Friday, August 07, 2020

Developments in the SDNY Cases Challenging Trump's "I Won't Count Undocumented Immigrants as Inhabitants" Plan

Marty Lederman

A couple of weeks ago I published a long post about President Trump’s announcement that he plans to exclude undocumented immigrants from his calculation of State populations for purposes of reapportionment of House seats on the ground that such persons who live in the various States … aren’t inhabitants of those States.  (Seriously—that’s the theory.) 

I thought I’d try to keep Balkinization readers up to speed from time to time on the many lawsuits that have already been filed challenging the President’s plan.


The two cases in the Southern District of New YorkNew York v. Trump, No. 20-5770; and New York Immigration Coalition v. Trump, No. 20-5781—appear to be on a faster track than the others around the nation.  Here’s what’s happened already in those SDNY cases:  

Judge Furman consolidated the two cases.


He and the parties have agreed that the cases should be heard by a three-judge court and Judge Furman has asked Chief Judge Katzmann of the U.S. Court of Appeals for the Second Circuit to appoint such a three-judge court.


The ACLU-represented plaintiffs in the NYIC case filed an amended complaint.


Judge Furman established an expedited briefing schedule, from today through August 27, for the plaintiffs’ motions for summary judgment and for the government’s forthcoming motion to dismiss (the bases for which will likely be: alleged lacks of ripeness, standing, and final agency action; the failure to state certain claims; and that the plaintiffs may not bring claims for relief against the President).


And the plaintiffs today filed a joint brief in support of their motion for summary judgment.

Allocating public honor: The cases of Benedict Arnold and Philipe

Sandy Levinson

Allocating public honor is no small issue.  Consider two possible candidates for such honor.  The first is Benedict Arnold.  Given that he is an eponym for traitorous conduct, it is no surprise that there are no monuments honoring him in the United States.  But consider the almost certain possibility that there would be no United States were it not for his courageous leadership at the Battle of Saratoga.  Not only were the British forces defeated; it is also the case that the victory spurred the then-onlooking French to decide that the American secessionists were worth investing in.  There  can be little doubt that the French support was absolutely vital to winning American independence.  As Lin-Manuel Miranda has brought to our collective attention, there was not only the figure of Lafayette, but also, at least as importantly, the aid given by Rochembeau and the Franch navy in order to prevail at the Battle of Yorktown.  Had Arnold's generalship not prevailed, all might have been lost.  Had he died shortly thereafter, there can be little doubt that he'd be remembered, perhaps even earning a commemorative stamp of a plate block devoted to "Heroes of the American Revolution."  So why should the “mere” fact that Arnold, a genuine hero and contributor to the reality of the United States of America circa 1777,  decided that he would remain loyal to King George III after all deprive him of even an iota of recognition that one might argue is his due?  No doubt the question appears odd, even bizarre.  But would honoring Arnold be any more bizarre than the fact that the United States Postal Service in 1995 published a plate block of stamps devoted, in 12-point type to the Civil War--in 10-point type to the War Between the State--and included stamps honoring, among others, Robert E. Lee, Stonewall Jackson, and Jefferson Davis?  Were they really more worthy of “commemoration” than Benedict Arnold?  Had any of them really served the country they had pledged loyalty to so well as Arnold had through the Battle of Saratoga.

The second candidate is Field Marshall Philppe Petain of France, the so-called “Lion of Verdun” in recognition of the key role he played in the ultimate defense of France and defeat of Germany during World War I.  As a result, he was honored by the City of New York with a ticker-tape parade down Broadway in New York City, which in turn was commemorated by a  plaque in a series that recognized everyone who had garnered such a tribute down what was  labeled the “Canyon of Heroes.”  Needless to say, most people today remember Petain, if at all, as the collaborationist head of the Vichy regime during World War II.  A committee appointed by Mayor Bill de Blasio to consider a number of New York monuments, including those of  Christopher Columbus in Columbus Circle and of Theodore Roosevelt in front of the Museum of Natural History, recommended that reference to the “Canyon of Heroes” be removed from all 206 of the various plaques recognizing those who had received ticker-tape parades.  They did not, however, recommend the removal of Petain’s particular plaque, either because it is thought to be part of a historical record of persons who have been so honored, perhaps because they feared that some of the remaining 205 honorees might also be found to have had feet of clay should they be closely examined.  So the Solomonic compromise was to acknowledge that he had received a ticker-tape parade while eliminating the suggestion that anyone receiving such a parade was necessarily a “hero.”

As with Arnold, Petain’s initial heroism was completely negated by his later conduct.  He was stripped of the equivalent of the “honorary degree” as a “hero” awarded him by New York; perhaps we should analogize this to the withdrawal by a number of universities of honorary degrees conferred on the hitherto philanthropic Bill Cosby upon discovery that he was also a serial sexual predator.  Reputation—and consequent “honor”—is always subject to revision, either because of after-acquired information or later conduct or simply revisions in our estimation of what was long known to be true.  Dramatic recent examples include Woodrow Wilson and John C. Calhoun, each now “dishonored,” in a quite literal sense, by Princeton and Yale, respectively, by the renaming of programs and colleges.  Most recently, Millard Fillmore, Buffalo's contribution to the White House, was stripped by the State University of New York at Buffalo from one of its central buildings, presumably because he had signed the so-called Compromise of 1850 that included an even more tyrannical Fugitive Slave Act than the first one of 1793, should that be possible.  So why should Fillmore deserve honor merely because he was one of our "accidental" presidents, getting there by the death of the "real" presidents and, just as importantly, having done nothing as president to balance out the support of the Fugitive Slave Act.  Though, of course, one of the principal rock venues of all time was on Fillmore St. in San Francisco, presumably named by grateful Californians whose entry to the Union, as a free state, was another part of the Compromise.

