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Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Supreme Court Kremlinology The "legitimacy" of the Supreme Court--or, as an empirical matter, can the Court pretty much do whatever five of its members want? To Destroy, and Not to Save: The Conservatives’ Bid to Strike Down the Entire Affordable Care Act The Shadow of the Filibuster About that Case Economic Ignorance in the ACA Arguments There is a Great Disturbance in the Force Perhaps giving gratuitous offense... As-Applied Challenges, Severability, and the Mandate "Wow! WOW!" Which Innocent People Shall We Hurt Today? Five Limiting Principles More on "limiting principles" Props to Bart Farr The Limiting Principle Our Platonic Guardians Whither Rational Basis and the Affordable Care Act?
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Friday, March 30, 2012
Supreme Court Kremlinology
Andrew Koppelman
Thursday, March 29, 2012
The "legitimacy" of the Supreme Court--or, as an empirical matter, can the Court pretty much do whatever five of its members want?
Sandy Levinson
The University of Texas Law School is hosting a two-day conference on "Countermajoritarianism and the Court" tomorrow and Saturday, sparked in part by an article in the recent Supreme Court Review by Rick Pildes suggesting that the "countermajoritarian difficulty" is alive and well, as witnessed most prominently in Citizens United, opposed by roughly 80% of the public. And, of course, there is much discussion of this with regard to the potential that five conservative Republican justices will vote to undo the most significant piece of domestic welfare legislation passed in the last 45 years. But a fascinating paper to be presented by Washington University of St. Louis professor James Gibson, "Public Reverence for the United States Supreme Court: Is the Court Invincible" (available through the web site hyperlinked above), suggests that the fact that a given decision, including undoing the Affordable Care Act, would arguably be countermajoritarian is near-irrelevant, for the following reason: The key question is whether a majority of the public believes the Supreme Court is legitimate, which means, among other things, having the authority to make binding decisions as to what the Constitution means. The answer, based on copious survey data, is yes. Relatively few Americans are willing to denounce the basic legitimacy of the Court--in the way, say, that I regularly denounce the legitimacy of the indefensibly apportioned United States Senate. There are many reasons for this, ranging from civic education that venerates both the Constitution and the institution that ostensibly has responsiblity for instantiating it, to the fact that the Court makes liberal as well as conservative decisions. So, for example, political liberals who have been obsessed with "Saving Roe" are inclined to promote "respect for the Court" even in the teeth of Bush v. Gore. As Gibson has shown elsewhere, the Court suffered remarkably little, if any, from the power-play that was Bush v. Gore. To Destroy, and Not to Save: The Conservatives’ Bid to Strike Down the Entire Affordable Care Act
David Gans
Severability is a doctrine of judicial restraint dating all the way back to the beginnings of judicial review that counsels that a court must try to save, not destroy, a legislative enactment by severing any unconstitutional provisions or applications rather than invalidating the statute as a whole, so long as the remainder is fully operative as law and coheres with the intent of Congress. As Chief Justice John Marshall observed almost two centuries ago, “[i]f any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the Constitution of the United States . . . .” But yesterday morning, during oral argument, a number of the Court’s conservative Justices seemed poised to invoke the doctrine of severability to strike down the entire Affordable Care Act, turning judicial restraint on its head. The Shadow of the Filibuster
Gerard N. Magliocca
One issue that came up in the arguments yesterday was the role of the filibuster in increasing legislative inertia. Current cloture practice, which is totally inconsistent with how the Senate operated for most of our history, complicates the Court's consideration of the Affordable Care Act case and is pushing the Justices toward a more radical opinion. How so? About that Case
Deborah Pearlstein
The Latin maxim Scalia might have more helpfully invoked is the one the Brits like to call Occam’s Razor – the idea that the simplest explanation is usually the right one. I fear we all (that is, all of us who thought or hoped the Court would recognize this as an easy case) might share some blame for making this mistake. So we should thank folks like President Reagan’s former Solicitor General Charles Fried, who yesterday came more quickly to the point: Economic Ignorance in the ACA Arguments
Mark Tushnet
1. Insurance is not a Christmas-Club scheme for prudent saving in advance of anticipated expenses. (Justice Ginsburg was clearly being driven crazy by questions that treated insurance as a Christmas-Club scheme.) There is a Great Disturbance in the Force
Gerard N. Magliocca
You know that things are going poorly for the Obama Administration when the Solicitor General is being mocked on YouTube. I thought I would add two points about where this runaway train may be heading. Perhaps giving gratuitous offense...
