference to "the legislature" refers to every action authorized by state law -- whether by the state supreme court of the Secretary of State -- that interprets the relevant statutes, because the whole problem lies in figuring out whether the interpretive action is authorized by state law.)

Saturday, October 24, 2020

A Proposed Joint Resolution on Judicial Power

Mark Tushnet

Here's a thought in the event that there is a Biden appointed commission on court reform. What about a Joint Resolution on Judicial Power: "No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional."

Some accompanying commentary: As a Joint Resolution it has the force of law. I have little doubt that the current Supreme Court would hold it unconstitutional (even, perhaps, manifestly so -- which would raise a question sort of about self-reference) as an infringement on the judicial power not permitted by the powers to create lower federal courts and to regulate the jurisdiction of the Supreme Court, and, as applied to state courts, as not a proper means of ensuring the supremacy of federal law.

Why do it, then? Mostly as a signal to the courts about the view the political branches gave of their (that is, the courts and the political branches) respective powers. Political scientist Tom Clark and others have shown that such signals sometimes at least appear to affect the way the Supreme Court exercises its power of judicial review. (Incidentally, the formulation "manifestly unconstitutional" does the job well, but of course other formulations might do so.)

 One note: The proposed Resolution would be confined to the power to hold federal statutes unconstitutional. As Justice Holmes famously and correctly noted, the power to hold state statutes (and local ordinances) unconstitutional rests on a different footing. (And, just to make the obvious point, the proposed Resolution, had it always been in effect, wouldn't have any bearing on decisions dealing with state regulations of abortion or state-mandated racial segregation. [There would be an interpretive question about Bolling v. Sharpe, but the concern that underlies that question has been around since the decision itself.])

Another note: Think about the following scenario: A state enacts a statute that the Supreme Court holds unconstitutional without saying it is manifestly unconstitutional. Invoking one of its enumerated powers (for present purposes, which one is irrelevant), Congress enacts a statute expressly authorizing states to enact and enforce exactly the same statute as the one the Court held unconstitutional. Under the Resolution that federal statute would be constitutionally permissible -- and so would be state laws enacted pursuant to the authorization it gave them -- unless the courts concluded that such an exercise of the enumerated power was manifestly unconstitutional. I personally think that that is the right result in principle (even in connection with a slew of state enactments that I think the courts would and should find unconstitutional), but I suspect that others will vigorously disagree.

Friday, October 23, 2020

"Yes, Prime Minister" on the Biden Supreme Court Commission

Gerard N. Magliocca

Claire: (PM's Advisor): One more thing, Prime Minister. I do think that after the interview you need to announce some pretty impressive action to make it look as if you're serious.

. . .

Sir Humphrey Appleby: What about a Royal Commission?

The Prime Minister: That's more like it. It won't report for three years. And if we put the right people on it they won't agree about anything important. Right, a Royal Commission.

Thursday, October 22, 2020

Narrative Hardball

Joseph Fishkin

When Dave Pozen and I wrote our article two years ago on asymmetric constitutional hardball (building on the important and ongoing work by Mark Tushnet), our bottom line was that the constitutional hardball we observe is reciprocal but not symmetrical. Both Democrats and Republicans engage in constitutional hardball, and predictably tend to do so in response to one another; but for at least the past 25 years or so, the Republican party has simply played harder hardball. Over and over, Democrats do respond. But they respond with much less aggressive forms of hardball. Our article was primarily devoted to explaining why this was happening. 

Pushing through the Amy Coney Barrett nomination, in the middle of an election in which voting is well underway, with voting disputes reaching the Court every day, just four years after blocking Merrick Garland’s nomination for nearly a full year on the grounds that it was “an election year,” is obviously a monumental act of constitutional hardball. This morning the Senate Judiciary Committee voted out her nomination. This itself involved a bit of hardball: the twelve Republicans on the committee broke (and acknowledged breaking) a committee rule that had held that two members of the minority party must be present to conduct business. Democrats refused to show up at today’s hearing as a protest, so as to not “grant this process any further legitimacy,” in Sen. Schumer’s words. That refusal to show up was, of course, also a form of hardball, albeit a rather muted one.

This morning’s hearing starkly illustrated a dynamic we discussed briefly in the article: in order to justify constitutional hardball, partisans regularly tell stories in which the other side is engaged in lots of hardball, smashing norms in dramatic and powerfully escalating ways, while one’s own side has only responded, at most, in a measured and proportionate way. Both sides tell these stories. (Democrats have more material to work with on this score. But both sides work with what they’ve got.) The most extreme examples of this genre tell a story in which only the other side ever engages in constitutional hardball. The other side is always the aggressor and they do all the escalating. Our side always piously abides by norms, because we have ever so much respect for norms and process, whereas their side will break all the rules to get the outcomes they want. (At the extreme this narrative sometimes starts to lose coherence. By omitting the moves by one’s own side that in fact helped prompt each round of escalation by the other side, the more extreme narratives leave little in the way of explanation for the timing or scope of the other side’s hardball, except the other side’s general desire for power and apparently chaotic and capricious disregard for norms—it starts to sound as if the other side just wakes up each day and asks, what norm should I violate today?)

What occurred to me this morning as I listened to a bit of the hearing on the radio was that the weaving of this sort of wildly one-sided narrative is itself an important form of constitutional hardball. Call it narrative hardball. And it, too, appears to be reciprocal, but not symmetrical. Both Democrats and Republicans tell stories that emphasize the other side’s hardball. But I think it is safe to say that no Democratic version of this narrative has ever come close to the heights of one-sidedness reached by various Republicans at today’s hearing, especially Senator Mike Lee. Lee’s extremely lengthy comments focused on what he called the “decades of vicious, unilateral escalation” by Democrats. He’s serious about the word “unilateral.” As he explained (emphasis definitely not added by me): “Every norm broken, every act of escalation, one party, the Democrats, has been the aggressor, in every single instance. At every step along the way, our side has used our constitutional authority and the other side has abused its authority. There is no tit for tat, there is just tat.”