Might one argue that Arnold does in fact deserve some (grudging) recognition as an American hero, even if we must combine that with appropriate caveats?  So, then, what about Petain?  If one believes that defeat of Germany was essential during World War I, then should we continue to pay due homage to the Lion of Verdun?  If we answer (some version of) “Hell, no!!” is not the reason that collaboration with what most of us continue (correctly) to view as the baseline for absolute evil makes one, in the most literal sense, dishonorable?  Petain presumably was not a Nazi himself, but, rather, came to the conclusion that it was in the interest of “the French” to accept the reality of their defeat and therefore to accept as well the creation of the puppet Vichy government that he headed.  Most of us no doubt prefer Charles de Gaulle.  I have no problem with accepting that argument.  But, to put it mildly, it is thoroughly political and, as with all political arguments, it is presumably open to argument.  And one can ask about its application to many other examples.

Barack Obama notably informed Americans, following the election debacle of 2010, that politics always involves compromise; he pointed out that there would have been no United States without accepting the reality that his wife’s ancestors would continue to be held in bondage.  He is surely correct, and we can debate to this very day whether what William Lloyd Garrison called the “covenant with death and agreement with Hell” was worth it.  But let us not deny the realities undergirding the United States.  If we reject Charles Blow’s recent remarkable column, “Yes, Even George Washington,  denouncing the “Father of our Country” as just one more slaveholder, and reply that Washington, after all, won American independence, then why not recognize that Benedict Arnold has his own claim to being honored by Americans grateful for independence as (or, perhaps, if ) they celebrate July 4?  And if sophisticated “realists” say even today that American collaboration with dictators and thugs is “necessary and proper” in order to achieve the ends of American foreign policy, then why, exactly, draw the line at Petain?  I do not deny that there are good answers as to why Petain is different, say, from collaborators with Josef Stalin during World War II, including, of course, the United States.  But the answers need to be spelled out rather than blithely assumed.

The present moment invites a national conversation raising the most fundamental questions of how Americans wish to define themselves.  As Oliver Wendell Holmes reminded us, “We live by symbols.”  Part of de Gaulle’s genius was to redefine France as a nation of resisters instead of the collaborationists that all too many were, led by Petain but, in fact including later President Francois Mitterand and a variety of lesser worthies.  And, of course, the United States quickly snatched up Werner van Braun as an honored contributor to the weaponry of the Cold War.  No doubt it was considered in bad taste, in Huntsville, Alabama, to bring up van Braun's collaboration with the Nazi regime.

History is the reality of the almost literally endless reconsideration and what Joseph Schumpeter, in a different context, called “the creative destruction” of symbols.  That destruction is inherent to the process by which societies choose, sometimes thorough solemn institutional deliberation, sometimes by the spontaneous action of mass movements and protests, to redefine themselves and instantiate their most fundamental commitments.   As Paul Simon put it, we are living in what, in its own way, is an “age of miracles and wonders.” It poses the most fundamental of Socratic questions, “How shall we live, and whom shall we choose to honor?

Will He Go?: An Interview with Lawrence Douglas

Guest Blogger

I recently spoke with Lawrence Douglas (Amherst) about his new book, Will He Go? Trump and the Looming Election Meltdown in 2020 (Twelve Books, 2020).

JB: Why did you write this book?

LD: Shortly after Trump’s inauguration, I began writing contributing opinion pieces for The Guardian. My very first piece was about Trump’s claim that three to five million illegal voters had robbed him of a popular vote victory over Hillary Clinton. At the time I wrote, “that same script could be called upon four years from now should Trump lose a re-election bid.  Whatever damage candidate Trump could have done to American democracy had he lost in November would pale in comparison to the damage wrought by a sitting president rejecting his defeat.” That concern animated the writing of the book. 

JB: Everyone probably wants to know your prediction. Will Trump willingly leave office if he loses in November? What are his incentives?

LD: In my book, I distinguish between conceding defeat and submitting to defeat. I understand conceding to be a normative act, in which the candidate acknowledges the legitimacy of their defeat. Submitting to defeat, by contrast, is simply a losing candidate’s de facto recognition that further fight is futile. I cannot imagine Trump conceding defeat—it’s not in his DNA to do so. If he loses decisively—and by that, I mean not only in the electoral college vote but also in the popular vote of the swing states—he will have no choice but to submit to defeat. But if his loss turns on the results of mail-in ballot submitted in swing states, then I believe Trump will aggressively work to dispute the result. His reasons for doing may be multiple. He might be concerned about exposing himself to criminal charges should he leave office. More generally, I think that Trump’s concern with protecting his brand and his need to remain the focus of attention means that losing is not an option.

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Is John Marshall Next?

Gerard N. Magliocca

America's reckoning with slavery and white supremacy is focused thus far mainly on Confederate monuments. But there is also an ongoing discussion about the Founders who owned slaves, How should we remember them? What should be done with their monuments?

The Supreme Court will at some point confront this question about John Marshall. When you tour the Court, a statue of the Chief Justice dominates the exhibit hall downstairs. When new Justices are formally given their place on the Court, they sit in John Marshall's chair during the ceremony. 

The problem is that John Marshall owned people. In fact, he owned hundreds of enslaved people. Paul Finkelman's recent book on that fact (called Supreme Injustice) is well worth reading (at least for the portion about Marshall). In writing my biography of Bushrod Washington, I was struck by Marshall's terrible record on slavery and on race (including various comments that he made in letters). Much of this record was not known until recently, which partly explains why the Chief Justice has escaped the criticism that the other Founders from Virginia now justly receive.

