Balkinization: March 2013

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
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 Rahman
sabeel.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

How to Decide United States v. Windsor

Law, Music, and Other Performing Arts-- The case of Verdi's High C

A Same-Sex Marriage Postscript

Supreme Court Arguments We'd Like to See

Taking Structure Seriously

Quote of the Day

Interview on Gay Marriage and Originalism

Affirmative Action and Same-Sex Marriage

The Same-Sex Marriage Cases

"My Work Here Is Done"

Do Corporations Enjoy a 2nd Amendment Right to Drones?

Tim Jost interviews me on The Tough Luck Constitution

Same-sex marriage in New Mexico?

Obama White Paper Relied on Nixon Falsification

BREAKING: Supreme Court opinion in gay marriage case pre leaked

CISPA and Surveillance Culture: Who Has the First Amendment Right Against Whom?

Symposium on Fleming and McClain, Ordered Liberty

The Tough Luck Constitution and the Assault on Health Care Reform

Arguments from the Future-- A New Modality of Constitutional Argument

The Visible Deterioration of Law School Quality

The Law Graduate Debt Disaster Goes Critical

The Voting Rights Case You Haven’t Heard Of

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Sunday, March 31, 2013

How to Decide United States v. Windsor

Jason Mazzone

The oral argument this past Wednesday in United States v. Windsor demonstrated (not surprisingly) that the justices, even those inclined to rule in Edith Windsor’s favor, are deeply concerned about issuing a decision that does too much too soon. By the end of the argument it was clear that neither of the two grounds—federalism and equal protection—offered up to the Court as a basis for invalidating section 3 of DOMA readily provides a principled basis on which to rule for Edith Windsor while avoiding the problem of a ruling with sweeping and unpredictable consequences. There is, however, a viable solution that was overlooked in the argument: a modest ruling from the Court on Edith Windsor’s actual claim.

Read more »

Posted 11:00 PM by Jason Mazzone [link]

Thursday, March 28, 2013

Law, Music, and Other Performing Arts-- The case of Verdi's High C

I've posted a draft of my latest article, Verdi's High C, on SSRN. Here is the abstract:

This article continues the discussion that Sanford Levinson and I began over twenty years ago about the relationships between law, music, and other performing arts. It uses as its central example an actual controversy that occurred at the La Scala Opera house in December 2000, when a tenor failed to sing the high C in Verdi's Il Trovatore and the audience erupted in boos, blaming the conductor for a failure of interpretation. Maestro Riccardo Muti defended his choice on the ground that the C does not appear in Verdi's original score; however there is a long tradition of Italian tenors displaying their abilities by signing the high C, and audiences have come to expect it. In fact, one Italian music critic argued that even if Verdi had not written the high C, "it was a gift that the people had given to Verdi"-- an assertion that sounds remarkably like democratic constitutionalism.

The article proceeds through the many arguments that have been offered for and against Maestro Muti's interpretive position. They turn out to be virtually the same as the arguments that lawyers make about constitutional interpretation. This similarity is not accidental. Like (certain genres of) music and drama, law involves a text that has to be put into action by interpreters before an audience. And all three practices involve a "triangle of performance"-- an intricate set of relationships and duties between the creators of texts, the interpreters of texts, and the audiences before whom the texts are performed.

As a result, in law, music, and drama alike, there are a familiar set of styles (or modalities) of argument that participants generally use to justify their choices about how to bring a text to life, or, in the words of the American Legal Realists, to put law into action.

Not only are the styles of argument similar, but performances in law, music, and drama are also constrained by traditions and genres of performance. Just as in law, there are certain interpretations in music and drama that are "off the wall" and "on the wall" at any point in time. And, just as in law, these conventions can change over time through determined action by movements and groups.

The differences between law and the performing arts, however, are just as important as the similarities. Legal performances are usually canonical in a way that musical and dramatic performances are not. It is mandatory to interpret and apply laws in a sense in which it is not mandatory to interpret and perform artistic works like Il Trovatore. Second, at least in the United States, interpretation is hierarchically organized. If a lower court disobeys the interpretation of a higher court, a higher court has the right to reverse it. On the other hand, when Riccardo Muti decides that he is going to perform the G in the Verdi's original printed score instead of the traditional high C, his decision does not have the same effect. Nothing prevents another opera conductor from performing the high C that very same night in another opera house somewhere in the world. And if another conductor does so, there is very little that Muti can do other than criticize. In short, both the similarities and the differences between law, music and drama concern (1) how conventions of performance are organized, defended and enforced, (2) how they are embedded in institutions, and (3) how they change over time.