That is quite a claim. Below the fold I’ll briefly say a little about how it’s wildly at odds with reality. But here I want to open out to a larger point. If you want to justify big acts of constitutional hardball, it apparently helps to have a narrative that shows it’s really mostly (or even entirely!) the other side playing hardball. (This is part of why Republicans like to spend their time right now, in the midst of their own massive act of constitutional hardball, talking endlessly about possible future scenarios in which Democrats engage in court-packing.) If Democrats do in fact take control of the White House and Congress in 2021, will they engage in narrative hardball themselves, to help justify their own forms of hardball? Surely some will want to try. And they have an easier starting point, since Republicans have in fact played some amazing hardball of late; just ask Justice Garland. But Democrats will also face some constraints that guys like Mike Lee frankly do not face. Ask yourself, Democrats and liberals: are you willing to engage in Mike Lee-style distortions of history, in which “in every single instance” it’s the other side that’s playing hardball? I suspect the answer is no. Even if you favor forms of hardball such as eliminating the filibuster, etc., you want to justify it without resorting to contorting the historical narrative. Reality is asymmetric enough, you’ll say! And fair enough. But willingness to play narrative hardball may be yet another asymmetry, perhaps rooted in aspects of liberal and conservative ideology, perhaps the asymmetry of the partisan echo chambers, perhaps other factors Dave and I spent way too much time thinking about two years ago, or ones we didn’t think of, that will give Democrats a steeper hill to climb in 2021.

Read more »

Wednesday, October 21, 2020

Eric Segall responds on originalism and judicial review

Guest Blogger

 Eric Segall

Thanks, Jack for engaging with these two questions. I'm going to limit my response to the first one. My argument is that the original meaning and understanding of the judicial power in Article III was encapsulated in Alexander Hamilton's Federalist No. 78  in which he said judges would only overturn laws when they were at an "irreconcilable variance" with the Constitution. This deferential standard was well-accepted at the time as the work of many historians shows. You responded that, assuming for sake of argument  this historical account is correct, your thin conception of originalism is not bound by the original expectations of the Founders, and that as other branches of government, especially the President, have grown in size and power through constitutional construction,  so must the judicial role to maintain adequate checks and balances. 

Your argument is internally coherent and relies on your New Originalist method of constitutional interpretation/construction. I have written in many places that once we are allowed to disregard known original expectations, then we have merged originalism and  living constitutionalism for all important purposes. I do not deny that living constitutionalists can advocate for aggressive judicial review. I do think originalists cannot in light of the consensus about strong judicial deference at the Founding. So, I think  this conversation turns on whether your thin version of originalism is truly originalism. Of course, you are entitled to label your theory as you please, and I think, as I wrote in my book, that your descriptive account of constitutional law is both rich  and accurate, but to most scholars, judges, and citizens, not originalist in any meaningful sense of that term, especially when it comes to judicial review. So, I agree that a thin view of originalism can justify aggressive judicial review, but that thin view  allows for major constitutional changes since the Founding, which sounds a lot like living constitutionalism.

Eric J. Segall is Ashe Family Chair Professor of Law at Georgia State University College of Law. You can reach him by e-mail at

Tuesday, October 20, 2020

AMA: Eric Segall asks about originalism and judicial review


ES: Jack, to the best of my knowledge, and maybe I'm wrong, you have never addressed the many historical sources collected by Sylvia Snowiss, Jack Rakove and others showing that the framers quite clearly had a conception of judicial review that was modest, humble, and centered around clear constitutional error (and the 14th did not change that according to the best historians of that time other than possibly for protecting the newly freed slaves). I review all that, including Treanor's views on the subject, in Chapter 1 of Originalism as Faith. Don't you have to deal with those historical sources to argue for a robust conception of judicial review?

JB: Your question raises two different issues.

First, you want to know whether fidelity to the Constitution's original public meaning precludes a conception of judicial review far more robust than Founding-era understandings and expectations. Another way of putting this question is to ask how the interpretation/construction distinction applies to "the judicial power" described in Article III, which "extend[s] to all cases, in law and equity, arising under this Constitution." You are asking whether judges today should be bound by the original expected application of the scope of "the judicial power" and by the legal practices associated with "the judicial power" roughly contemporaneous with the Founding.

Second, You make the historical claim that the practice and understanding of judicial review did not change very much from the Founding to the adoption of the Fourteenth Amendment, and that the Fourteenth Amendment had little effect on the practice of judicial review. Is this historical claim correct?

The answer to the first question is no. The answer to the second question is also no.

Read more »

The Census, Reapportionment, and Section Two of the Fourteenth Amendment

Gerard N. Magliocca

On Friday, the Supreme Court granted certiorari to review the Administration's effort to exclude from the population tally for the upcoming reapportionment people who are in the United States illegally. There is little chance that the Administration will win this case. I do hope, though, that at least one of the Justices will flag the serious constitutional flaw in the reapportionment statutes that I analyzed in this article two years ago. Time is running out for Congress to address the conflict between current reapportionment law and Section Two of the Fourteenth Amendment. If no action is taken, then there is a real risk that the next reapportionment could be delayed beyond 2022.

Section Two of the Fourteenth Amendment is at the heart of Trump v. New York. First, Section Two sets forth only one exception to counting everyone for representation--"Indians not taxed."  Second, Section Two contemplates separating the total population only from the population of presumptive voters whose right to vote is being "denied" or "in any way abridged." People who are in the United States illegally are neither "Indians not taxed" nor presumptive voters (as Section Two limits that class to citizens). Thus, the President's instruction to the Commerce Secretary that certain non-citizens be excluded or separated from the population count is unconstitutional.

Since Section Two must be addressed in any sensible assessment of the Administration's policy on the merits, the broader issue of how the reapportionment statutes violate Section Two is on the table. The Court need not address that point now, but a separate opinion making the point might spur congressional action next year.