Does this change my opinion of Marbury or McCulloch? Not at all. But do I think that Marshall should be singled out for special recognition within the Supreme Court building? Not anymore. 

Wednesday, August 05, 2020

Reports of the Reagan Era’s Death Are Greatly Exaggerated

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Amanda Hollis-Brusky

Taking Back the Constitution is an ambitious book that covers a wide swath of territory in its attempt to explain, critique and offer alternatives to the contemporary Supreme Court and its constitutional agenda. While it treads over fairly well-trodden territory in its critique of the Roberts Court, Originalism, and the conservative counterrevolution more broadly, it takes a more constructive turn towards the end, offering potential alternatives, “possibilities” (ix), and ways of decentering the courts and judges altogether in favor of a more “popular constitutionalism” (243-257).

Scholars and practitioners interested in future directions and possibilities for constitutional law and judicial politics post-Trump will find plenty of fodder for discussion and debate in this book.
In this essay I want to take to task an assertion that is repeated multiple times in Taking Back the Constitution – that the Reagan Revolution and the Reagan constitutional regime is decaying and will soon be replaced by something else. As someone who keeps close tabs on the Federalist Society and the conservative legal movement, this struck me as startling.  

All the evidence I can find suggests, to the contrary, that the Reagan Revolution is alive; thriving even. I also suggest that President Trump’s record breaking 200 plus appointments to the federal bench – including two Supreme Court justices – will not be a turning point in the conservative constitutional order. Because of who these nominees are, because of their vetting and ties to the Federalist Society network – an organization that, at its core, was designed to nurture, develop and implement the agenda of the Reagan revolution – I suggest that the Trump administration has, in fact, extended the life-cycle of Reagan-era constitutionalism.  

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The difficulty of trying defendants in the courtroom and not the media

Guest Blogger

Jeffrey Abramson

Death penalty cases test the limits of our belief that defendants -- even despised defendants -- deserve trial in court, not in the press.

Consider last week’s federal court decision throwing out Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence.  The court acknowledged Tsarnaev’s admission of guilt for planting the deadly bombs near the marathon finish line. Nevertheless the court set aside the death sentence, since at trial the judge failed to adequately question jurors for bias created by pretrial publicity.

The judge’s mistake was to let jurors certify their own impartiality. No matter how much pretrial publicity they remembered, the judge was satisfied if jurors promised to put its influence aside. But, as Justice O’Connor once observed, a “juror may have an interest in concealing . . . bias . . . [or be] unaware of it.”

If ever there was a reviled defendant, Tsarnaev was it.  He faced the cumulative prejudices that come from being a foreign-born Muslim accused of acts of domestic terrorism against innocent spectators at an iconic sports event. Add to that the killing of a child and two others, the maiming of many more, and the killing of an MIT police officer. If one is ever willing to countenance capital punishment, this would seem to be a fit case. But only if the community can give to Tsarnaev the justice he did not give to his victims.
In Tsarnaev’s case, it would have been a fool’s errand to disqualify prospective jurors for merely following the most dramatic story of the day. The law does not demand the impossible of jurors. But it was incumbent for the judge to question jurors individually about their level of media exposure. He needed to ask not just conclusory questions (“Can you be impartial?”) but open-ended ones (“What do you remember hearing or seeing?).

Up to a point, the trial judge tried to do this.  Of 1,383 persons reporting for jury duty, he  struck 68% for acknowledging that they already concluded Tsarnaev was guilty.  Further questioning reduced the pool to 70.

But then the judge made mistakes.  He refused to dismiss one prospective juror who posted on social media following Tsarnaev’s capture, “Congratulation to all . . . who worked so hard . . .to bring in that piece of garbage." This person made it onto the jury and served as foreperson. Another juror disobeyed instructions by posting to Facebook during jury selection and receiving back messages such as “If you're really on jury duty, this guy’s got no shot in hell."

These examples show how social media complicate the issue of prejudicial media exposure.  As to more traditional press outlets, nine persons made it on to the jury without ever being individually questioned about what specifically they had been exposed to in the news. The judge simply took their word that they could put aside any preconceptions.  These jurors may have believed this about themselves. But the judge needed to be the one making the determination.

As the appeals court noted, it is one thing to know that a person read news stories on the bombings.  It is quite another if the person read and remembered specific articles quoting admired civic leaders calling Tsarnaev a monster, or worse, who did not deserve to live. It would be even worse if a prospective juror read of Tsarnaev’s non-Mirandized, and hence legally inadmissible, statements to federal agents.

Why did the judge not probe more deeply for the effects of pretrial publicity?  Partly, he  might have felt he had done what he could to cure an incurable problem.  But he relied on a hunch that too much probing might create bias where none existed.  The judge said he wanted to avoid directing attention to prejudicial material that prospective jurors may have all but forgotten.  But the “all but forgotten” is the problem: jurors can sincerely believe they are impartial even while prejudicial media coverage latently lurks.
It is a basic premise of our legal system that even guilty defendants have the right to be tried and sentenced in court rather than the press. The Tsarnaev case is a textbook example of why death sentencing is particularly fraught for a defendant as reviled in the media as Tsarnaev was, and still is.
It may be that a death penalty can never be justly imposed. But even those who advocate capital punishment should aspire to have life or death decisions driven by what happens in the courtroom rather than in the media. 