Mark Tushnet
Has Justice Scalia jumped the shark? Before offering some reasons to think so, I want to emphasize that jumping the shark doesn’t mean that the show has become absolutely the worst thing on TV, but only that it’s gone into irreversible decline. So, for example, in my view Justice Scalia offered the most coherent version of the challenge to the individual mandate in his presentation of the “necessary and proper” argument, invoking an “implicit … evident principle in the Constitution.” I’ll get back to the ACA arguments, but my “jump the shark” question was actually provoked by reading Justice Scalia’s dissent in Vartelas v. Holder, where he writes, “Ignorance, of course, is no excuse (ignorantia legis neminem excusat).” I can understand translating an obscure Latin phrase into English, but what on earth was he thinking when he translated a perfectly understandable English phrase into the Latin from which, I’ll concede, it was derived? It suggested to me that he’s lost control of his cleverness, or – put another way – that he’s interested in displaying his cleverness for its own sake (or for his own sake). Now, to Justice Scalia’s performance in the ACA arguments: For my money, the “Jack Benny” exchange in the Medicaid expansion argument is simply embarrassing, another example of Justice Scalia losing control of his own cleverness – to the point where the Chief Justice had to step in and say, “That’s enough frivolity for a while,” but only after Justice Scalia realized that he had gotten completely off track with his own intervention (he was playing around with “your life” and “your wife,” but at the very end, after the Chief Justice tried to get him to stop with, “Let’s leave the wife out of this,” Justice Scalia said, “I’m talking about my life,” which completely undermines the point, such as it was, that he was trying to make). In the severability argument, I was struck by where the “clever” Eighth Amendment argument went. Justice Scalia asked, “What happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? [Laughter] Or do you expect us to – to give this function to our law clerks?” A bit later Justice Kagan picked up on the “law clerk” reference: “For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.” The transcript notes “Laughter” here as well. What’s interesting to me is Justice Scalia’s offended response: “I don’t care whether it’s easy for my clerks. I care whether it’s easy for me. [Laughter.]” A person in greater control would have let the sting pass. The final notable feature of Justice Scalia’s interventions in the argument – again, I’m not saying that these were pervasive, only that they occurred often enough to be noteworthy – is that he repeatedly went for sound-bites reproducing common conservative talk-radio lines. In the mandate argument, after the Chief Justice and Justice Alito had formulated serious questions about the reach of the government’s arguments (for Roberts the cell-phone question, for Alito the burial insurance one, each of which gets in different ways at the “moral hazard/adverse selection” issue at the heart of the government’s argument), Justice Scalia lowered the level of the discussion by asking the “broccoli” question, which was at that point quite silly (and then reverted to the point, no better when repeated, asking about mandatory car purchases). In the severability argument Justice Scalia felt compelled to introduce a serious question by invoking “the corn husker kickback,” a provision not included in the statute (and, to make the question coherent, he had to introduce a nonexistent “constitutional proscription of venality”). Again, it’s trivially easy to come up with an example from the statute that raises the same question (Justice Breyer did it at, as usual, great length). And, finally, he went for “The President said it wasn’t a tax” line – to which the Solicitor General had the good sense not to invoke Abraham Lincoln on how many legs a horse has. As-Applied Challenges, Severability, and the Mandate
Guest Blogger
Gillian Metzger "Wow! WOW!"
Marty Lederman
That was Justice Kagan's reaction to the logic of the States' extradorinary Medicaid argument yesterday afternoon. (Check out the first three minutes of the audio.) And her incredulity is entirely justified, as I explained here a couple of days ago. Wednesday, March 28, 2012
Which Innocent People Shall We Hurt Today?