Monday, October 19, 2020

On the constitutionality of the "mandate" in California v. Texas

Jason Mazzone

I appreciate Marty Lederman's comment on the new Justia essay (by Vik Amar, Evan Caminker, and me) that I linked to on whether the ACA insurance mandate is valid without the tax penalty. Marty suggests we go astray by asking the wrong question. But the whole point of the first part of our essay is to demonstrate why, after the 2017 amendment (that zeroed out the potential tax consequence for failing to maintain insurance), the Court should not read the ACA statutory provision as a congressional command. We therefore agree with Marty's bottom-line assessment on that particular issue--though our own analysis raises several points none of the briefs in California v. Texas have focused on. Our essay that Marty links to makes two additional claims worth flagging. One is that even if the 2017 amendment has resulted in a statutory command (without tax penalty) to purchase insurance, it is constitutional. (On that issue, Marty in his comment misreads NFIB v. Sebelius, for the reasons we explained in greater length here.) And even if it is unconstitutional, we say, the proper remedy may be to enjoin the 2017 amendment rather than enjoin the mandate itself (an issue we will  return to at Justia shortly). On both points, we also make some arguments that do not appear in the briefs in the California v. Texas case.           

Orders, legal and illegal

Eugene R. Fidell

Just Security has this post by the Editor on lawful and unlawful orders. Excerpt:
Hypotheticals worth pondering include whether General Milley could have been prosecuted had he refused to walk with President Trump to the church door, or whether an order to paint over “Black Lives Matter” on a city street would have been legal, if the president asserted that these actions served the military purpose of force protection, including protection of the commander-in-chief at or near the White House. Recently, the Marine Band was required to play at what certainly seemed to be a campaign-related White House event. Would the piccolo player have had a defense if she refused to play John Philip Sousa’s immortal “Stars and Stripes Forever”?

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Sunday, October 18, 2020

Asking the Wrong Question in the ACA Case

Marty Lederman

Jason's post this morning is entitled "Is the Individual Mandate Without Tax Consequences Unconstitutional?"

The answer to that question is:  Yes.  If one treated Chief Justice Roberts' opinion in NFIB v. Sebelius as controlling precedent--as a majority of the Court would do, even if technically it was dicta--then of course an "individual mandate" to maintain Obamacare-compliant health insurance would be unconstitutional.  

But that's not the question raised in California v. Texas.  The determinative question is, instead, whether the 2017 Congress, and President Trump, enacted a legal mandate that individuals must maintain Obamacare-compliant health insurance.

And the answer to that question is:  Of course they didn't.  Indeed, as I've argued repeatedly on this blog (see here, for instance), and as Mike Dorf and I explain in an amicus brief we filed in the case, the Court has rarely, if ever, confronted an easier question of statutory interpretation.  

To be sure, three federal judges and the Solicitor General of the United States have already insisted that, contrary to Donald Trump's and Mitch McConnell's repeated boasts that they eliminated the "individual mandate" and rendered the ACA less coercive than it was before 2017, in fact Trump and the GOP Congress directly flouted the NFIB majority's constitutional judgment by imposing a mandate to maintain insurance.

And I'm afraid it's entirely possible that at least some of the Justices of the Supreme Court--perhaps even a majority--might conclude likewise.  

If they do, that'll say something about the current state of the Court--and, perhaps, about current trends in "textualism."  But it won't make the argument any less preposterous.  As Mike and I write in our brief, to read the 2017 amendment in that way would be to accuse Trump and the Republican Congress of "brazenly enacting a law that a majority of Justices of th[e] Court, and a majority of those who voted for the amendment, believed to be beyond the power of the federal Government to enact," thereby "turn[ing] the constitutional avoidance canon on its head."  Our brief concludes:

It is exceedingly unusual, to say the least, for the federal political branches to enact laws in flagrant disregard of this Court’s constitutional holdings or judgments.  On the rare occasions where they’ve done so, it has typically been to express profound constitutional disagreement with the Court—such as when the 37th Congress and President Lincoln enacted a law declaring that “there shall be neither slavery nor involuntary servitude in any of the Territories of the United States,” Act of June 19, 1862, ch. 111, 12 Stat. 432, as a direct rebuke to this Court’s pronouncement in Dred Scott v. Sandford, 60 (19 How.) U.S. 393, 432-52 (1857), that Congress lacked authority to do just that.

This is not one of those rare cases.

New comments policy on the blog


 In 2009 I adopted a policy of turning off comments on the blog by default, but allowing individual members of the blog to permit comments.

Starting this week, in those posts where comments have been turned on, only other members of the blog may post comments.

UPDATE: Several people have written me to ask whether the change in comments policy is due to trolls and personal abuse. It is partly that, but only partly. The abuse and bad behavior in the comments section has been going on for a long time.

An equally great, if not greater problem, is spam. On Blogger, if you open a comments section--and even if you use Blogger's anti-spam features--you will still be inundated with hundreds of spam posts each day, seeking out any weak spots in your defenses.

In 2009 I effectively eliminated comments from the blog. The vast majority of posts since then do not have comments. But I allowed individual members of the blog to allow comments as they chose, although I have discouraged it.

Since 2009, only two blog members have regularly allowed comments. All other posts do not have comments. Nevertheless, we have been flooded with spam each time the comments gate has been opened.

Blogger reports that there are 176,000 comments on the blog in its seventeen years of existence. My guess is that 80% of them are spam posts, especially earlier in the blog's history, when Blogger's anti-spam and moderation tools were not so well developed.

Because I am the administrator of the blog, it falls to me to do the moderation. The effect of the current system is that those members of the blog who allow for comments are assigning me the task of cleaning up after these messes. I am disinclined to do this because I already have a full time job. That is why I essentially ended comments on the blog in 2009, and why I have decided to close the door on most comments for the small remaining number of posts. From now on only members of the blog will be able to comment, and I trust that they will rarely post advertisements for reverse mortgages or comments in languages that none of them understand.

There are several solutions to the spam problem. I could leave Blogger and move to a different platform with better anti-spam and moderation functions. I could try to locate and employ third-party anti-spam plug-ins to add to Blogger. I could hire a programmer and create my own spam tools. I could hire a person to moderate comments at my expense.

I have chosen to do none of these things. The blog works fine without comments, as it has for most of its seventeen years of existence.

Is the Individual Mandate Without Tax Consequences Unconstitutional?

Jason Mazzone

Vik Amar, Evan Caminker and I offer our analysis of the question before the Supreme Court in California v. Texas as part of our Justia series on the case. 

Friday, October 16, 2020

The Electoral College Is Not Broken

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Franita Tolson

Scholars tend to paint the Electoral College as some irrational mechanism that made little sense in 1787 and makes even less sense today.  Perhaps that’s true, but the sheer number of times that we have tried—and failed—to fix the Electoral College leads one to wonder if the problem is not the College; instead, the problem seems to be that we have repeatedly gambled on our politics to see us through each election meltdown.  It is a gamble that we take time and time again, in a system that we claim is broken, yet refuse to fix.  The two excellent books that are the subject of this symposium—

Alexander Keyssar’s Why Do We Still Have the Electoral College and Jesse Wegman’s Let the People Pick the President: The Case for Abolishing the Electoral College—invite us to engage in a thought experiment in which we assume the Electoral College works exactly as intended.  After all, one can only conclude that our failure to squarely address the core institutional defects of the Electoral College and our subsequent turn to politics (or normal legislation) to paper over these defects undermines arguments the Electoral College is broken.  More pointedly, to the extent that the Electoral College was actually intended to be a reflection of pure politics post-Twelfth Amendment—and there is substantial evidence of this—the claim that the system is broken is even less compelling.  Instead, the Electoral College reflects either the best or the worst of our politics; when we are antidemocratic or antimajoritarian or dysfunctional, so too is the Electoral College.

Read more »

William Brennan and Election Year Nominations

Gerard N. Magliocca

Let's enter the wayback machine and return to 1956. In September, Justice Sherman Minton retired from the Court. Minton was a Democrat named to the Court by President Truman. His health was poor, though he lived until 1965. Apparently Justice Minton retired when he did because he had reached fifteen years of overall judicial service and was therefore entitled to a full pension. Justice Minton was no fan of President Eisenhower and supported Adlai Stevenson in the upcoming presidential election. Still, he did not see any issue in retiring shortly before the election and giving Eisenhower a vacancy. Such a scenario is hard to imagine today, to say the least.

What did Eisenhower do with the vacancy? He nominated William Brennan. Why? Mainly because Brennan was a Catholic Democrat, and Eisenhower thought this would help him with that constituency. But he gave Brennan a recess appointment. After Eisenhower was reelected, the recess appointment was renewed in January 1957. Then Justice Brennan was confirmed by the Senate in March. This leads to a fascinating question. What if Adlai Stevenson had won in 1956? There must have been commentary about that point then, but I don't know what was said. Perhaps Stevenson would have also nominated Brennan because he was a Democrat, but perhaps not. 

What's interesting is that nobody seemed bothered by the recess appointment of a Justice less than two months before the election. Indeed, you could argue that this was the correct solution because a recess appointment left open the possibility that a change in the White House could lead to a new nominee. On the other hand, such an appointment would create an impossible conflict-of-interest for that Justice in a case involving a disputed presidential election. So giving Judge Barrett a recess appointment may not have worked or been tolerated. Or maybe such an appointment would have worked if people thought (as they may well have in September 1956) that the President was going to be reelected.

Thursday, October 15, 2020

Part Three: Why State-by-State Ranked Choice Voting Should Be a Higher Priority Than National Plurality Winners

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

            Part Two explained why a constitutional amendment to elect presidents based on a national popular majority vote would be ideal and why that ideal is unattainable for the foreseeable future. Here’s what to do instead.

Which second-best solution?

            Unless and until a constitutional amendment becomes achievable, Electoral College reform must make a choice between two desirable elements of reform.  Either reformers settle for a plurality-based National Popular Vote Interstate Compact (NPVIC) as described above, recognizing the “spoiler” risks associated with a plurality-based election.  Or reformers pursue state-by-state adoption of Ranked Choice Voting for the appointment of a state’s presidential electors, as Maine has done, recognizing that this reform will leave unaffected the Electoral College’s state-based structure. The brute reality will remain that it is impossible to fully achieve both a National Popular Vote and Ranked Choice Voting without that elusive constitutional amendment.

            So, as between the two, which is the more important?

Read more »

Wednesday, October 14, 2020

Amar, Caminker & Mazzone on the ACA case (part 2 -- standing issues)

Jason Mazzone

 Over at Justia, Vik Amar, Evan Caminker and I have posted a new essay on California v. Texas, the case involving the challenge to the Affordable Care Act that the Supreme Court will hear one week after the election. Our new essay, Part Two in the series, concerns issues of standing. Part One, our discussion of stare decisis and what NFIB v. Sebelius did and did not hold (an issue that we think all parties in California are wrong about) is here

Part Two: A National Popular Majority Rule for Presidential Elections

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

          Part One introduced the “spoiler” problem presented by third-party candidates, how best to handle it, and why that optimal solution is out of reach for now.

What would be ideal

             Ideally, there would be a new constitutional amendment to eliminate the Electoral College and, instead, elect the president based on a majority of the popular vote nationwide. The amendment would empower Congress to choose the method of determining the majority winner of the national popular vote.  Congress could choose a traditional runoff system, in which there would be a second popular vote among the top two candidates in the event that none received a majority in the first popular vote. Alternatively, and perhaps preferably, Congress could enact a system of Ranked Choice Voting, in which a majority winner would be calculated from the rankings on the cast ballots.

            This constitutional amendment would achieve two main objectives. First, it would create a uniform national electorate for choosing the president. Voters in California and New York would each cast one ballot to be put in the same single national pile as the one vote cast by each voter in Iowa and Nebraska. No voter in any state would exercise any more clout over the outcome of the election than a voter in any other state.

            Second, this constitutional amendment would make sure that the winner not only received more votes overall than any other candidate but also was the candidate preferred by a majority of voters when compared directly against the second most popular candidate in the race.  The two criteria do not necessarily yield the same result. In a race with three or more candidates, Candidate A can receive more votes than any other candidate, but when all other candidates are eliminated and Candidate A is compared only with Candidate B, then Candidate B can be preferred by a majority of voters to Candidate A.  This constitutional amendment would insist that Congress adopt an electoral procedure for identifying a majority winner, not merely a plurality winner.

Read more »

Tuesday, October 13, 2020

How "Fact" Checking Can Decrease Civic Knowledge

Mark Tushnet


Yesterday I was contacted by a reporter with PolitiFact, with a question based on this statement by Joe Biden: “The only court packing is going on right now. It’s going on with the Republicans packing the Court now. It’s not constitutional what they're doing.” The question to me was in connection with a “fact check,” and asked, “Is what's happening right now -- the Republican push to install Amy Coney Barrett as the ninth Supreme Court justice -- in any way unconstitutional?”


I now realize that I should have answered that the question was badly posed as a “fact check” one because treating a claim about the Constitution as implicating a fact – rather than an opinion, or a prediction, or an assessment of whether there are reasonable arguments one way, the other way, or both ways – is just a mistake. But I didn’t, and the result, I think, was a decrease in civic knowledge (if anyone pays attention to PolitiFact).


Here’s my initial response: “As usual with this sort of thing, the answer’s complicated because ‘unconstitutional’ can and does mean many things. (1) If ‘unconstitutional’ means that a court would find what the Republicans are doing to be inconsistent with the Constitution, the answer is no, no court would make such a holding. (2) If ‘unconstitutional’ means that what they are doing is inconsistent with what some people reasonably view as fundamental principles underlying the constitutional order, then yes, what they are doing is unconstitutional. The political uses of the word ‘unconstitutional’ are different from the purely legal uses, but both (or all) kinds of uses are well within the bounds of the way we -- ordinary people, politicians, and lawyers -- talk about the Constitution. I know that this isn’t the way you do things, but I personally wouldn’t award any Pinocchios to the statement.”


I responded to a follow-up question about my second point by identifying as a relevant “fundamental principle” that “the political system should operate over time to ensure that overall all of our institutions are roughly in line with what the American people want.”


PolitiFact’s editors awarded a “False” to the Biden statement. The reason, supported by statements they got from Sai Prakash, Ilya Shapiro, and Robert Levy, appears to be that the word “unconstitutional” can be applied only to practices that are addressed by some express terms in the Constitution, supplemented with the proposition that everything not so addressed is to be determined by politics, understood to include sheer political power but not to include fundamental principles underlying the constitutional order. That reason and proposition are coherent and defensible (though wrong, in my view), but so are alternatives, and the labels “true” and “false” just aren’t apposite. (The formulation of the question to me – “in any way” – ought to have caused the PolitiFact editors to reflect a bit more upon their choice.)


Readers of this PolitiFact article know less about the Constitution than they did before they read it.

Richard Epstein and me on Obamacare

Andrew Koppelman

This evening at 7 pm Central, I will be on WTTW's news show, Chicago Tonight, discussing Judge Barrett and Obamacare. Also appearing will be my old friend and adversary Prof. Richard Epstein.

The Need for Ranked Choice Voting in Presidential Elections: An Essay in Three Parts

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

Part One: What If Kayne West Were More Organized?

It is widely believed that 2020, unlike 2016, will be a genuinely two-party race, with no third presidential candidate being a factor in the outcome. That may indeed prove true, despite the presence on the ballot of the Libertarian and Green Party candidates in all and most states, respectively—and despite Kanye West’s mercurial bid to get on the ballot rather belatedly.

            But it doesn’t take much for a third candidate to be a “spoiler,” to use that somewhat unfortunate yet nonetheless essentially accurate term. Kanye is on the ballot in Minnesota, a potentially pivotal state in achieving an Electoral College majority, and [as this essay was drafted] he may still get on the ballot in Wisconsin because of ongoing litigation there.  If either or both of those states ends up being exceptionally close, as is possible, Kanye conceivably could make the difference.  (The Green Party lost its separate fight to get on Wisconsin’s ballot, where its share of the vote in 2016 was greater than the margin between Trump and Clinton.) Just ask Al Gore about the possibility of a third candidate on the ballot, like Ralph Nader, being decisive in who wins or loses a critical state for reaching 270 electoral votes.  Better yet, dust off a history book and read about the spoiler effect of a third-party candidate in 1844 election, one of the most consequential.

Read more »

Monday, October 12, 2020

Judge Barrett's Views on What a Faithful Catholic Judge Should Do When She Has Conflicting Religious and Judicial Obligations

Marty Lederman

The topic of my Law of Religion class today was what government actors should or must do when their legal and religious obligations conflict with one another.  In addition to the speeches on this topic I typically assign, by John F. Kennedy, Barack Obama and Mitt Romney, this year I also assigned two other readings:  a 1998 article co-written by Amy V. Coney (now Amy Coney Barrett), two decades before she became a judge, and a 2002 essay written by the Supreme Court Justice for whom Barrett clerked just after publishing her article, Antonin Scalia.

I agree with Mark Tushnet about Barrett’s article, which she co-authored with her former professor John Garvey (now the President of Catholic University):  It’s “a model of serious scholarship — analytically precise, willing to take clear positions on [at least some] important and controversial questions.”  As Bob Tuttle aptly described it, it’s “sophisticated moral casuistry”—a “rare example of legal scholarship as a pastoral activity.”
I further agree with Professor Tushnet that the Senate Judiciary Committee’s discussion of the article during Judge Barrett’s 2017 confirmation hearing was less than illuminating (to say the least).  As Mark writes, “[t]he article’s arguments are complex and subtle, and the confirmation process is ill-suited to addressing arguments of that sort.”  I therefore concur that Senators would be well-advised to avoid the subject in the confirmation hearings this week.  And I should be clear at the outset that I’m not suggesting there’s anything in the article that should cause any Senator to oppose her nomination.  I’ve already written here about why I have serious concerns about yet another Republican-appointed Justice; and I have little doubt that a Justice Barrett will solidify a minority-appointed and minority-confirmed Court whose jurisprudence will be deeply problematic.  Therefore there are plenty of reasons to oppose Barrett’s confirmation.  But her admirable, serious 1998 article isn’t one of them.