Jeffrey Abramson, author of We, the Jury: The Jury System and the Ideal of Democracy, is a professor of law and government at the University of Texas at Austin. You can reach him by e-mail at

Tuesday, August 04, 2020

Tushnet’s Taking Back the Constitution

Stephen Griffin

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

It probably did not occur to many people encountering Mark Tushnet’s early career work that he would wind up being something of a national treasure in constitutional law.  Despite possessing the dubious virtues of unrelenting honesty and unfailing clarity, he is.  I’ve read most of Mark’s books and for relevance and making a timely punch in the right direction, Taking Back the Constitution is one of the best.  I hope we will have more.

Although it may put off some normatively-minded scholars, I like Tushnet’s characteristic way of making arguments, which amounts to saying: “this is the position we are in” rather than “this is the position we would like to be in.”  This means Tushnet’s analysis is firmly grounded in legal and political reality.  He starts with the assumption that “[t]he Trump presidency shows that the conservative constitutional order has reached the kind of inflection point that produces a new constitutional order.”  Tushnet means to survey the possibilities for constitutional law as the Reagan regime is ending in political time.  But this does not necessarily apply to the judiciary, which exists in their own “judicial time.”  In political time, one party regime replaces another, although Tushnet grants there may be a long interregnum in between.  However, “judicial time” is different and the Republican justices who now control the Court will likely remain for decades.

Tushnet’s book raises many interesting issues and I will not try to even mention all of them.  But his general view of judicial decision making does deserve a comment.  His is a contemporary version of legal realism, seeing judicial decisions as inevitably influenced by “political agendas or policy preferences.”  Law obscures these determinants of judicial decisions with a bewildering variety of forms of argument or argumentative “moves,” as Tushnet puts it.  Although this may seem to be a critique, Tushnet nonetheless works from an internal viewpoint that takes legal reasoning seriously without abstaining from describing the flaws of popular methodologies for making judicial decisions such as originalism.  As a legal realist, when Tushnet looks at a serious methodology like original public meaning originalism, what he sees is an elaborate way of avoiding the reality that judicial decisions, especially with respect to ambiguous clauses, reflect the aforesaid agendas or policy preferences.  Although he does not make the point in this book, Tushnet is well known for being anti-method when it comes to trying to improve constitutional argument (or scholarship) through the use of “theory.”  From his perspective, we should just get on with it.  We should not worry in an overly self-conscious fashion about how we make arguments within the conventions and tradition we already inhabit.  This does not prevent him from adopting useful theoretical innovations, such as the recently advanced distinction between interpretation and construction.

In my view, just as originalists have trouble seeing what a legitimate alternative to originalism looks like, as a legal realist Tushnet has trouble seeing that there might be genuine legal-related (not policy-related) reasons why academic originalists are concerned about the prospects for the rule of law in the United States.  I don’t share their precise concerns, but I’m sure they are real.
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Monday, August 03, 2020

Oleske on Koppelman

Andrew Koppelman

Should religious people who conscientiously object to facilitating same-sex weddings, and who therefore decline to provide cakes, photography, or other services, be exempted from antidiscrimination laws? Last September, in the Annual Law and Religion Lecture at Brigham Young University School of Law, I analyzed a common response: the claim that conservative condemnation of gay sex and marriage is as evil as racism, and those who hold that view should likewise be disqualified from religious accommodations. My talk, forthcoming in the BYU Law Review and just posted on SSRN, disambiguates the racism analogy, which is actually several different analogies. One might be comparing (1) their effects, (2) their moral errors, (3) the evil intentions of those who hold them, or (4) their status as views that are appropriately stigmatized. There are important differences. Religious heterosexism is (5) generally nonviolent. And (6) unlike in 1964, when the Civil Rights Act was passed, religious claims can be accommodated without defeating the point of the law.


The law review is also publishing responses to my talk.  One of them, by Lewis & Clark Law School Prof. James Oleske, is also now on SSRN, here.  Prof. Oleske writes that “Koppelman has not correctly identified the prevailing argument against religious exemptions in the commercial sphere. Rather, he conflates two very different things: (1) the drawing of *legal* analogies between the statutory treatment of race discrimination and other types of discrimination, including religious discrimination, sex discrimination, marital-status discrimination, and sexual-orientation discrimination, and (2) an insistence on treating race discrimination and sexual-orientation discrimination as *morally* and *sociologically* equivalent in all respects. Number 1 is quite common in the scholarship arguing against exemptions. Number 2 is not.”


Prof. Oleske, who has written first rate scholarship in this area, is right that the two issues are distinct. The second is hardly uncommon, as I show with numerous examples in the book from which the lecture is an excerpt, Gay Rights vs. Religious Liberty? The Unnecessary Conflict.  (This blog recently ran a symposium on the book.  My response, with links to the critiques, is here.)  He offers two reasons for insisting on the legal analogies: a slippery-slope argument that the wedding vendors’ claims are “a key part of a larger strategy to resist the normalization of same-sex marriage,” and a claim that, while religious nonprofits can be accommodated, there is something distinctively problematic about allowing any for-profit businesses to discriminate.


To the extent that the second claim is independent of the first, it rests on the cultural significance of the businesses’ refusal, “the importance of preventing the profound indignity of being turned away by businesses otherwise open to members of the general public.”  As I argue in the book, “Any legal resolution of this contestation about meanings will impose an interpretation on some who don’t perceive it.  Sometimes that is necessary, but there are costs.  Drawing an exceptionless line at public accommodations means that it is the Christian wedding vendors who must acquiesce in their humiliation in face-to-face encounters. . . . This controversy has made clear that some people perceive such religious significance in their business activity that they are willing to endure large pecuniary losses rather than do what they think is wrong.  That real-world meaning should influence where we draw the line.” (p. 62)


I appreciate Prof. Oleske’s thoughtful and probing critique.  He also points out that, over the years, I’ve made some inconsistent proposals for addressing this issue.  It’s true.  I’ve changed my mind a few times.  These issues are hard, and I’m grateful for friends like him who keep poking me to do better.