Andrew Koppelman
Five Limiting Principles
Neil Siegel
Jack and I see this matter similarly. With respect to each of the three enumerated powers in play in the ACA litigation, there are limiting principles available to the Court that would allow it to uphold the minimum coverage provision while respecting the structural principle of a national government of limited, enumerated powers. More on "limiting principles"
Sandy Levinson
Needless to say, I think that Jack's posting is brilliant. One response I've had to the search for limiting principles is to feel that I'm stuck in a Philosophy 101 class full of bad first-year undergraduates in philosophy 101 who believe that there is one and only one correct way of confronting the world and that competitors can be defeated with a single knock-down example. So, for example, there's nothing more to say about utilitarianism once one points out that under some formulations, that allows the torture of babies. Or Kant is sent to woodshed once someone can't explain why we can’t explain why we can’t like to Nazis asking where our friends are hiding. Isn’t life more complex than that? (Isn't one common feature of Ronald Dworkin, Charles Fried, and Robert Nozick, for example, that they all turn into Schmittians when a "catastrophe" threatens. I.e., they're not willing to adhere to their favorite single principle if the heavens really would fall (unless one can make a plausible argument that the principle is so completely important that it's worth the destruction of the world, which returns us to Philosophy 101 and the question whether one would commit incest in order to repopulate the world after a nuclear attack or some such absurd hypothetical). I assume, incidentally, that all of the Republican Props to Bart Farr
Mark Tushnet
Because no one appears to be saying this: His argument as amicus in the severability argument was, in my judgment, the best of the three -- clear, well-presented, etc. And you have to admire someone with the quickness and poise to get off the line, "It doesn't sound right the way you say it, Justice Kennedy," in response to Justice Kennedy's description of the opinion he said Farr wanted the Court to write.
The Limiting Principle
JB
Hey kids, are you down in the dumps after Tuesday's oral argument? Do you want a limiting principle that justifies the individual mandate but doesn't give Congress unlimited power under the Commerce Clause? Fine. Here are three of them. Pick your favorite. Our Platonic Guardians
Brian Tamanaha
As many of our greatest legal minds parse every word and gesture of the Justices in the ongoing Affordable Care Act-fest, we should pause to reflect on what it says about our polity that (once again) nine unaccountable people in a room wield veto power over democratically-enacted legislation dealing with an issue of fundamental political and economic significance to our society.
Whither Rational Basis and the Affordable Care Act?
Adam Winkler
If there was one thing missing from yesterday’s Supreme Court argument on the Affordable Care Act’s minimum coverage provision, it was rationality. Or at least rationality review. That’s the standard of review the Supreme Court has applied consistently for over seventy years to Congress’s purported exercise of its power to regulate interstate commerce. “We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce,” explained the Court in Gonzales v. Raich, “but only whether a ‘rational basis’ exists for so concluding.” Yet although this standard strongly favors the government in the health care case, Solicitor General Donald Verrilli did not emphasize it in his presentation to the Justices. In fact, he all but ignored it. Although Verrilli did warn the Court of its “solemn obligation to respect the judgments of the democratically accountable branches of government,” one might have expected him to remind the Justices repeatedly of the applicability of the rational basis test. Instead, he only once referred to Congress having the authority to use “reasonably adapted” means. A perfect place for Verrilli to have reminded the Justices about rationality review was in response to a question by Justice Kennedy. “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed…. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” The answer, which Verrilli didn’t give, is quite clearly no. The Fair Labor Standards Act of 1938 (U.S. v. Darby); the Civil Rights Act (Katzenbach v. McClung); the Agricultural Adjustment Act applied to a farmer growing wheat for his own farm (Wickard v. Filburn); and the Controlled Substances Act applied to marijuana grown for personal consumption (Gonzales v. Raich) all went a step beyond what prior cases allowed and reshaped the relationship between individuals and the government. And they all applied rational basis review, in which the heavy burden of justification rests with the challenger. Justice Kennedy’s question may suggest, however, that Verilli had little to gain by emphasizing rational basis review. The current swing vote on the Court has shown a fondness for applying rational basis in an unusually non-deferential way. In landmark gay rights cases like Romer v. Evans and, arguably, Lawrence v. Texas, Kennedy used rational basis with bite to strike down laws under the Fourteenth Amendment that might have been expected to survive traditional rational basis review. The ACA case may be Kennedy’s opportunity to import a strong version of rational basis into the Commerce Clause – one that, at once, presumes the constitutionality of laws and imposes on the government a heavy burden of justification. It wouldn’t be consistent with rational basis as we know it but it would be consistent with Justice Kennedy as we know him.
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |