Friday, July 20, 2018

Hitlerian aspects of Trumpism

Sandy Levinson

One should begin with the obvious point that Donald Trump is not Adolf Hitler.  Trump has no obvious commitments beyond self-aggrandizement.  In foreign policy, he seems to be far more an isolationist than someone eager to expand American influence (save through trade wars).  He is more than willing to engage in dog whistles to white supremacy, but even his most vitriolic opponents, among whom I'd count myself, do not believe he has set out a path to a Final Solution, etc.

So why bother to engage in the undoubtedly incendiary comparison of Donald Trump and Hitler?  The quick answer involves a page from a new book I'm currently reading, Benjamin Carter Hett's THE DEATH OF DEMOCRACY:  HITLER'S RISE TO POWER AND THE DOWNFALL OF THE WEMAR REPUBLIC,  a short well-written overview of what was obviously one of the key moments of 20th century political and social history.  The striking discussion occurs on p. 38:

.... While working as a reporter in Munich, Konrad Heiden, a Social Democratic journalist and Hitler's first important biographer, witnessed Hitler speaking many times.  "At the highpoints of his speeches," Heiden wrote, "he is seduced by himself, and whether he is speaking the purest truth or the fattest lies, what he says is, in that moment, so completely the expression of his being . . . that even from the lie an aura of authenticity floods over the listener."  On the other hand, Hitler's finance minister, Count Lutz Schwerin von Krosigk, observed, "He wasn't even honest towards his most intimate confidants. ... In my opinion, he was so thoroughly untruthful that he could no longer recognize the difference between lies and truth."
And, of course, as Hett notes, it was Hitler (and Goebbels) who emphasized the importance of the "big lie."  "In 'the greatness of the lie there is always a certain element of credibility,' Hitler explains, 'because the broad masses of a people can be more easily corrupted in the deeper reaches of their hearts' than consciously or deliberately. 'In the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves sometimes lie about small things but would be too ashamed of lies that were too big.'"

It has been reported, in part based on a statement by hist first wife Ivana and seemingly confirmed by Donald, that a friend had given him a copy of Hitler's speeches (as distinguished from Mein Kampf).  The crucial point is that it can scarcely be denied that we have a pathological liar as president who has seemingly turned that into a feature of his political success.  What is more ominous, in many ways, is the willingness of the GOP to serve as collective useful idiots in Trump's behalf (in order to get the judges they want and tax cuts for the rich), not to mention the stunning support that Trump  continues to receive from the Republican base.

Many "sophisticates" in 1933 believed that they could control the clown who had become Chancellor and therefore gain their own objectives.  Trump might not be Hitler, save in his propensity to lie, but Ryan or McConnell etc. may be the von Papens who believed that they could successfully ride the tiger.  They should be consigned to the 10th circle of hell even ahead of Trump, since as a pathological narcissist he really can't help himself, whatever the consequences for the American constitutional order.  What excuses do Ryan and McConnell have?

Wednesday, July 18, 2018

Birthright Citizenship and the 14th Amendment

Gerard N. Magliocca

Michael Anton is a former official in the Trump Administration. He is best known for writing (under the pseudonym Publius Decius Mus)  the "Flight 93" essay during the 2016 presidential campaign, in which he slandered the memories of the passengers of that doomed flight on September 11th, 2001 by comparing their courage to people who should vote for Donald Trump.

In today's Washington Post, Anton celebrates the 150th anniversary of the Fourteenth Amendment by distorting its first sentence. In "Citizenship Shouldn't Be A Birthright," Anton argues that the original understanding of that text excludes people born here to illegal immigrant parents from citizenship. Section One of the Fourteenth Amendment provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States thereof . . ." Anton says that "subject to the jurisdiction" means "not owing allegiance to another country," which would thus exclude children born here to illegal immigrant parents. (Why children born here owe their allegiance to another country is not explained, but that's just one of the many problems with Anton's article.)

I wrote a law review article ten years ago explaining why Anton's argument is wrong. You can read that paper here. "Subject to the jurisdiction," means exactly what you would think from reading that phrase--"subject to American law." Illegal immigrants are, of course, subject to American law. That is why they can be deported. And why their children born here are citizens.

Suppose you are not convinced by my article. After all, I don't support President Trump. So I give you Judge James Ho, named by the President to the Fifth Circuit last year. Judge Ho has impeccable originalist credentials, as a law clerk to Justice Thomas, the Solicitor General of Texas, and a leading private practitioner before he took the bench. When he was in practice, Judge Ho demolished the Anton argument is a couple of published articles (such as here and here). Look at a key passage:

Proponents of ending birthright citizenship claim that aliens--lawful and unlawful--are not "subject to the jurisdiction" of the U.S. because they swear no allegiance to the United States. But neither the text nor the history of the 14th Amendment supports this conclusion. 
When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance. 
The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine. 
Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship --but no one disputed the amendment's meaning. Opponents conceded--indeed, warned -- that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.
Thus, Anton's claim that "judges faithful to their oaths will have no choice but to agree" that birthright citizenship does not extend to the children born here to illegal immigrant parents is preposterous. Mr. Anton is free, like anyone else, to support for a constitutional amendment that restricts birthright citizenship. He cannot, though, escape the truth that the Constitution as written rejects his view.

A Question for Judge Kavanaugh

Gerard N. Magliocca

I have never met Judge Brett Kavanaugh. I know him only by reputation. And his reputation is stellar. He is a fine circuit judge and is obviously qualified to sit on the Supreme Court. Moreover, I have supported the confirmation of every Supreme Court nominee during my professional career except Harriet Miers, who was in my view manifestly unqualified for such a position.

Nevertheless, there is something that bothers me about Judge Kavanaugh. Hopefully someone will ask him about this subject during his confirmation hearings. In his speech thanking the President, Judge Kavanaugh said "No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination."

Now if I wrote that sentence in law review article, the first question I would have to answer is: "What is the basis for that statement?" In other words, why do I think this is true? In Kavanaugh's case, the answer is that he cannot possibly know that what he said is true. First, he was not privy to all of the President's conversations about the nomination. Second, he was not privy to the vast majority of the conversations about prior nominations. Third, I see no reason to think that the statement is true.

This leads to a rather unfortunate conclusion. Judge Kavanaugh's first statement to the American people as a Supreme Court nominee was either sloppy, false, or dictated to him by the White House. (It sounds a lot more like something that the President would say.) I don't think this is praiseworthy.

To be fair, Prime Minister Hacker once pointed out that "press statements aren't made under oath." I can certainly understand that hyperbole can happen after receiving the honor of a lifetime. But I think that the Judge might want to consult a little more widely before he makes the same claim under oath.  

Tuesday, July 17, 2018

Vladimir Putin Follows Legal Blogs

Gerard N. Magliocca

One remarkable portion of Chris Wallace's interview with the Russian President yesterday is that Putin explained that he was aware of the argument that Special Counsel's Mueller's appointment is unlawful. (Presumably Putin was referring to Steve Calabresi's argument, as I'm unaware of another.) President Putin proceeded to misstate that argument, as he said Mueller's appointment "by Congress" might be illegal under "American legislation." Perhaps Putin didn't have time (with the World Cup and all) to read George Conway's reply to Calabresi.

Who knew constitutional law professors had such a global reach.

Sunday, July 15, 2018

The Loss of the Filibuster and Judicial Confirmation Reform

David Super

     Several commentators are chiding Senate Democrats for procedural missteps that allegedly destroyed their leverage in the confirmation process for Justice Kennedy’s replacement before it even began.  Some criticize Senator Reid for having abolished the filibuster for lower-court nominees, establishing a precedent Senator McConnell invoked when he eliminated the filibuster at the Supreme Court level.  Others criticize Democrats for attempting to filibuster Justice Gorsuch’s nomination, prompting Senator McConnell to act so that the filibuster is not available now.  Neither of these complaints stands up to serious scrutiny.  On the other hand, Democrats’ lack of imagination in 2014 may have cost them an opportunity at least to put Senator McConnell in an awkward position and possibly to garner a more moderate conservative nominee.