Even if the article isn’t the subject of discussion at the hearings this week, however, I think there’s a great deal of value for others—including me and my students!—to grapple with it, not only because it’s thought-provoking, but also because it sheds light on the views of a jurist who might end up serving on the Court for decades to come and who’s given a lot of thought to the important question of how a judge might reconcile his or her civil duties and religious (or other moral) convictions when those two commitments appear to be irreconcilable. 

If Judge Barrett’s 2017 confirmation hearing was any indication, there’s a great deal of misunderstanding about just what she argued in her 1998 article.  Moreover, as I explain below, she herself contributed to that confusion by offering some surprisingly unequivocal answers at the hearing about the dueling obligations of an “orthodox” Catholic appellate judge—i.e., a judge who’s committed to being faithful to the teachings of her Church—in cases involving abortion and the death penalty.

I thought it might therefore be useful to more carefully examine what Judge Barrett and Dean Garvey actually wrote in their 1998 article, and then raise a few questions about the apparent tension between that article and Judge Barrett’s 2017 testimony on the same subject.
Read more »

Judge Barrett and the Affordable Care Act

Gerard N. Magliocca

The first day of Judge Barrett's confirmation hearings is a good example of how political considerations can get in the way of a clear understanding of the relevant legal issues or concerns.

Case in point. Democrats spent most of today arguing that Judge Barrett will probably vote to invalidate the entire Affordable Care Act. The problem is that we have a contrary piece of information. In a moot of Texas v. California held not long ago, Judge Barrett (according to media reports) reached the opposite conclusion. Thus, the relevant question is whether Judge Barrett should recuse herself from the case in the interest of fairness to the opponents of the ACA.

Consider a hypothetical. A law school holds a moot court competition. They invite Justice X to be on the panel. The law school tells Justice X that the case for argument is one that the Supreme Court will hear in its upcoming Term. Justice X would almost certainly decline the invitation on the ground that she could not properly participate in such a moot court and then hear the case for real. I'm pretty sure that all of the current Justices would take that view. How, then, can Judge Barrett not recuse in Texas v. California?

This question, though, will probably not be asked in the hearings. Why not? Democrats won't ask because that would foul up their story that Judge Barrett is out to get the ACA. Republicans won't ask because they don't want to ask Judge Barrett a challenging question. As a result, we probably won't find out what Judge Barrett thinks of the recusal issue until she is confirmed and must decide her herself if she can properly sit in Texas v. California.    

UPDATE: In response to a question today, Judge Barrett said that in the moot court she voted that the individual mandate was unconstitutional but severable. I still don't see how she can go forward and sit on the case if confirmed in time. The opponents of the ACA have an excellent argument for her recusal.

Can Anything Short Of Outright Repeal Cure The Impecilities Of The Electoral College?

Sandy Levinson

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

All three of the books have as one of their dominant motifs the sheer difficulty, if not practical impossibility, of amending the Constitution.  Wegman and Foley, in particular, structure their affirmative proposals around this reality.  If constitutional change is impossible, then the next best thing is to support ameliorative proposals that would not require climbing Mount Everest.  It is illuminating, though, that Wegman’s strongly-argued proposal is eviscerated by Foley, even as Foley’s retains the possibility both of electoral college winners who in fact come in second in the overall popular vote, as well as retaining the possibility of the “contingent election.”

 So let’s begin with Wegman, who strongly endorses the so-called “national popular vote interstate compact.”  The idea is (perhaps deceptively) simple:  States with a total of 270 electoral votes simply agree, in a “compact” with one another, to instruct those chosen to be electors to vote for whoever comes in first in the national popular vote.  The Constitution clearly assigns to state legislatures the nearly plenary power to “appoint” electors; many state legislatures at the outset of the United States simply appointed the electors themselves without the bother of requiring an election at all, though this hasn’t been done since Colorado did in it 1876.  The Supreme Court’s July decision presumably removes any doubt about the constitutionality of such “instructed” electors.  The adoption of the proposal would, as Wegman ably argues, eliminate the possibility that the “winner” might in fact collect fewer votes than the “loser.”  So what’s the problem?  Why, in particular, does Foley object so strongly (as does Rakove)?

Read more »

Sunday, October 11, 2020

Signing Off on Discussing Court Reform

Mark Tushnet


I’m getting bored with detailed discussions of Supreme Court reform/expansion/packing. (And if I’m getting bored, I can imagine how other people feel!) Trying to step back from details, which will come up only as illustrations, I make a few points here. As always, this sort of discussion has to be preceded with the observation that it rests on the assumption, as yet unproven, of a Democratic trifecta in 2021 (probably along with some sort of filibuster reform).


(1) It simply foolish to contend that you’ve come up with a solution that’s invulnerable to constitutional challenge. No proposal that I’ve yet seen can simply be enacted as a statute that’s guaranteed to survive constitutional assaults. Statutory term limits with prospective effect only bump up against the appointments clause of Article II, which can be read to distinguish between appointments to the Supreme Court and appointments to other federal courts. Jack Balkin’s proposal bumps up against the requirement that there be “one” Supreme Court (on which see the next paragraph) and against the contention that it requires that one read the exceptions clause to mean that something that eliminates every category of appellate jurisdiction is an exception to the appellate jurisdiction. (If one wants a cf. cite here, cf. Justice Scalia’s opinion for the Court in MCI Telecommunications v. AT & T, 512 U.S. 218 (1994), which holds that a “modification” of something means changing it incrementally or moderately.) Targeted or general jurisdiction-stripping provisions also bump up against the exceptions clause and substantive constitutional provisions, as explored in excruciating detail in the enormous literature on jurisdiction-stripping (in addition to being far more difficult to draft than proponents acknowledge). Even Court expansion/packing bumps up against the claim that since 1937 (or earlier, depending on how one wants to do the analysis), there’s been an enforceable convention that the Court’s size can’t be changed without a relatively pure “good government” reason, unpolluted by the desire to alter outcomes.


What we need are assessments of the constitutional arguments, not flat assertions on the order of “it can be implemented by ordinary legislation.” My assessment is that all the changes should survive constitutional challenge – and that the constitutional argument against Court expansion/packing is the weakest of the lot. (The “should” here is doing a lot of work; a full-scale assessment would have to take into account the proposition that – assuming that standing and other justiciability obstacles can be overcome – the statutes and the Constitution would be interpreted by the unreformed Court. So, for example, can we be sure that the unreformed Court would adopt the kind of purely formalist interpretation of the word “one” that Balkin’s proposal requires?) But, a proposal that doesn’t address potential constitutional objections isn’t a serious one.


(2) A lot of the discussion lists short- and long-term costs and benefits. The “downward spiral of retaliation/57 justices/delegitimating the Court” rhetoric is a list of assertedly long-term costs, for example. Proponents of Court expansion/packing acknowledge the short-term political costs but emphasize short-term benefits from Court decisions that are assumed to be different after Court expansion than they would have been without it.


What’s missing from all the discussions (except mine!) is any consideration of probabilities and a calculation of the net of costs and benefits taking those probabilities into account. To take an obvious example: If Court expansion occurs in 2021, it can’t be undone until 2025 unless Republicans win veto-proof majorities in both houses of Congress in 2023. What’s the probability of that? And what’s the probability that one effect of Court expansion might be to allow Democrats to enact statutes, both voting-related and otherwise, that would increase the likelihood that they’ll retain the trifecta in 2024? And, on the claimed benefits side, what’s the probability that the “reformed” Court will actually deliver those benefits, both short- and long-term? On the long-term side, there’s the Moyn-Doerfler argument that some forms of Court reform might actually exacerbate the problem of making the Court central in our politics. Again, what’s the probability of that outcome – as compared to the probability that the changes will delegitimate the Court?


Frankly, I won’t take seriously anyone who simply offers “downward spiral” as an argument against Court reform.


But wait, there’s more, though this one’s quite old hat and really boring. It’s generally assumed that delegitimating the Court is a bad thing (for progressives). The reasons offered are, again a list of good things the Court has been able to do (or to get away with) because of its legitimacy. It’s been clear for a long time – forever, in my view – that you’ve got to do a pretty complicated calculation of the costs of having a Court able to draw upon a “legitimacy” resource before you can say anything sensible about whether delegitimating the Court is good or bad. There’s Brown and the Watergate Tapes Case and Obergefell on one side and Shelby County and Citizens United on the other. You’ve got to explain your assessment of the net before I’ll take your list seriously.


I’d also like to know what you think a fully legitimated Court would do in a world where Congress could have but didn’t reform the Court. That is, what national legislation that you can imagine (within what time horizon?) would such a Court invalidate? Is it going to advance a progressive agenda on its own by, for example, holding limited expansions of health care unconstitutionally narrow? Again, this gets really complicated. You have to worry about what limits a delegitimated Court could put on what you think is an aggressive president, of course, but also about the limits a fully legitimated one would put on what you think is a properly assertive one. The same goes for review of state and local legislation; there you have to talk about the possibility of congressional legislation to preempt bad stuff – freed of the constraint of City of Boerne v. Flores.


You have to do all this, of course, only if you’re actually taking seriously the proposals you’re making and those you’re criticizing.


(3) Finally, what’s the point of these discussions right now? Pretty clearly, it’s to widen the Overton window. We can see from Republican rhetoric that they don’t want it to open even a crack – not surprising: Having gained control of the Court and the lower courts, they don’t want court reform of any sort. In fact, I’m pretty sure that they will describe every proposed reform as Court-packing. (If so, my view is that it’s better to be hanged for a sheep as for a lamb.) For people who think that the Court needs reform, I doubt that proposing to open the Overton window a little bit but not too much is a good strategy. But, once the Overton window has been opened pretty wide, I’ll leave to the politicians to figure out what to do.

Reflection And Choice About A True Constitutional Imbecility

Sandy Levinson

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Although this symposium was originally envisioned as discussing only Jesse Wegman’s Let the People Pick the President:  The Case for Abolishing the Electoral College and Alex Keyssar’s Why Do We Still Have the Electoral College?, I am including as well Edward B. Foley’s equally fine book, Presidential Elections and Majority Rule:  The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College.  It was published somewhat earlier in the year, but all of them deserve readers and discussion.

Wegman, a former lawyer who is now on the editorial board of the New York Times, has written, as Jack Rakove suggests, a book designed for the widest audience.  It is a forthright and, to my mind, completely convincing attack on retaining the electoral college at all; it would make a perfectly suitable gift to any friend who wants to know what the fuss about the electoral college is about. It is written in a conversational style that is truly reader-friendly.  Keyssar and Foley are both academics, Keyssar at Harvard, Foley at Ohio State, and their books are, perhaps necessarily, denser.  But all are extremely well written and accessible.  One could do much worse than give all three as presents!  

My blurb for Foley’s book reads, “Nobody writes more thoughtfully about the theory and historical practices of American elections than Foley.  This book is a model of careful argument.”  I happily stand by that, just as I would write equally enthusiastic, though somewhat differently phrased, endorsements of the other two.   To put it mildly, this is a more extended essay than originally envisioned, and not only because I have added Foley to the mix.  I am therefore dividing it into two parts, the first of which will be published today, the second tomorrow.  I will focus first mostly (though not exclusively) on Keyssar’s book, which is both the longest and contains the most historical material.  Tomorrow I will turn more to the suggestions offered by Foley and Wegman as to how we might escape the current iron cage constructed by the present electoral college system. 