Constitutional meaning at a time of democratic crisis

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Julia Azari

Notorious Supreme Court decisions are central to theories about regime decline in American politics. Leading up to the Civil War it was the Dred Scott decision, which encapsulated not only a court set on preserving the rights of slave states and slave owners, but also the evil of a president who sought to influence the decision. The Court is also a key villain in the drama of the New Deal, striking down the president’s new programs and asserting clunky, unworkable interpretations of federalism and the commerce clause, in opposition to the will of the majority.

Taking Back the Constitution wrestles with the questions posed by this familiar narrative, forcing from them deeper and more nuanced answers about how judicial ideas work within, and at the transitions between, constitutional orders. Part of the project is to envision how constitutional thinking might work in a new progressive political era under a Democratic majority. In my response to this fascinating book, I want to pursue two lines of inquiry. First, what are the roles of Courts and the Constitution in restoring not just a flagging Constitutional regime but a sagging democracy? What role could constitutional law, and those charged with adjudicating it, play in restoring – or perhaps creating for the first time – the ability of Americans to fully, equally, and meaningfully rule ourselves? The second question I ask is how the court and constitutional law might interact with the rest of the institutional environment in order to do so. In order to this, I offer some thoughts about what I anticipate the next political and constitutional order might look like, and consider three potential ways that the Supreme Court might interact with the rest of the political system: making meaning, taking partisan sides, and defending majorities.

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Saturday, August 01, 2020

We just never want to connect the dots between the Constitution and the threats to our national survival

Sandy Levinson

Delaware Senator Chris Coons has an excellent column in the Washington Post warning us that the presidential election is not the only one we have to worry about in November.  If current polls are trustworthy, we may well know on November 4 who the next president will be because Biden will in fact smash the sociopath.  On the other hand, he points out, we might not know about the control of the Senate for weeks, given that a lot of the votes may turn out to be much closer (especially if, as I predict, the dreadful Susan Collins and her fellow "I'm not really a Trumpista" enablers will start advertising the necessity of Maine and other state Republicans to vote for the GOP senators in order to build a barrier against Joe Biden, who will in effect be conceded the presidency in the face of Trump's increasing unpopularity).  Who, he asks, wlil be the Senate Majority Leader on January 3 if some of the votes are still being contested?  That's an all-too-fair question, alas.  We might well expect to see marches in the streets of Portland, Louisville, Raleigh, and, who knows, even Austin, given the stakes of Senate control in 2020.

But what Coons, I want to say "of course," does not do is to point out that we may be in this truly regime-challenging dilemma because of the decision made back in 1787 to give states basic control over the election process.  Over two decades ago, when Bill Eskridge and I published Constitutional Stupidities, Constitutional Tragedies, Jeff Rosen, now the CEO of the National Constitution Center (and professor at George Washington) picked as the stupidest feature this state control of elections, which, among other things, gives highly partisan state secretaries of state the ability to manipulate elections in favor of their own party.  (See Florida, Georgia, and Ohio, among others states.)  We have probably the worst overall system of election administration in the so-called "democratic world."  There are lots of reasons, but one of them is surely this decision of 1787 and our being trapped in its implications.  To be sure, the Elections Clause of the Constitution, plus Sections 5 and 2 of the Fourteenth and Fifteenth Amendments, respectively, or, for that matter, Section 2 of the 26th Amendment, which could easily be read to empower Congress to prohibit the outrageous decision of GOP minions in Texas to allow only geezers like myself--over 65--automatically to be able to vote by mail and to reject the argument that the fear of Covid-19 should be enough to allow younger people to ask for mail-in ballots.  But we all know, as night follows day, that the GOP members of the current Congress are totally and completely unwilling to do anything to clip the powers of GOP states to maintain GOP power.  By any means necessary!  John R. Lewis will very likely get the Edmund Pettus Bridge named after him, but hell will freeze over before Mitch McConnell and his collaborationist allies (including Susan Collins) will vote to renew the clearance procedures of the Voting Rights Act of 1965 that the GOP majority of the Supreme Court gutted in Shelby County.  And, of course, only Congress can cure this problem because the U.S., unlike roughly half the states, does not allow genuine "popular sovereignty" by which "we the People" could wrest control of our destiny away from so-called "representatives" through initiatives and referenda (such as the one in Florida restoring voting rights to felons, a decision that the GOP-dominated Florida legislature is doing its utmost to negate via requiring the equivalent of a poll tax).

There is good reason to fear a partisan national election commission.  Just look at the totally feckless one we've got.  But most countries around the world, including Mexico, have figured out ways to conduct elections in a manner that does not threaten the legitimacy of the overall political system.  As Coons points out, the U.S. has national "democracy" projects that offer advice (and observers) for elections all over the world.  Now, it is advisable to bring in observers from all over the world to monitor our own elections, given the obvious efforts to corrupt them in order to maintain GOP power.
That's the world we now live in, and sooner or later we might begin connecting some of the dots between what Jack calls "constitutional rot" and the decisions made in 1787.  What will it take for intelligent and concerned leaders like Coons (and many others) to realize that the Constitution might be part of the problem?

AMA: Evan Bernick asks about liberal originalism


Now that I have gotten past a bunch of deadlines, I can return to the AMA from last month. Next up are some questions from Evan Bernick:

EB: You’re a liberal. Most originalists are not. Most public officials who claim to be originalists are not. Some nonoriginalists claim that originalism-in-practice is indistinguishable from conservative living constitutionalism. What say you to the charge that you’re reinforcing conservative hegemony by making sophisticated arguments for originalism that don't reflect how judges, etc. are actually wielding power?