     Democrats effectively lost most of the benefit of the filibuster against judicial nominees well before Senator Reid invoked the “nuclear option.”  During President George W. Bush’s administration, Senate Republicans repeatedly threatened to use the “nuclear option” to end the filibuster for judicial nominations in order to force Democrats to accept confirmation of numerous judicial nominees.  Initially Democrats tried being highly selective with their use of the filibuster, allowing through a number of nominees with extreme and troubling records.  When even that was insufficient to placate Republicans, Democrats reached an agreement with Republican senators to allow confirmation of some judges whom had raised serious red flags in exchange for Republicans not employing the “nuclear option.”

     Once Senate Republicans made clear that the filibuster would last only so long as it did not significantly get in their way, it had become effectively useless to Democrats.  At most, it could provide a convenient way of disposing of nominees who had sufficiently embarrassed themselves that Republicans would not want to have them be the public face of the change in Senate procedures.

     Once the filibuster ceased to be useful to Senate Democrats, Senator Reid acted sensibly in denying it to both parties alike.  Senate Republicans gave him little choice, all but shutting down the confirmation process (at least for circuit court nominees) even when nominees raised no particular red flags.  Senate Republicans, astutely, declined to make the kind of deal that Democrats had under President Bush:  to keep the appearance of a filibuster in exchange for a promise not to use it.  Indeed, Senator Reid’s approach was considerably more moderate, and hence less effective, than it could have been:  his rule allowed the minority party to burn off considerable chunks of precious Senate floor time in opposing nominees.  By making the majority party pay a high price for each nominee, this restored confirmation pipeline became a relatively narrow one.  This concession contributed to the number of judgeships remaining unfilled when Republicans won the Senate in 2014 and began blocking nominees wholesale. 

     The same principle applies to the attempt to filibuster Justice Gorsuch’s nomination.  A filibuster that can continue only so long as Democrats never invoke it serves no useful purpose for them.  Indeed, with Senator McConnell and others hinting that they might continue to block Supreme Court nominees for the next four years should Hillary Clinton have won the 2016 election, the situation was entirely parallel to that which led to the elimination of the filibuster for lower-court nominees.  Had Senate Democrats not forced Senator McConnell to choose between the filibuster and Justice Gorsuch’s nomination, Senate Republicans would have happily collected their confirmations and then turned around and filibustered the next Democratic president’s nominees. 

     Indeed, Democrats made the sensible choice in forcing Republicans to eliminate the filibuster over Justice Gorsuch’s nomination – which was tainted procedurally by Republicans’ refusal to consider Judge Garland’s nomination – than waiting for a nomination for a vacancy naturally occurring during President Trump’s term in office.  To be sure, the defeat of Roy Moore and the illness of John McCain have unexpectedly narrowed Republican control of the Senate.  The choice to press the issue against Justice Gorsuch, however, would only prove mistaken if some Senate Republican would vote to confirm Judge Kavanaugh but would not vote to support the elimination of the filibuster when asserted against him.  That such a senator might exist is not inconceivable, but it seems most unlikely with a high-profile nomination like this one:  the pressure to fall into line to ensure Judge Kavanaugh’s confirmation would be ferocious either way.  Going through the “nuclear option” process now might have taken a bit more time, but at this point Senator McConnell is delighted to keep the Senate in session so that vulnerable red-state Democrats cannot go home to campaign.

     That being said, Senator Reid did miss an opportunity to transform the judicial confirmation process in a way that could have been quite embarrassing for Senator McConnell to undo.  He could have considered alternatives beyond blocking most significant nominees (i.e., always allowing the filibuster) and allowing all but the most embarrassing nominees through (i.e., fully extinguishing the filibuster).  A middle ground might be to give the President the option to avoid the filibuster in exchange for accepting some constraints on who is nominated in a way that would moderate the harm to the minority party. 

     In other settings where the filibuster is disallowed, Senate procedures seek to limit the scope of actions that a bare majority may take.  This, when an expert, non-political commission recommends closing military bases, legislation to implement those recommendations has enjoyed substantial procedural protection not available to routine legislation on the subject.  When the Senate invokes cloture on legislation, further amendments must meet strict germaneness rules designed to keep unpleasant surprises from being smuggled in after senators have surrendered their most important defensive weapon.  Legislation to rescind appropriations is immune from filibuster but only if it meets the terms of the Impoundment Control Act.  The content of budget reconciliation legislation similarly is immune from filibuster but constrained by the Byrd Rule.  These limits matter:  the Affordable Care Act might well have died last year had not the Byrd Rule constrained the sweeteners the Republican leadership could offer its wayward senators, and a few sweeteners might have gotten President Trump’s rescission package through the Senate this summer. 

     I have written elsewhere about a process analogous to the one New York relies upon to select its high court judges.  The Senate majority and minority leader would each appoint members of a commission that would develop lists of candidates for various courts.  The Senate could provide by its rule-making power that any presidential nominee on the commission’s list would be assured of an up-or-down vote, immune from filibuster (and entitled to automatic discharge from the Judiciary Committee after a certain number of days and a privileged motion to bring the nomination to the Senate floor for a vote).  The President would remain free to nominate whomever the President pleases, but then the usual Senate procedures (including the filibuster and the majority leader’s prerogative to decline to bring up the nominee for a vote) would apply to nominees lacking the commission’s blessing. 

     One can imagine that the current majority and minority leaders would appoint fierce partisans to such a committee, and perhaps initially it would deadlock.  People of the gravity to be appointed to such a commission, however, tend not to like to waste their time, and unlike senators they do not risk primary challenges if they acknowledge merit in some members of the other party.  Eventually a system of trades would arise, with the opposition party agreeing to some relatively moderate candidates whom the President might like in exchange for adding to the roster some candidates a future president of their party might choose.  Republican Presidents would still appoint conservatives and Democratic Presidents would still appoint liberals, but the need to garner some acquiescence from the opposing party – either senators willing to end a filibuster or commission members willing to sign off on a potential nominee – would tend to moderate the selections. 

     This would, of course, preclude any dramatic Democratic conquest of the judiciary whenever the party retakes the White House, but the odds of that happening are remote in any event.  This also would end the bizarre phenomenon of judges disqualifying themselves for elevation by showing wisdom, moderation, and independence.  And it would largely end the practice of running on a list of prospective judicial nominees, which tends to empower extremists.

     Had Senator Reid instituted such a system when he first acted against the filibuster, Senator McConnell might have had some difficulty explaining why he was undoing it.  And if Democrats endorsed something along these lines now, that might move some Republican senators with qualms about any of President Trump’s appointees who nonetheless do not want to leave open a seat to be filled eventually with a left-wing Democrat.  

Friday, July 13, 2018

The Unintended Consequences of Originalism

Gerard N. Magliocca

The nomination of Judge Kavanaugh to the Supreme Court will raise the profile of originalism in public life, though his confirmation hearings and some of his subsequent opinions. Many people are understandably focused on how a more originalist approach would influence doctrine (say on Roe v. Wade). I want to discuss briefly a different effect that originalism may have on the wider culture.

In May, Illinois ratified the ERA. The lead sponsor of that effort in the state House of Representatives explained on the floor that the amendment was necessary because the Constitution as written does not protect equal rights for women. His authority for that proposition was Justice Scalia. In 2011, Justice Scalia gave an interview in which he said: "Certainly the Constitution does not require discrimination on the bass of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that's what it meant. Nobody ever voted for that." The Illinois Representative offered this as support for the argument that the ERA is necessary to protect sex equality. (In what we in the trade call "ironic," this same representative was accused of sexual harassment the next day and resigned his party leadership post in the Legislature.)

One way of describing this argument is fear-mongering. The doctrine is there for sex equality. And a Supreme Court full of originalists is unlikely to repudiate those precedents. Nevertheless, it would be hard to deny that many people might worry (rightly or wrongly) about a constitutional rollback of gender equality. There are two plausible responses. One is to oppose the confirmation of certain types of Justices. The other is to ratify the ERA and make Justice Scalia's comment obsolete. Thus, an unintended consequence of changing the balance of the Court may be a new Article Five amendment.

Broadly speaking, this development is consistent with the originalist vision. The Constitution should be formally amended rather than changed significantly through interpretation.  Taken seriously, an originalist Constitution ought to be much longer than the one we have. The ERA would be a start.

Tuesday, July 10, 2018

Talking about Judge Kavanaugh as a Justice

Mark Tushnet

It's excruciating to read stuff about Judge Kavanaugh as an "originalist," a "textualist," a "conservative in some political theory sense." You want to know how he's going to vote as a Justice over the next few years? (The time qualification is relevant.) 

The first question to ask is whether there is a mainstream Republican conservative view on the issue presented. (a) If there isn't, we have no way of knowing what a Justice Kavanaugh would do. (But, if there isn't, not many ordinary people are going to care. I have a professional interest in seeing how Justices deal with the question of whether a fish is a tangible object, but no sensible person without such an interest cares.) (b) If there is, Justice Kavanaugh will find the mainstream conservative view compelled by "the law." The only interesting question will be how emphatically he talks about compulsion.

The next question, though, is whether there's a difference between the establishment Republican conservative view on the issue and the Trump-Republican view on the issue. If there is, a Justice Kavanaugh will probably find the establishment Republican view more persuasive than the Trump Republican view, though his opinion, if he writes one, will make some concessions to the Trump Republican view (on the implicit theory that Trump Republicans might become the establishment over the next few years). The distinction the Chief Justice drew in the travel-ban case between "this President" and "the Presidency" will have some weight in Justice Kavanaugh's thinking.

Over the course of his time on the Court, the issues of interest to conservative Republicans will change. (There will be a conservative Republican view about legal regulation of artificial intelligence, but we have no idea what that view will be.) The chances are high that even as the issues change, Justice Kavanaugh's positions will not change relative to that of then-existing conservative Republicanism. (Ideological drift, the weaponization of the First Amendment, and all that.) But there's some chance that on some issues he'll be stuck in establishment conservatism circa 2010-15, and might occasionally become a "maverick."

Not for a while, though. Here's a thought experiment/prediction. Suppose Democrats manage to win enough elections to enact Medicare for all in 2022 or 2026, over concerted Republican opposition. Justice Kavanaugh will hold that, though there are constitutionally permissible ways to enact Medicare for all, the one the Democrats chose was unconstitutional on some yet-to-be-devised (but probably lurking somewhere in the Heritage Foundation's papers already) constitutional theory.

"Repealing" Roe v. Wade

Mark Tushnet

A non-trivial number of comments on the Supreme Court going forward refer to the possibility of "repealing" Roe v. Wade. The term isn't universal, of course; there are a lot of references to "overturning" or "overruling" Roe. But the use of the term "repeal" does suggest that the idea that the Supreme Court is like a legislature whose enactments can be repealed (remember "Repeal and Replace"?) has some significant cultural purchase -- and it's a good thing it does.

Brett Kavanaugh's Cliches

Mark Graber

Donald Trump and Brett Kavanaugh offered the American people two clichés when describing how Supreme Court justices should decide cases.  The first is that they must interpret the Constitution as written.  The second is that they should use common sense.  One problem is that in many important cases the two conflict.  The more serious problem is that when the two conflict, Kavanaugh always selects the option that promotes Republican policies and politics.

The Constitution as written belies Kavanaugh’s claims that sitting (Republican) presidents cannot be indicted.  No provision in the Constitution explicitly forbids the indictment of a sitting president.  No provision was self-consciously intended to forbid the indictment of a sitting president.  Of course, an indictment would interfere with presidential duties, but indictments also interfere with the duties of every federal officer mentioned in the Constitution, every federal officer not mentioned in the Constitution, every private person whose actions are of consequence to the federal government, every state official (did someone say 10th Amendment), and every private person whose actions are of consequence to state governments.  For that matter, if we are worried about a distracted president, then the president’s family, friends, and businesses should be immune to criminal processes.  We ought not put down the president’s dog for fear of upsetting the president, even if the dog has rabies and has been biting children.  Common sense permits us to make some distinctions, but none of these distinctions are rooted in the Constitution as written.

If, however, common sense is our guide, then Kavanaugh’s claims that persons have a Second Amendment right to bear assault weapons and that the federal government may prevent a very pregnant alien teenager from having an abortion fall by the wayside.  Common sense and the English language make clear that something called an “assault rifle” is not primarily a defensive weapon.  Common sense and basic human decency make clear that one should not delay abortions for very pregnant frightened teenagers, particularly those who have a limited understanding of the medical system in the United States.  The Constitution as written might be construed to defy common sense, but the arguments for assault weapons and forcing pregnant teenagers to become mothers are rooted solely in the written Constitution, not common sense.

These contradictions bother neither Trump nor Kavanaugh.  When the Constitution as written interferes with Republican policies, they argue common sense.  When common sense interferes with Republican policies, they argue the Constitution as written.  When both are inconsistent with Republican policies and politics, no doubt a different cliché will be trotted out.  That Trump choose the only justice on the short list whose career outside the court was devoted to the single-minded pursuit of Republican party policies and politics says far more about would-be Justice Kavanaugh’s judicial commitments than the clichés uttered when he was nominated.

UPDATE:  Several people have noted that the Minnesota Law Review article in question declares only that Kavanaugh has "serious questions" about whether a president can be criminally indicted.  But, the very slightly modified version of the argument goes, a textualist ought not have serious questions, since the text nowhere indicates presidential (or congressional or judicial) immunity from criminal process.  Such immunity might make common sense and might be consistent with purposive interpretation, but then we are discussing judicial discretion rather than calling balls and strikes.

Monday, July 09, 2018

The 150th Anniversary of the Fourteenth Amendment

Gerard N. Magliocca

On July 9th 1868, the Fourteenth Amendment became part of the Constitution. Abraham Lincoln once said that the Constitution is the silver frame that surrounds the golden apple of the Declaration of Independence. Since Section 1 of the Fourteenth Amendment put Jefferson's language on equality into our higher law, I often wonder whether we should think of John Bingham's text as the golden apple and the rest of the Constitution as the silver frame.

On this anniversary, the President will make his next nomination to the Supreme Court. Tonight and in the coming weeks we will hear a great deal about keeping faith with the Founders. Unfortunately, when many people refer to the Founders they mean only the drafters of the flawed document ratified in 1788. They are either unaware or dismissive of the people who saved the Constitution in 1868. We should keep faith with them as well.

In describing Section One of the Fourteenth Amendment to voters in Ohio, Bingham said this:

No state shall deny to any person, no matter whence he comes, or how poor, how weak, how simple--no matter how friendless--no State shall deny to any person within its jurisdiction the equal protection of the laws. If there be any man here who objects to a proposition so just as that, I would like him to rise in his place and let his neighbors look at him and see what manner of man he is. [Nobody stood.]

Thursday, July 05, 2018

Treating Republicans like...

Mark Tushnet

I'm uncertain about whether the following is unworthy of me, but I find it irresistible: Max Boot, in the Washington Post -- "Like postwar Germany and Japan, the Republican Party must be destroyed before it can be rebuilt." My position was not about "destroying" anyone, but about a stance progressives should take in negotiating over culture war issues.We'll see if Boot's op ed attracts the same response as my "take a hard line in negotiating" post did. (Probably not, because it won't generate the anti-semitic and "he's senile" reactions.)

Wednesday, July 04, 2018

The Political Economy of Freedom of Speech in the Second Gilded Age


We are now well into America’s Second Gilded Age. The First Gilded Age was the era of industrial capitalism that begins in the 1870s and 1880s and continued through the first years of the 20th century, ultimately giving way to the reforms of the Progressive Era. The First Gilded Age produced huge fortunes, political corruption, and vast inequalities of wealth, so much so that people became concerned that they would endanger American democracy.

The Second Gilded Age begins, more or less, with the beginning of the digital revolution in the mid-1980s, but it really takes off in the early years of the Internet Age in the mid to late 1990s, and it continues to the present day--characterized by the rise of social media, and the development and implementation of algorithms, artificial intelligence, and robotics. For this reason I call our present era the Algorithmic Society.

If the First Gilded Age is the age of industrial capitalism, the Second Gilded Age is the age of digital or informational capitalism. It too has produced great fortunes and led to concerns that increasing concentrations of wealth and economic inequality are endangering American democracy.  Like the First Gilded Age, it is also a time of deep political corruption and despair about the future of American democracy. It has not yet produced a second Progressive Era, yet every day I see signs that this is where we are headed.

There is a large literature criticizing the judicial doctrines of the First Amendment, and how they are slanted toward the interests of corporations (and capital generally) in the Second Gilded Age. The most obvious examples are the federal courts’ recent decisions on commercial speech and campaign finance regulation. These are interesting and important topics, but they are not the subject of this blog post.

My focus here is on the political economy of free speech in the digital age.  The basic question is this: How does our political and economic system pay for a digital public sphere? It pays for it largely through digital surveillance and through finding ever new ways to make money out of personal data.  Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unbounded freedom to speak in exchange for the right to surveil, govern,  and manipulate end-users.

The recent Facebook/Cambridge Analytica controversy is a characteristic scandal of the Second Gilded Age. That is because it laid bare how social media companies make their money and how they shape the public sphere in the process. The scandal also reveals a basic problem of freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy.  This is the irony of the digital era: An era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The infrastructure of digital free expression is also the infrastructure of digital surveillance.
Read more »

Tuesday, July 03, 2018

"Orthodox" Catholic Judges and Roe v. Wade: A Comment on Coney & Garvey

Mark Tushnet

The following is exceptionally long and likely to be somewhere between controversial and incendiary, though I really don't take a position on the questions I attempt to lay out.

Twenty years ago Amy Coney, then a law clerk soon enter the legal academy, co-authored an article with her soon-to-be colleague John Garvey (now the President of Catholic University) concluding that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty.” (The article is available at; I commented on the article at the time, calling it “splendid.” My comment is available at The article became the focus of some quite misleading discussion during Coney-Barrett’s confirmation hearings, and I think it worth attempting to lay out both the article’s argument and the questions one might legitimately raise based on the analysis. (Until re-reading my comment on the article, I didn’t remember that I had actually made a version of the argument that follows twenty years ago – so at least I can’t be accused of coming up with the argument for this very occasion. [Actually, I have to confess that, though I remembered attending the conference at which the article was initially presented, I hadn’t remembered that I published a comment on the article!])

Read more »

Interviewing Potential Supreme Court Nominees

Mark Tushnet

Apparently, these days an important part of the process by which a President chooses among potential Supreme Court nominees is a personal interview with the President. This "development" is interesting and worth some analysis, I think. I say "development" because it's reasonably clear to me that "the interview" is a relatively recent innovation (though how recent I don't know). Here are some thoughts, in my mind at least relatively a-political, about "the interview."

First, for a long time (I think) an interview would be unnecessary because the President would already know, personally, the potential nominees. The pool consisted of politicians well-known on the national scene (Franklin Roosevelt knew Hugo Black, Dwight Eisenhower knew Earl Warren, George W.Bush knew Clarence Thomas), prominent judges who moved in presidential circles giving speeches and the like (Warren Burger), and prominent members of the bar who moved in those same circles (Owen Roberts, Lewis F. Powell). The development of "the interview" might then reflect changes on both sides of the table: on the President's side, weaker screening before the President's nomination and election, reducing the President's exposure to people in the pool; and on the potential nominees' side, an increasing institutional differentiation between the judiciary and the executive branch -- or, perhaps, the hiving off of expertise within the executive branch of knowledge about who should be in the pool.

Second, most processes involving personal interviews involve a "selector" who knows the qualities sought in a candidate and, importantly, has some reason to think that s/he has the ability to rank candidates along the relevant dimensions (sometimes with input from others in the executive suite). It's not obvious to me that Presidents have that ability, as is suggested by news reports and retrospective interviewing that stress whether the President felt a personal chemistry with the nominee. That makes sense to me. There's no reason to think that a President can do a good job of ranking candidates according to their legal ability, for example (and any decent screening process will whittle down the field to people who get over some "basic ability" hurdle -- including, I have to say, Harriet Miers and others sometimes listed as "unqualified" in news and historical accounts.) A candidate's ability to generate personal chemistry is a relevant characteristic to the extent that it bears on the way in which the person will interact with future colleagues on the Court. But the social group that is the Court is very different from any social group with which a President will be familiar, and (even discounting for the highly artificial nature of "the interview," which characterizes all interview processes) an ability to generate personal chemistry with the President has, I suspect, almost no predictive value about the candidate's potential role inside the Court.

So, third, my sense is that the interview is a combination of the theatricalization of the Presidency, demonstrating to an observing world that the President and not his staff is indeed the real decision-maker, and a sort of Weberian bureaucratization of the selection process, just another box to tick off. (There may well be some scholarly work on "the interview," though the most important work on how lists are generated and winnowed down doesn't deal with it.)

Monday, July 02, 2018

Contrary to Popular Belief, the Court Did Not Hold that the Travel Ban is Lawful—Anything But. (Which Makes Its Ruling, Justice Kennedy’s Deference, and the President’s Enforcement of the Ban Even More Indefensible.)

Marty Lederman

Cross-posted at Just Security.

Not surprisingly, most early reports of the Supreme Court’s decision last Tuesday in Trump v. Hawaii dramatically pronounced that the Supreme Court had declared President Trump’s “Travel Ban III” to be “valid” or “lawful” or “constitutional.”  The President himself excitedly tweeted:  “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”

Don’t believe the hype.

In fact, not a single Justice on the Court decided—or even suggested—that Proclamation 9645’s exclusion of entry of nationals from five Muslim-majority countries (Iran, Libya, Somalia, Syria and Yemen) is lawful.  More importantly still, five of the Justices actually concluded that it violates the First Amendment (although, as I’ll discuss shortly, Justice Kennedy inexplicably chose to be a bit indirect, and sheepish, about that conclusion). 

But if that’s the case—if the only five Justices who opined on the merits concluded that the Travel Ban is unconstitutional—then why did the Court rule for Trump? 

Because the Court applied a highly deferential standard of review.  A 5-4 majority of the Justices held, in effect, that even if the Proclamation is unconstitutional there’s nothing the Court can do about it. 

That disposition, as I’ll explain, is indefensible on a couple of grounds—(i) that the Court does not adequately defend its deferential posture and, more importantly, (ii) that the Travel Ban fails even the “rational basis review” the Court applied, because its only effect is to exclude entry into the U.S. of individuals who can demonstrate that they are not dangerous (or otherwise inadmissible).  Accordingly, the Travel Ban is “inexplicable by anything but animus” (slip op. at 33 (quoting Romer v. Evans)), and therefore is unconstitutional.    

The majority’s resolution is especially unfortunate because this is a case in which the Court’s conclusion—that the President conceivably might have promulgated the Travel Ban for independent reasons of national security—is belied by a fundamental thing that virtually everyone knows (and that the Court does not deny): namely, that the Travel Ban would not exist but for its foreseeable effect in excluding Muslims from entry, and the fact that it makes good on the President’s campaign promises to his constituency that he’d impose a “total and complete shutdown of Muslims entering the United States” because “we can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.”

It’s especially disappointing that Justice Kennedy went along with this charade, because his vote to reverse the preliminary injunction—the vote that decided the case—betrayed each one of the core principles that Jack Goldsmith rightly describes as the pillars of his jurisprudence over the past 30 years and his (desired) legacy:  honoring the dignity of all persons; preserving liberty; and enshrining a “robust conception of judicial power” to check the constitutional errors of political actors.  (More on this below.)

Make no mistake, however:  As Justice Kennedy himself unambiguously signals in his separate opinion, the President is, indeed, “disregard[ing] the Constitution and the rights it proclaims and protects” (Kennedy op. at 1), and thereby violating his oath of office, by continuing to enforce the Travel Ban.  And those officials who are assisting him in doing so, or advising him that he may continue to do so despite knowing full well that there is no national security basis for the ban and that it therefore is unconstitutional for the reasons expressed by a majority of the Court in Trump v. Hawaii, are violating their own oaths, and ignoring the “imperative . . . to adhere to the Constitution and to its meaning and its promise” (id.).  This case thus illustrates an important lesson that's often overlooked:  The political branches have a duty to comply with the Constitution even in cases where the Court is, for institutional reasons, unwilling or unable to enforce constitutional norms.  