Keyssar is less of an advocate than the other authors; he is primarily interested in what accounts for the endurance of a part of the Constitution that has been systematically attacked since at least 1816, though one of his explanations is the barriers placed in the way of formal constitutional amendment.  This did not, obviously, prevent the important Twelfth Amendment, a focus of Foley’s book, from being proposed and ratified after the fiasco of the Jefferson-Burr tie vote of 1800, in time for the 1804 election.  But that is the last such amendment, and all three authors appear to agree that the prospects for amendment in the foreseeable future are minimal.  Wegman, like Foley, offers enthusiastic support for a “workaround” that avoids climbing the Mount Everest of the amendment process.  Their respective suggestions, though, are quite stunningly different.  I shall elaborate them tomorrow.

Read more »

Saturday, October 10, 2020

Vik Amar on Congress's role in electoral college reform

Jason Mazzone

I have been enjoying the Balkinization symposium on the books by Alexander Keyssar and Jesse Wegman on electoral college reform. I have one small comment in response to Professor Rakove's very interesting essay on the need for constitutional amendment. Readers might be interested to know that my colleague Vik Amar published an essay back in 2011 in the Georgetown Law Journal on the powers of Congress to remedy problems with the design or operation of the National Popular Vote Compact Plan and to put in place federal mechanisms to identify and tally popular sentiment within each state. Among other things, Vik shows that Congress has several powers it can use to require a uniform "presidential preference poll" to be held in every state (and used by the NPVC states) on the same day that congressional elections are held. Vik observes that besides being easier to adopt than a constitutional amendment, such statutory mechanisms have the added advantage of allowing for experimentation and adjustment. Vik's essay, "The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power," is here for readers with Hein access and here in draft form at SSRN.

How to Reform the Supreme Court


Yesterday I was on Ben Wittes' and Kate Klonick's show, In Lieu of Fun, to discuss my proposal for reforming the Supreme Court. Despite the title of this episode, I am actually opposed to Court packing. Instead, I am in favor of a different system for regularizing Supreme Court appointments. Read the blog post for details!

As I explain during the show, my proposal creates the practical equivalent of 18 year term limits. But it can be done through ordinary statute, it maintains life tenure, and it is fully constitutional, building, as it does, on two early precedents of the Supreme Court, Marbury v. Madison and Stuart v. Laird, both decided within a week of each other in 1803. 


Friday, October 09, 2020

Article V: There Is No Other Way

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

 Jack Rakove

             Back in the early 1970s, when my old friend Alex Keyssar and I were Harvard graduate students, we were part of an occasional “politics table” at Leverett House featuring John Rawls and Judith Shklar. As one can imagine, that was an intellectually heady experience, even though Rawls had the worst stutter I have ever encountered. Reading Keyssar’s new book, the early parts of which I reviewed in manuscript, I found myself thinking about Rawls’s celebrated “veil of ignorance” as one speculative remedy for the frustrating history of Electoral College reform that Keyssar recounts in fascinating if often gloomy detail. If we could put the whole American body politic behind such a veil and ask them to create a new mechanism for the selection of a president, would they not be driven to adopt the mode of election that most readers of this symposium likely prefer: a national popular vote, to be conducted in a single constituency (let’s call it the collective United States of America, as opposed to fifty electorally autonomous states and the District of Columbia), with a requirement that the winner be selected with either (let’s say) at least 45% of the vote or if necessary, in a runoff requiring an actual majority for victory.

            Alas, the conceptual genie that the philosopher can deploy is not for sale to historians, who have to deal with really existing people inhabiting specific moments and contexts. In that world, we are perpetually ignorant about what the next day will bring, but always alert to calculations of our political interests and preferences. In the language of Federalist 10, we know that leaders and citizens remain subject to the opinions, passions, and interests that dominate our political behavior, and lack the intellectual disinterestedness that the veil of ignorance would provide.

            In these two very different books, Keyssar and the New York Times journalist Jesse Wegman struggle with the common problem that Keyssar’s title captures so well: Why Do We Still Have the Electoral College? (the key word here being still). To be honest, Keyssar’s book has a real value for the readers of this symposium that Wegman’s Let the People Pick the President does not. I absolutely do not mean this to disparage Wegman’s book, but only to recognize that one book was conceived as a deeply researched and thorough scholarly examination of the long-running if futile efforts at electoral college reform, the other as a journalist’s snappy introduction to the topic, meant for the general reader and interested citizen. Wegman’s book is replete with short sentences, brief paragraphs, and bursts of rhetorical questions and bullet points to speed his story along. Even when he identifies analytical points that merit fuller treatment, his narrative does not alter. Keyssar, by contrast, responds to the historian’s responsibility to tell the complete story, even when that involves reiterating arguments that reformers and their opponents have been making for two centuries and more. As he observes near the end of the book, “The history recounted here has a Sisyphean air”—an image that had occurred to me well before it finally appeared on page 368. But Sisyphean though it might be, Keyssar’s new book should enjoy the same status as his Pulitzer-finalist work, The Right to Vote (2000), which appeared just in time to appear as a visual prop over James Baker’s shoulder in his first Meet the Press appearance after the election. Keyssar’s two books are now the definitive historical treatments of their respective subjects (which is a surprising destiny for someone who began his career as a labor historian).

            Despite the asymmetry between the two books, two concerns unite them that deserve critical treatment. One involves their discussion of the National Popular Vote Interstate Compact (NPVIC), which is a specific application of the more general concept of a National Popular Vote (NPV) replacing the constitutional electoral vote. Under its terms, a group of states casting 270 electoral votes—the simple majority required to elect a president—would bind their electors to cast their ballots for the national popular vote winner, thereby avoiding the disparity that occurred most recently in 2000 and 2016. This is the reform that many opponents of the Electoral College now prefer; it is also, for reasons I will shortly explain, a fatally flawed alternative. The other relates to the common defense of the Electoral College that its proponents routinely summon, which rests upon the idea that our state-based system of presidential election is essential to the preservation of the federal system. The creation of a truly national election in which each citizen’s vote would have the same value wherever it was cast, this argument holds, would somehow sap the vitality of American federalism. Accepting this shift toward a plebiscitary democracy, it is further argued, will undermine the federal constitutional republic the founders and framers established.

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