JB: We shouldn't take the present situation as fixed. The fact that most originalists today are conservative doesn't mean that this will be the case twenty five years from now. Adrian Vermeule is already arguing for a conservative living constitutionalism based on Dworkin's theories, and Senator Josh Hawley has argued that textualism and originalism may not be the best path forward for the conservative movement.

If politicians like Hawley manage to reshape the conservative movement post-Trump, some (but certainly not all) conservative legal intellectuals will rethink their premises and methods. Some conservatives will effectively abandon originalism, while others will alter it substantially. The changes in thinking among legal intellectuals will be generational, and not everyone will change their minds. But the only thing we can be sure of is that the current originalism/living constitutionalism debate will look very different in twenty-five to thirty years.

Conversely, liberals used to make originalist arguments in middle of the twentieth century, and then they stopped, for complicated reasons. The fact that most liberals today don't like originalism doesn't mean that in the future they won't be attracted to liberal originalist theories like mine.

For many years now, people like me, my colleague Akhil Amar, and the folks at the Constitutional Accountability Center have been showing liberals and progressives why originalism is important to a progressive vision of the Constitution. In the world of ideas, winning people over takes time and persistence. It requires devotion to what you believe in and a determination to make the best arguments you can. Success is not guaranteed, but if you don't make the effort, you will have no influence.

I don't think that liberal originalist work reinforces conservative hegemony. What keeps conservative hegemony in place are much larger political, economic and social forces. If conservative hegemony fades away-- indeed, it is now in the process of fading away-- it will also be because of larger political, economic, and social forces.

I have been arguing for some time-- including in my latest book on The Cycles of Constitutional Time-- that the Reagan era is coming to a close, and that we are going to see a resurgence of liberal and progressive politics-- including constitutional politics. I argue that we are slowly leaving our current Second Gilded Age and moving into the highly contested and contingent politics of a Second Progressive Era.

In the coming regime, there will be a flowering of new ideas about the Constitution, just as there were in the First Progressive Era. All the work I have been doing for the last fifteen years will be available to people in this new era. I hope they find it useful.

Mark Tushnet and the "Next Age" Struggling to be Born

Sandy Levinson

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

It is, of course, no secret that Mark Tushnet has been for many years one of the most prolific—and consistently interesting—members of the American legal academy. (Indeed, the adjective “American” is misleading inasmuch as he is surely one of the leading students of comparative constitutional law in the world.)  Therefore it is no surprise that TAKING BACK THE CONSTITUTION:  ACTIVIST JUDGES AND THE NEXT AGE OF AMERICAN LAW offers a truly illuminating take on our contemporary constitutional situation in the United States.  It is  organized around the reality that our society is sharply divided among various constitutional visions and that one must therefore pay attention, among other things, to the question of which proponents of which visions will in fact control the federal judiciary in the coming years.   We are at the conclusion of one age and must pay attention to the potential “next age” that will surely confront us, quite literally for better or worse.  The connection with the 2020 election is obvious.

What may be mildly surprising is how completely accessible the book is to all of its potential readers.  Although it certainly contains appropriate footnotes, all at the end of the book, it is in fact written in a conversational style.  One doesn’t have to any formal legal training in order to profit immensely from reading the book. 

Indicative of his approach is his treatment of those with whom he disagrees, such as (most of the time), the present majority of the Supreme Court.  Much contemporary discourse, whether in the academy, cable television, or judicial opinions themselves, adopts an almost parodic form of “Dworkinianism” in suggesting that deep reflection will produce “right answers” to the perplexing constitutional questions presented by modern life.  This means, by definition, that those one disagrees with are producing “wrong answers,” and the temptation is to define them as either fools or scoundrels.  They are either inept in performing suitably skilled legal analysis or, what may be even worse, they consciously place their fidelity to law to one side in order to achieve their ideological goals.  Exemplary of this unfortunate rhetorical trope is what I have labeled Antonin Scalia’s “trash talk,” directed at his colleagues with whom he disagreed.  It was not enough to say in Obergefell that he thought their analysis of the Constitution with regard to its requiring same-sex marriage was simply mistaken.  Instead, he accused them of not “acting like judges” or, as in Lawrence, another gay-rights case, self-consciously placing their duties to the Constitution behind their commitment to an elite interest group promoting gay rights.  More than any other single member of the Court, he coarsened its internal rhetoric and thus encouraged everyone else to engage in trash-talking themselves when confronting those they disagreed with about constitutional matters.

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Friday, July 31, 2020

Gov. Scott Walker’s Proposed Mandamus to Compel Congress to Call an Article V Convention

David Super

     After losing his bid for re-election in 2018, Wisconsin Governor Scott Walker enlisted as a consultant for several conservative groups.  Among these groups was one of several seeking to call this country’s first con­vention since 1787 to amend the U.S. Constitution.  Upon taking that position, Gov. Walker announced that he would be visiting several states and persuading leaders there to abandon their resistance to calling a constitutional convention.  Governor Walker claimed that twenty-eight states had already re­quested a convention for the purpose of adding a balanced budget amendment to the Constitution.  He expres­sed optimism that his group would quickly secure another six states.  Article V empowers Congress to call a convention at the request of two-thirds of the states, which is thirty-four. 

     The details of Gov. Walker’s visits are not publicly known, he likely learned what has long been appar­ent to others:  many Americans of all political persuasions are unwilling to throw our Constitution open to the whims of the special interest groups that likely would dominate an Article V convention.  Since assuming his new role, the number of states requesting an Article V convention has stagnated.  Indeed, if anything the momentum is away from holding a convention as four states – Delaware, Maryland, Nevada, and New Mexico – rescinded decades-old resolutions calling for an Article V convention. 