* * * *

I.  A Court Majority Rejected the Mythical Plenary Power Doctrine and Held that the First Amendment Bars Religious Discrimination in the Admission of Foreign Nationals

Let’s start with a very important and remarkable thing about Trump v. Hawaii that most reports and observers have, perhaps understandably, overlooked in the tumult of the past few days:  A majority of the Court rejected, for the first time, the “strong” version of the so-called “plenary power doctrine” of immigration law, i.e., the proposition that the political branches are wholly unconstrained by the Constitution in choosing who can and cannot enter the United States.
Read more »

Sunday, July 01, 2018

Anthony Kennedy: The Judge Who Never Left the Republican Party

Mark Graber

When the Republican Party in 1980 nominated Ronald Reagan for president and Al D’Amato captured the Republican nomination for the New York Senate seat, I walked out.  Over the next forty years, prominent Republican members of the federal judiciary trod down the same path.  By the time they left the bench, Harry Blackmun, John Paul Stevens, David Souter and Richard Posner were no longer Republicans.  Sandra Day O’Connor in her last years on the bench did little to hide her disgust with Bush Administration and Republican politics.

Anthony Kennedy never left the Republican Party.  He was a sound Republican when nominated by Ronald Reagan and as sound a Republican when he allowed Donald Trump to choose his replacement.  Kennedy never wavered in his commitments to constructing a constitutional politics that favored the GOP.  From Bush v. Gore (2000) in his early years on the Court to Shelby County v. Holder (2013) in his later years, Kennedy could be counted on as a solid vote for Republican political interests. He was as friendly to Republican business interests as Scalia, Roberts or any other Republican appointed after Sandra Day O’Connor (who was no slouch on these matters).

What some commentators insisted was an independent streak reflected no more than Kennedy’s commitment to the Republican Party of Charles Koch, whose political and business interests gained Kennedy’s unwavering support, rather than the Republican Party of Donald Trump.  The Koch’s are far more committed to busting unions and ending Obamacare than fighting the culture wars.  Far more than any other justice on the Supreme Court, Kennedy implemented the Koch agenda.  He would deny millions healthcare in the name of an abstracted federalism and never met a union busting tactic he could not endorse.  Both Kennedy and Koch understood that professional suburban Republicans are as inclined to terminate pregnancies and to prefer romance with members of the same sex as their counterparts in the Democratic Party.  As the Fortune 500 became more sympathetic to mild race based measures, so did Kennedy.  The affirmative action plan Kennedy upheld in Fisher v. University of Texas (2016) increased enrollment from the same affluent suburbs that spawn Republicans most committed to the Koch business agenda.

The timing of Kennedy’s resignation confirms the strong connections between Trump Republicans in the legislative and executive branches of the national government and Trump Republicans in the federal judiciary, while confounded the few remaining voices left who think Republican judges will remain independent of Republican politics.  Many conservative public intellectuals have demonstrated an honorable independence from Republican politics.  George Will, Jennifer Rubin and Michael Gerson are among the many conservative thinkers who recently walked out of the Republican Party.  Bret Stephens and Ross Douthat regularly excoriate Donald Trump and his Republican enablers in their New York Times columns, even as they remained committed to Burkian visions.  Kennedy and the Republicans on the Supreme Court, however, are more inspired by Mitch McConnell than Jennifer Rubin.  Nothing Trump or his supporters do raises any questions about their allegiance to the GOP.   Decision after decision over the last two years has continued promoting either Republican business or Republican political interests as if nothing politically out of the ordinary is taking place.  Kennedy joined in all enthusiastically, stopping only to deliver the same ineffective scold Republicans in Congress occasionally make to demonstrate that they are not completely beholden to the bigot in the White House.

Ending a relationship has consequences whether the relationship be with another person or a political party.  When you walk out of a political party, you begin to question more seriously policies you always had private doubts about.   The same tactics you thought necessary to prevent the other party from gaining office now seem to you democratically and constitutionally indefensible.  Walking out of the Republican Party improves your hearing.  Personal experience suggests you hear racial dogwhistles far more clearly when you are outside than inside the GOP.

Anthony Kennedy never walked out of the Republican Party.  Throughout his time on the bench, he contributed without question to Republican efforts to dismember unions, gut antitrust laws and close off courts to workers who had legal complaints about their bosses.  Kennedy for more than three decades supported Republican efforts to undo American democracy through vote suppression, gerrymandering and the substitution of money for political support and democratic dialogue.  No matter how loudly Republicans blew, and Donald Trump plays fortissimo, Kennedy in cases involving low-income housing, police stops and the travel ban could be trusted never to hear the racial dogwhistle.

Saturday, June 30, 2018

Abandoning Defensive Crouch Liberalism Redux

Mark Tushnet

OK, so everybody ignores the final lines of the infamous post on defensive crouch liberalism. But I still think that abandoning it is a good idea -- and indeed, maybe a better idea now than then. For one thing, maybe the Court's "liberals" will now feel liberated to make utopian rather than pragmatic can-we-get-a-fifth-vote-for-this-today? arguments. Justice Sotomayor's dissents in Schuette and the travel ban case can be models. Again, people will have their favorites, but here are some candidates (not all of which I agree with): Affirmative action is constitutionally required. The Constitution requires that legislative boundaries be drawn by independent districting bodies. Campaign finance regulation aimed at leveling the playing field is at least constitutionally permissible and maybe constitutionally required. And, of course: Redistributive taxation is constitutionally required. (I personally think that opinions in the first three areas would be more intellectually honest than the ones liberals have been writing.)

And, another point that's obvious enough: Progressives ought to start getting their heads around the idea of doing Court-packing when/if they get the chance. (It's not as if Republicans won't [a] think of the idea themselves if liberals keep their mouths shut, or [b] accuse liberals of planning to pack the Court no matter what.) In some quite informal conversations about this, I've heard liberals/progressives say, "But, after 1937 there's a constitutional norm against Court-packing." To which I have a few responses: (1) "Why should Republicans be the only ones allowed to abandon so-called constitutional norms?" Do the game-theoretic analysis and either Democrats are being played for suckers, or they have to do tit-for-tat when they get a chance (per Axelrod). (2) The failure of Court-packing in 1937 was a much closer thing than people think. Right up until the end (with Senate Majority Leader Robinson's death), newspapers were reporting that the plan had a decent chance of passing. (The reason is that Robinson had been able to call in enough personal chits -- which of course went away when he died.) (3) Sure, it would be a big political fight, with the standard chin-pullers who write for the Washington Post and the New York Times asserting -- without evidence -- that "the people" wouldn't stand for this sort of blatant politicizing the Court. I can't bear to address that latter assertion directly, but the responses to both parts are pretty obvious, I think. I say that if the political conditions are favorable, go for it.

And, remember that there still are state courts, which will have -- for a while -- some room for maneuver. (The qualification is there because I have no doubt that there will be creative statutory and constitutional preemption arguments that will be developed to close off state court progressivism.) So support Sam Bagenstos's candidacy for the Michigan Supreme Court.

Friday, June 29, 2018

Constitutional Hardball post below updated to allow comments

Priscilla Smith

A Fascinating Question

Gerard N. Magliocca

Suppose the President nominates Senator Mike Lee of Utah to the Supreme Court. Would Senator Lee be able to vote for himself or must he abstain on that vote? This may matter because the Senate is closely divided and Senator McCain is absent due to illness.

In the past, many senators were named to the Supreme Court. Back then, though, these nominations typically were confirmed by unanimous consent. (Indeed, I believe Senator Hugo Black was the first member of the Senate nominated for the Court when a vote was even held, though I'd have to check that.) I'm not sure after that whether there is any relevant practice, as no sitting Senator has been sent to the Court since 1949.

Some Senators have been nominated for Cabinet posts (like Jeff Sessions last year). On his vote to be Attorney General, he simply voted "present." Does that custom carry over to a Court confirmation?

Thursday, June 28, 2018

"Constitutional Super Hardball"

Priscilla Smith

I'm no expert when it comes to matters of Senate procedure, but one thought suggested to me by a learned friend after we heard yesterday that Justice Kennedy was retiring is that Democrats do have a "Trump" card, so to speak, that they could  play to prevent Trump from filling Justice Kennedy's seat before the midterms.  I speak of U.S. Constitution, Article I, Section 5, Clause 1, which provides:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Given the current narrow balance of the Senate, if Senate Democrats orchestrated a walkout (our suggestion would be they all go to Mexico City though Canada might be nicer in the summer months), the Senate would only be able to reach 50 members (because Senator McCain is ill) which is less than “a majority,” and therefore would be unable to “do business” (e.g., act on nominations).  My friend calls this constitutional “super hardball."  I think it's time to play.

Constitutional Political Economy When the Court is to the Right of the Country

Joseph Fishkin

By Joseph Fishkin & William E. Forbath

Most Americans, even well-informed Americans, understand the fight over a new Supreme Court justice largely in terms of certain high-salience issues in constitutional politics such as abortion, affirmative action, the death penalty, or perhaps the religious rights of a conservative Christian to refuse to serve a gay couple. We seem a great distance, in other words, from 1936, when President Roosevelt ran for re-election against the “constitutional-economic philosophy” of the “Nine Old Men” who had recently struck down key New Deal statutes. In 1936, everyone, whatever their views, could see that the constitutional fight ahead had to do with fundamental questions about how the nation’s economy would be organized, and for whose benefit. In Jones & Laughlin in 1937, the Court famously retreated, upholding the National Labor Relations Act (NLRA) (the “Wagner Act”) against a challenge that perfectly encapsulated one side of that debate—a fiercely anti-union and anti-redistributive vision of the demands the constitution places on how we structure economic life.

Those fundamental questions of constitutional political economy were never settled. After 1954, Brown and debates about school busing became the main axis around which our constitutional politics turned; liberals took to defending the Warren Court while conservatives found success running against it; and this pattern has basically continued ever since, despite changes in the mix of salient issues and despite the fact that conservatives, not liberals, have controlled the Court since the mid-1970s. Since that time, American political economy has changed. Inequality has skyrocketed; unions have been ravaged; workers’ share of national income has declined; the cost of health care, higher education, and for that matter, political campaigns have gone through the roof in ways that make access to any of them perilous and unequal. Groups favoring an ever more hierarchical and anti-democratic vision of American political economy, from the Chamber of Commerce to the Koch brothers’ network, have found enormous success not only in the Republican party but also in the courts. In court, instead of building their political-economic vision through the old constitutional claims of property and contract rights and substantive due process of the Lochner era, these groups today use different doctrinal tools, of which perhaps the most powerful is the newly “weaponiz[ed]” First Amendment.* The objectives, and the political-economic stakes, remain the same.

The Roberts-Kennedy Court, as perhaps the first years of the Roberts Court may eventually be known, began to make interventions in our constitutional political economy forceful enough that Americans started to take notice. Citizens United, in particular, drew a powerful public response; it was the first case in a long time that vividly illustrated to large numbers of Americans that the Supreme Court is in the business of deciding profound questions of political economy. When faced with Obamacare, the single largest egalitarian intervention in American economic life in a generation, Chief Justice Roberts stepped back from the brink, issuing some wild Commerce Clause dicta but ultimately upholding the law as an exercise of Congressional power to tax.

Well, buckle your seat belts. Justice Kennedy’s retirement announcement yesterday means that we are on the cusp of a bolder Roberts Court, one poised to push much harder for a neo-Lochnerite individualistic vision of constitutional political economy. The evidence is already before us. Indeed we need look no further than the case decided yesterday, Janus v. AFSCME, the Court’s latest effort to nationalize some states’ anti-union policies that are aimed, undisguisedly, at breaking some of the last bulwarks of workers’ political power. (More about the case below.)

President Trump responded to Janus with predictable bluntness: “Big loss for the coffers of the Democrats!” In this case, his lack of interest in legal doctrine actually brought him fairly close to the core of what the case was about. The remarkable thing is how close the majority opinion, by Justice Alito, itself comes to revealing that this decision’s purpose and effect are essentially about economic and political power. If Justice Kennedy’s successor is anyone from President Trump’s list (outsourced to the Federalist Society) of potential nominees, it will be time for everyone who disagrees with the political-economic course the Court is charting to begin to reorient our constitutional politics. The next decades will be a period of progressive constitutional politics outside, and largely in opposition to, a hostile Court.

Read more »

Wednesday, June 27, 2018

Williams v. Mississippi, the Travel Ban and Justice Kennedy's Legacy

Mark Graber

Williams v. Mississippi (1898) provides the better lens for understanding Trump v. Hawaii (2018) than Korematsu v. United States (1944).  Williams was the case in which the Supreme Court gave the green light to southern efforts to create a racial caste system.  Former slaveowners, Confederates and their supporters understood that frank and explicit racial discriminations ran the risk of being declared unconstitutional.  Mild subterfuge became the order of the day.  As John Knox informed the Alabama Constitutional Convention of 1904, their task was “within the limits imposed by the Federal Constitution, to establish white supremacy in this State.”  Rather than declare that persons of color could not vote. Knox and his allies called for constitutional rules that gerrymandered “race-neutral” suffrage requirements to ensure that African-Americans and only African-Americans would be denied the ballot.  These measures included poll taxes, literacy tests and understanding tests, with grandfather clauses that provided that if a person or their ancestor voted before the day slavery was abolished in the state, they would be allowed to continue to exercise voting rights.  A unanimous Supreme Court in Williams sustained such measures.  Justice Joseph McKenna’s majority opinion declared, “the operation of the [Mississippi] Constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.”  As Cunegonda sings in Candide, "if I'm not pure, at least my jewels are." 

The Republican Party, Trump administration and Roberts Court playbook relies on Williams, not Korematsu.  In Korematsu, the Roosevelt administration explicitly declared that they had reasons to discriminate against Japanese-Americans.  The issue was when admitted racial discrimination was constitutional.  In Williams, state lawyers smirked as they told the Supreme Court that state laws were designed to prevent the ignorant and criminals from voting, not persons of color.  Trump lawyers wore the same smirk on their faces when they told the Supreme Court that travel ban was aimed at terrorists, not Muslims, that there was no discrimination going on.  The issue was when the court should find racial discrimination Chief Justice John Roberts and company blandly agreed the purpose of a law was what the lawyer said the purpose was, not the lawmaker.  Just as McKenna insisted that the court should ignore speeches by Knox and others stating that the purpose of voting restrictions was to restore white supremacy, so the conservative majority on the Supreme Court insisted that good justices should ignore Trump’s tweets stating that he had ordered a Muslim ban.  If the politicians were not pure, at least their texts were.   

Roberts Court doctrine, if anything, is far friendlier to racial subterfuge than Fuller Court doctrine.  The Fuller Court in case after case simply declared that persons of color had not proved racial discrimination.  The Roberts Court adopts standards that make proving racial discrimination practically impossible.  Samuel Alito’s opinion in Abbott v. Perez (2018) insisted that because racism is so evil, courts must make every presumption that such luminaries as John Knox and his descendants have not engaged in racist actions, even when they tell us they are (or lower federal courts find clear evidence of discrimination).   White supremacists in the post-bellum South could only dream of such judicial solicitude

Korematsu and Williams frame Justice Anthony Kennedy’s legacy on the Supreme Court.  Kennedy loved liberty and, to a lesser extent, equality in the abstract, but not in their common manifestations.  He would strike down direct challenges to constitutional values, but throughout his tenure was uninterested in combatting efforts to circumvent the rights he celebrated in the abstract.  He might well have dissented in Korematsu, but would have happily joined the majority opinion in Williams.  He, like the Chief Justice, believe that “the best way to stop discriminating is to stop calling discrimination “discrimination.””