     Perhaps frustrated by opposition in state legislatures, Gov. Walker recently proposed turning to the federal courts.  In a presentation at the American Legislative Exchange Council (ALEC), Gov. Walker suggested that one or more of the state attorneys general should file a mandamus action against Congress in federal court seeking an order compelling Congress to call an Article V convention. 

     Such an action would be wholly unsustainable under existing law and precedent.  In Spallone v. United States, 493 U.S. 265, 279 (1990), the Court overturned contempt fines against city councilmembers whom it agreed had violated both civil rights laws and a consent judgment to which they had agreed.  Writing for the Court, Chief Justice Rehnquist “emphasized that any restriction on a legislator’s freedom undermines the ‘public good’ by interfering with the rights of the people to representa­tion in the democratic process.”  He went on to note that the doctrine of legislative immunity prohibited both injunctions and damage awards against state officials acting in a legislative capacity.  If respect for voters’ right to control their elected legislators overrides even the Supremacy Clause, it certainly would not allow courts to order Congress to legislate in any particular manner. 

     Moreover, no federal statute authorizes such suits against Congress.  Under 28 U.S.C. § 1361, federal courts may issue writs of “mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”  Congress is not an agency of the United States, and the Speech and Debate Clause prohibits any court from so much as questioning Members of Congress about any of their legislative actions.  Art. I, sec. 6.  It also is doubtful that, even if Congress was required to call an Article V convention, that would be a “duty owed to” any state attorney general.  The Supreme Court has repeatedly emphasized that Article III requires plaintiffs to have particularized interests, beyond a general desire to uphold the law, to invoke federal courts’ jurisdiction.  Raines v. Byrd, 521 U.S. 811 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); see Blessing v. Freestone, 520 U.S. 329 (1997).

     The Supreme Court has warned against inferring the right to sue federal officials without clear statutory authority. E.g., Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). 

     Most simply, Coleman v. Miller, 307 U.S. 433 (1939), held that issues concerning how the Constitution is amended are “political questions” into which the courts may not intervene. 

     Even if a court did agree to hear this case on the merits, Gov. Walker and his allies would have no basis for prevailing.  After spending more than a decade and vast sums of money, they have failed to convince states that an Article V convention is safe and wise.  Indeed, their claim to have twenty-eight live state resolutions depends on counting about ten from the 1970s and early 1980s that were passed as part of a previ­ous, also failed, attempt to persuade states to call an Article V convention on a balanced budget amend­ment.  Con­gress could well interpret Article V as requiring that two-thirds of the states request a conven­tion more or less simultaneously.  Since 1917, Congress often has required proposed constitutional amendments to be ratified within a finite number of years, typically seven, in order to be effective.  See U.S. Const. amdts. XVIII, XX, XXI, XXII.  Although “the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including…receiving, judging, and recording state applications [and] establish­ing procedures to summon a convention”.  Thomas H. Neale, Cong. Research Service, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress 4 (R42589 April 11, 2014).  These are all highly discretionary, political choices. 

     Gov. Walker’s proposal that a federal court order Congress how to exercise its discretion over which state resolutions to count is strikingly inconsistent with principles conservatives ordinarily espouse, including limits on judicial overreach and respect for the separation of powers.  The notion that the judiciary may supervise the political decisions of the two other branches was rejected as early as Chief Justice John Marshall’s landmark decision in Marbury v. Madison, 5 U.S. 137, 165-66 (1803):

By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discre­tion, and is accountable only to his country in his political character and to his own conscience. … [A]nd whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.

     These principles apply with even greater force to Congress, whose responsibilities are wholly political.  By Gov. Walker’s reasoning, Judge Merrick Garland could have brought a mandamus action to compel the U.S. Senate to give its “advice and consent” as to whether he should serve on the Supreme Court.  Indeed, Judge Garland would have had a stronger case than the ­attorneys general Gov. Walker imagines suing to force an Article V convention because he had a strong, particu­larized personal interest in congressional action.   

     To get from their claimed twenty-eight states to the necessary thirty-four, Gov. Walker embraces a fringe legal theory that would count six very old resolutions from states that sought an Article V convention without specifying a particular purpose.  The oldest of these, from New York, was passed in 1789 out of concern that the original Constitution lacked a Bill of Rights.  None of the six (from Illinois, Kentucky, New Jersey, New York, Oregon, and Washington) has anything to do with the proposed balanced budget amendment.  Congress has never counted these resolutions when determining if the two-thirds threshold has been met.  Indeed, if it had counted such generic resolutions, it would have called conventions both early in the twentieth century (on the popular election of senators) and in the 1980s (on the balanced bud­get amendment).  That Article V convention proponents have been working intensely on this issue for over a decade and only first floated this idea two years ago – when their efforts in the states stalled – sug­­gests that this is more of an argument of convenience than a serious legal theory. 

     As strange as their legal arguments are, Gov. Walker and his allies must be taken seriously.  An Article V convention, particularly in the current polarized environment, could do incalculable damage.  Although proponents like to trot out crowd-pleasers like term limits, a balanced budget amendment, or (on the left) overriding Citizens United, once a convention opened it would be free to change any part of the Constitution or could rewrite it from scratch.  Nothing in Article V (or anywhere else in the Constitution) limits conventions to single purposes or empowers Congress, state legislatures, or the courts to limit the convention’s scope.  Indeed, even in Gov. Walker’s presentation to ALEC panelists mused about a variety of other constitutional amendments they would like to entertain.  How a convention might operate is completely unknown:  Gov. Walker and his allies argue that each state should have a single vote, but California would surely object on one-person-one-vote grounds to giving the same weight to its 39.5 million people as is given to the 600,000 in Wyoming.  And although Article V declares that proposed amendments require ratification by three-quarters of the states, a convention could disregard these rules just as the Philadelphia Convention of 1787 disregarded the ratification requirements in the Articles of Confederation. 

     Once the various well-funded special interests had their say, our Constitution might well be fundamentally changed in ways that would be difficult to correct.  At a time when respect for the rule of law is at a historic low, opening up the Constitution would be a reckless gamble. 


There Are No Balls and Strikes in Constitutional Hardball

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

D. A. Jeremy Telman

Critical theory encourages skepticism with respect to master narratives.  Mark Tushnet has contributed as much as anybody to the introduction of critical theory into legal scholarship, and yet for the first two-thirds of his new book he provides a master narrative of the jurisprudence of the Roberts Court from the perspective of his critical realism.  Tushnet’s account, like all such accounts, avails itself of literary tropes in order to render disparate developments coherent.  Such techniques yield unique insights made possible through strategic blindness.  Tushnet’s narrative is satisfying, in part because it acknowledges its incompleteness, in part.  His account is brisk and engrossing, economical and inventive.  The problems with Taking Back the Constitution mostly arise when he builds upon his fictive narrative to offer strategies for realizing a new progressive constitutional order.

For the first two-thirds of the book, Tushnet unmasks Chief Justice Roberts’ claim that judges just “call balls and strikes.”  Judges exercise what Chief Justice Marshall called “a legal discretion,” in which they choose among legal doctrines, interpretations and constructions of legal texts, and different ways of identifying and characterizing the relevant facts.  Such legal discretion suffices, in the tools of a skilled practitioner of the judicial trade, to produce numerous outcomes, all well-supported by legal reasoning.  This is so, Tushnet shows in his discussion of Yates v. U.S. (pp. 5-9), even when the commitments that divide the Justices are not political.  But Yates is not different from the most divisive constitutional cases: judges always engage in what Justice Kagan described as doing “law all the way down.”

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Thursday, July 30, 2020

A Weak Assumption in the Discussion of Gorsuch in Bostock

Richard Primus

                A lot of virtual ink has been spilled on Justice Gorsuch’s opinion for the Court in Bostock.  Much of it has adopted the frame that Gorsuch followed his jurisprudential principles—specifically, a commitment to a certain kind of textualism—even though it led him to a result that isn’t congenial to his side of the ideological divide.  I understand why people have adopted that frame.  But I want to suggest that discussing his opinion in those terms misses something pretty important.  It’s this: Why, exactly, should we think that Justice Gorsuch, as a matter of his personal normative commitments, has anything against employment-discrimination protection for LGBT+ persons?

                That’s the way the question needs to be posed.  After all, in much of the conversation about the significance of Gorsuch’s having decided for the plaintiffs in Bostock, the key point is that his opinion demonstrates the good-faith seriousness with which he takes his jurisprudential principles and that it does so in the best possible way: by demonstrating that he will follow those principles where they lead, even if he doesn’t like the result.  But “he followed his principles and not his preferences” only makes sense here if we think that Gorsuch would prefer a world in which employers were free to discriminate on the basis of sexual orientation and gender identity.  That might be true of Justice Alito, and it certainly seems true of Senator Josh Hawley.  But I don’t see why I should assume it of Gorsuch.

                I don’t say this because I have any special insight into Gorsuch’s views on social and moral questions about sexuality.  I don’t think I do.  What I know is that he is a white man in his early fifties, raised in Denver and D.C., who attended a series of elite universities and has since inhabited the world of the coastal legal elite (whether in D.C. or back in Denver).  Regardless of party affiliation, that profile predicts pretty progressive views—as compared, say, to the median American voter in 1985—on LGBT+ issues.  So it seems to me likely that when liberals look at Gorsuch’s Bostock opinion and think that he chose his jurisprudence over his policy preferences, they are making the mistake of painting all Republicans (or all senior Republican-appointed officials, or…) as holding views on this issue that are opposed to their own.  That picture badly misrepresents the world.  On the contrary, it’s precisely because the Republican-affiliated legal elite has for a long time contained a lot of people who disagree with social-conservative positions on sex and sexuality that the jurisprudence of sex and sexuality has come as far as it has during the last half-century, at a time when the Supreme Court has at all times had a Republican-appointed majority.

                If Justice Gorsuch qua citizen thinks that discrimination on the basis of sexuality or gender identity is wrong—or even if he just doesn’t have any strong commitment to wanting such discrimination to be permitted—then Bostock didn’t confront him with a conflict between his jurisprudence and his personal preferences.  That’s true even if he might have been skittish about the ruling on destabilization grounds or even if as a legislator he might have wanted to find a balance between the legitimate equality demands of LGBT+ persons and the liberty interests of private employers.  In any of those cases, it might be true that he wasn’t raring to impose liability for discrimination against LGBT+ persons, but the prospect of such liability also wouldn’t be a hard thing for him to swallow in the way that it would if he were simply homophobic. 

                I think Bostock was rightly decided, mostly for the reasons Gorsuch gave.  I’m glad he thinks so, too.  And again, I am not making any assertions about his actual views or his actual thought process as the case was before him.  I’m just pointing out—and I think it’s worth pointing out—that the standard framing of the case seems to have made a big (and for most of the assumers, unflattering) assumption about him, and I think that assumption should be treated with some skepticism. 


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