Justice Kennedy's Legacy

Mark Tushnet

According to Janus, one factor in determining whether a prior decision should be overruled is that is was "poorly reasoned." I'm tempted to make that the sole "explanation" of this post's title, but to be clear about the point: Romer and Obergefell fit that description (in my view, Lawrence doesn't). The headnote to Janus offers a crisp summary of another factor (the opinion is less crisp, but the headnote is accurate): attempting to salvage a weak precedent by recasting its reasoning. From the perspective of its critics, that describes Roe v. Wade in light of Casey.

The Standing-on-One-Leg Version of Constitutional Law, circa and post-2018

Mark Tushnet

1. Statutes, policies, and practices that strengthen the Republican Party, and those that weaken the Democratic Party, are constitutionally permissible.
2. Statutes, policies, and practices that strengthen the Democratic Party are unconstitutional.
3. If leading Republicans are indifferent about a statute, policy, or practice, and leading Democrats favor it, and if the statute, policy, or practice does not strengthen the Democratic Party, the statute, policy, or practice might or might not be constitutionally permissible.
4. If leading Republicans are indifferent and leading Democrats oppose a statute, policy, or practice, it might be unconstitutional.
All the rest is commentary.

Truly the Roberts Court

Gerard N. Magliocca

With the announcement of Justice Kennedy's retirement today, Chief Justice Roberts is primed to become the most powerful occupant of that office since Earl Warren. We do not know, of course, who will replace Justice Kennedy. (Personally, I would love to see Kevin Newsom, just recently confirmed to the Eleventh Circuit, get the nod.) But there is a strong likelihood that the Chief Justice will be the swing vote as well as the head of the conservative bloc.

Tuesday, June 26, 2018

Why was Korematsu wrong?

Joseph Fishkin

Amid the general horror show today at the Supreme Court (sequel tomorrow), one small point that could easily get lost, but should not, is the majority’s effort in the travel ban case to distinguish Korematsu

Today the majority took the interesting and, I think, important step of officially repudiating Korematsu. The Court held that that case was “gravely wrong the day it was decided” and furthermore “overruled in the court of history” (p.38) (a court whose jurisdiction it is at least interesting to hear the current five-Justice majority acknowledge).  Chief Justice Roberts, writing for the majority, also opines that Korematsu has “nothing to do with” the travel ban case before them.  That is putting it awfully strongly.  Why exactly are the two cases so different?  It seems to me that there are four ways the Court might try to distinguish Korematsu from today’s decision:

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Carpenter's Curiosities (and its Potential to Unsettle Longstanding Fourth Amendment Doctrines)

Marty Lederman

Not surprisingly, there are already a slew of reactions to the Court's landmark decision on Friday in Carpenter v. United StatesMost observers understandably have focused on two major aspects of the ruling:

(i) The Court held that customers have at least some "reasonable expectation of privacy" in the cell-site location information (CSLI) records that their service providers maintain about them--a new "exception" to the so-called "third-party doctrine," and thus a repudiation of the principle the Court announced in Smith v. United States that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”  (Such a categorical principle was obviously vulnerable and inadequate from the outset--indeed, it can't be reconciled with the landmark Katz holding itself, in which he Court found that Katz had at least some reasonable expectation of privacy in information that he "voluntarily" shared with a third party, namely, his bookie.)  After the Court's decision in Carpenter, the fact that one has shared information with a third party is relevant to the Fourth Amendment analysis but it does not, in and of itself, resolve the question of whether an expectation of privacy in that information is legitimate, and thus subject to some Fourth Amendment solicitude, including in cases where the state directs the third party to produce the records. 

(ii) Carpenter also confirms the Court's recent willingness to shape its Fourth Amendment doctrine to address the extraordinary new technological surveillance capabilities of the state--in particular, its ability to glean huge amounts of detailed information about individuals, without significant cost, using computer searches of now-ubiquitous databases that track our every transaction, communication, and movement.  (In this respect the best early take, emphasizing the possible implications of Carpenter for "bulk" foreign intelligence surveillance collections, is this piece by David Kris.  [UPDATE:  And this post by my colleague Paul Ohm is also must reading.])

Those aspects of the decision are certainly momentous, but they don't begin to tell the whole story.  Indeed, at least on my preliminary first reading, Carpenter appears to be even more extraordinary and groundbreaking than the initial reports have suggested, for at least three reasons.

1.  It's actually a 6-3 decision--and Justice Gorsuch's rationale might be even broader than the Chief Justice's

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The Glaring Omission in the Chief Justice's Opinion

Gerard N. Magliocca

Whatever you think of the Chief Justice's opinion in Trump v. Hawaii. there is one obvious problem with his analysis. There is no reference to Masterpiece Cakeshop. The dissents both discuss the case, which is clearly relevant to the Establishment Clause claim. The Chief Justice decided to pretend that the case was not decided a few weeks ago.

In a federal court of appeals, this sort of omission would amply support a petition for rehearing pointing out that the Court overlooked a pertinent authority in rendering its judgment. Once in a blue moon, the Supreme Court grants a petition for rehearing. This case will not come out any differently if they grant one in Trump, but the challengers deserve a fair assessment of the relevant case law.

Sunday, June 24, 2018

Two Different Constitutional Ideas

Gerard N. Magliocca

"We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents . . ."

President Donald Trump (June 24, 2018)

"Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?"

Congressman John Bingham (February 28, 1866)

Friday, June 22, 2018

Draft Paper on the Equal Rights Amendment

Gerard N. Magliocca

Here is my draft article on the status of the proposed Equal Rights Amendment to the Constitution. I welcome any and all comments.

Thursday, June 21, 2018

Data Nationalization in the Shadow of Social Credit Systems

Guest Blogger

Frank Pasquale

The political economy of digitization is a fraught topic. Scholars and policymakers have disputed the relative merits of centralization and decentralization. Do we want to encourage massive firms to become even bigger, so they can accelerate AI via increasingly comprehensive data collection, analysis, and use? Or do we want to trust-bust the digital economy, encouraging competitors to develop algorithms that can “learn” more from less data? I recently wrote on this tension, exploring the pro’s and con’s of each approach.

However, there are some ways out of the dilemma. Imagine if we could require large firms to license data to potential competitors in both the public and private sectors. That may sound like a privacy nightmare. But anonymization could allay some of these concerns, as it has in the health care context. Moreover, the first areas opened up to such mandated sharing may not even be personal data. Sharing the world's best mapping data beyond the Googleplex could unleash innovation in logistics, real estate, and transport. Some activists have pushed to characterize Google's trove of digitized books as an essential facility, which it would be required to license at fair, reasonable, and non-discriminatory (FRAND) rates to other firms aspiring to categorize, sell, and learn from books. Fair use doctrine could provide another approach here, as Amanda Levendowski argues.

In a recent issue of Logic, Ben Tarnoff has gone beyond the essential facilities argument to make a case for nationalization. Tarnoff believes that nationalized data banks would allow companies (and nonprofits) to “continue to extract and refine data—under democratically determined rules—but with the crucial distinction that they are doing so on our behalf, and for our benefit.” He analogizes such data to natural resources, like minerals and oil. Just as the Norwegian sovereign wealth fund and Alaska Permanent Fund socialize the benefits of oil and gas, public ownership and provision of data could promote more equitable sharing of the plenitude that digitization ought to enable.

Many scholars have interrogated the data/oil comparison. They usually focus on the externalities of oil use, such as air and water pollution and climate change. There are also downsides to data's concentration and subsequent dissemination. Democratic control will not guarantee privacy protections. Even when directly personally identifiable information is removed from databases, anonymization can sometimes be reversed. Both governments and corporations will be tempted to engage in “modulation”—what Cohen describes as a pervasive form of influence on the beliefs and behaviors of citizens. Such modulation is designed to “produce a particular kind of subject[:] tractable, predictable citizen-consumers whose preferred modes of self-determination play out along predictable and profit-generating trajectories.” Tarnoff acknowledges this dark possibility, and I'd like to dig a bit deeper to explore how it could be mitigated.

Read more »

Wednesday, June 20, 2018

Cultural contradictions of capitalism II

Sandy Levinson

Ross Douthat has a very interesting column in today's Times (online) noting the transformation in views especially by feminists with regard to the use of surrogates to carry children.  Without expressing my own view on the merits, I do find it a wonderful illustration of Bell's (and Deneen's) overall point that the power of libertarian-capitalist ideology, even for people who undoubtedly identify themselves as one the left, does indeed lead to a lot that was formerly solid melting into air.  Not surprisingly, a number of the hostile comments to Douthat's column denounced him for his failure to respect the capacity of women to make autonomous choices on how to use their bodies, including, of course, in effect renting them out to more affluent persons and couples.  All we have to do, of course, is to define exactly what constitute the conditions for "autonomous choice," as Kanye West recently reminded us (with stunning ineptitude).  The one thing we can be relatively certain about is that the judiciary will provide almost no help, since all American lawyers are socialized into a theory of contract that basically ignores, save, at most for a day, the problems of "duress" or "unconscionability" in favor of a model of arms-length bargaining and contractual freedom, as with, say, plea bargaining.

Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

Guest Blogger

K. Sabeel Rahman

Consider the following developments:
  • In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.
  • Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
  • These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

There has been a growing sense of concern about the twin crises of twenty-first-century democracy on the one hand and of the growing problems of inequality and insecurity on the other. Technological change is at the heart of both of these transformations. Technological change alters the distribution and dynamics of political and economic power, creating new forms of “functional sovereignty”—state-like powers concentrated in entities and systems that are not subject to the institutional and moral checks and balances that we associate with the exercise of public power. Such arbitrary power represents a kind of quasi-sovereignty that, left unchecked, poses a threat of domination.

The rich scholarly debate on law and technology has surfaced a range of approaches for addressing some of these concerns, from legal standards for privacy and data use to antitrust and public utility regulation, and more. These proposals and interventions can be reframed as part of a broader challenge of defusing the threat of domination created by these technological systems. Regulating and responding to new technologies and modern forms of economic and political power thus represent a variation on familiar questions of public law and constitutional design: how to structure the exercise of potentially arbitrary, state-like power, rendering it contestable, and therefore legitimate.

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Monday, June 18, 2018

The Cultural Contradictions of Capitalism

Sandy Levinson

I mentioned in a previous post some of my reactions to Patrick Deneen's interesting book Why Liberalism Failed.  I noted that many of his arguments are evocative of earlier critiques of liberalism written in the 1960s and early '70s.  One of the most important of those critiques was Daniel Bell's "The Cultural Contradictions of Capitalism."  As Marx had noted, one effect of capitalism was to disrupt settled societies, to "make all that is solid melt into air."  The decidedly anti-Marxist Joseph Schumpeter emphasized the importance of "creative destruction" in the capitalist project, i.e., to destroy existing industries and the communities that might have been based upon them upon the discovery of new and better mousetraps.  Although it is not my primary interest in this post, I do note a story in today's New York Times that emphasizes, altogether accurately, the extent to which  Donald Trump is engaging in the political economy of nostalgia, trying to restore industries, most obviously the coal industry, that will never ever make a come back because it has in fact been creatively destroyed by other sources of energy.  Texas, for example, is now the largest source of wind power in the US, and one finds very few Texans, other than the hapless Rick Perry, who believes that valuable dollars should be wasted on trying to revive a dying coal industry.  One might make much the same argument about steel.  But, as I say, that's not the primary focus of this comment.

Instead, I am completely fascinated by the column in Friday's Wall Street Journal, part of its regular series "Houses of Worship," on various religions in America.  The Journal, of course, is to be commended for taking an interest in American religious communities.  This weeks column, by Kim Woodward Osterholzer, is about "Faith and Family Among the Amish."  She herself is a home-birth midwife, now living in Colorado, having earlier lived for nine years in the Amish country in Pennsylvania.  She scarcely presents an attractive picture of the Amish; it is very different, for example, from the high-romanticism offered by Chief Justice Burger in Yoder.  Thus she writes that she "found barely functional homes filled with a bustling, Spartan folk wearing patched and sweat-stined clothes.  I was taken aback by the rough hands, the weather-battered faces, the round and weary shoulders, the bare and blackened feet, the swollen ankles, and the legs stranger with bulging veins.  I glanced when I saw how many young families lived in barns, shed and the basements of partly constructed homes....  I learned to regard with nonchalance the rolls of flypaper that dangled from the ceilings.  After a while, I hardly noticed the mice scampering under doors and along the edges of baseboards,,,, "  She also describes herself as "unfazed by the severity of the religion," which is structured around following the Ordnung, as interpreted by a bishop and two local ministers, "who are selected by lottery and serve for life while keeping their day jobs."  Perhaps needless to say, "women are never allowed to preach."

Lest one think that the column is a criticism of this completely totalitarian enclave of those who might be described by the unsympathetic as religious fanatics, the author in fact ends up with a tribute to what she saw.  "The Amish are a God-fearing, family-centered people.  They work hard, but they also relax and play.  Their lives are so untarnished by the broader culture that to be with them is refreshing...  The fruit of the Amish way i\of life is that it keeps its people better focused on what truly matters--faith and family.  They intimately understand the resilience and fragility of life and the certainty of death.  It keeps them close to the earth, in sync with its rhythms.  Whenever I departed from a visit, I would ask myself:  Do we really need the fear of hell driving us before we can make time to be with one another and enjoy the magnificent world God created for us?"  I suspect that one might find some similar elegies about some Hasidic Jews, who equally withdraw from the world and do everything they can to make sure that their children are indoctrinated into the ostensible virtues of the integral community and rendered basically unfit to exist in the outside world.

Deneen is Catholic, so I doubt that he would be completely taken with these descendants of German Anabaptists.  But they do instantiate the kind of small integral communities whose destruction by liberalism--defined either as the strong consolidated state favored by contemporary progressives or the buccaneer capitalism embraced by libertarians--he laments and seemingly wishes to return to.  There is an obvious problem, though.  If a significant number of Americans were persuaded even that milder versions of Amish austerity were desirable, American capitalism would collapse.  The Wall Street Journal devotes itself to covering those whose lives are devoted to extending the reach of capitalism, including, all importantly, the consumer-oriented societies that define success as owning the next big thing, whether the latest number IPhone or expensive watches or whatever.

I suspect that the Wall Street Journal would be hesitant to open its columns to serious hippies, assuming any are left, who call for the rejection of consumption in favor of the simple life.  Ordinary radicals, who might believe that everyone deserves an equal opportunity to buy Mercedes etc. are far less dangerous to the overall capitalist ethos than someone who preaches the virtue of asceticism, as do the Amish.  So why do they publish the column, and its conclusion?  I suspect it is because they recognize that almost literally none of their readers are likely to find asceticism a genuine virtue.  The Amish play the function of exotic animals at the zoo.  We can feel better about ourselves for tolerating them, but only so long as they do not in fact present a genuine threat to a society built on almost everything the Amish reject.

But Bell wasn't really concerned about the Amish. Rather, he noted that capitalism depends on the destruction, creative or otherwise, of existing ways of life.  My home town of Hendersonville, North Carolina is now a quaint tourist town instead of a community of local small businesses, etc, (where I worked when I was growing up, beginning when I was a ten-year old), because of Walmart, etc.  Donald Trump promises to restore communities in West Virginia and Kentucky that were built around coal, or Gary, Indiana, built around steel.  But, tellingly, he isn' promising to go after Walmart and other denizens of modern American capitalism that have destroyed many small communities.  (Nor do I necessarily think he should.  That, too, is the topic for other conversations.)

The Journal instantiates the most bizarre feature of the contemporary Right, i.e., the alliance between religious conservatives, many of whom genuinely yearn for community, and the agents of American capitalism who are completely and utterly indifferent about the consequences of their prosperity.  Think only of Facebook in this regard.  And, of course, the Journal adamantly supports the further destruction of labor unions, a destruction accurately credited by Stephen Brill in his own book Tail  Spin, as one of the sources of American decline over the past half century.  Opioids and suicide are genuine problems of public health, and they are in part a response to the "creative destruction" of modern capitalism.   

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