Posted 8:31 PM by JB [link]

A Same-Sex Marriage Postscript

Gerard N. Magliocca

I want to make a couple of observations about the arguments before we go into hibernation until June.

First, the tenor of the discussion resonated with an article that Kenji Yoshino wrote a few years ago in the Harvard Law Review explaining that the Court is now rather allergic (that's my word, not Kenji's) to expanding the Equal Protection Clause. When a strong equal protection claim is made, the Justices search for a way to reach the same result through a more general rationale. In Lawrence v. Texas, for example, the Justices used the Due Process Clause and framed the issue as a liberty interest rather than going with Justice O'Connor's view that the state anti-sodomy statute violated equality. This week we saw something similar. The Court was not receptive to the Obama Administration's submission that sexual orientation should be treated as a suspect classification. As for DOMA, Justice Kennedy strove mightily to come up with an Article One or Tenth Amendment argument that would invalidate DOMA without reaching the equal protection issue. We'll see if that happens.

Second, the claim that the states have the sole power to define marriage within constitutional constraints has implications for a future Full Faith and Credit Clause claim that every state must recognize a same-sex marriage contracted in another state. The Full Faith and Credit Clause does allow for congressional regulation, as in Section Two of DOMA, but how can Congress lack the authority to define marriage under Article One but possess the power to define marriage (albeit in a more limited way) under Article Four? Maybe Windsor will lead to the conclusion that the Full Faith and Credit Clause does not apply to marriage at all, but that depends on how carefully the opinion is written.

Third, Tom Goldstein threw out the idea over on SCOTUSBlog that the Court could (depending on what Windsor does) vacate and remand Perry for reconsideration in light of Windsor. If that happens, though, then the stay of the District Court opinion would presumably remain in place. That means that same-sex marriages in California may not become legal this year, although many people are assuming that they will become lawful in June.

Posted 7:22 PM by Gerard N. Magliocca [link] (8) comments

Tuesday, March 26, 2013

Supreme Court Arguments We'd Like to See

JUSTICE SCALIA: You -- you've led me right into a question I was going to ask. . . . I'm curious, when -when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .

MR. OLSON: Well, according to your dissent in Lawrence v. Texas, the Court decided that issue in 2003.

Posted 8:30 PM by JB [link]

Taking Structure Seriously

Jason Mazzone

The signs and banners outside the Supreme Court today referred to the right to marry but the argument in Hollingsworth v. Perry was all about constitutional structure. Indeed, I can’t remember a recent argument in which the entire Court appeared to take constitutional structure so seriously. The standing question (on which the outcome in the case might very well turn) presented a virtual civics lesson on democratic design: the role of elected officials in enforcing laws, the residual interests of ordinary citizens in having their laws enforced, the relationship between ballot initiatives and ordinary legislation, and the appropriate function of the courts. And although nobody uttered the F-word, federalism concerns drove questions from nearly all of the members of the Court. In a sign that we are all federalists now--or at least for today--Justice Sotomayor suggested that the marriage question should “perk” at the state level before the Court gets involved. Several justices likewise highlighted the concern (it clearly doomed the Solicitor General’s nine-state solution) that requiring states that already give same-sex couples all the benefits of marriage to also give those couples a marriage license would shut off the very experimentation that federalism is meant to encourage. Today was not a good one for the odd couple of David Boies and Ted Olson, whose effort to establish a right to same-sex marriage nationwide came to a screeching halt. But constitutional structure proved to be alive and well. One structural question, of course, remains: can five members of this third branch of government now agree on an outcome?

Posted 6:03 PM by Jason Mazzone [link] (13) comments

Quote of the Day

Gerard N. Magliocca

Courtesy of a live blog from the WSJ:

JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?

TED OLSON: When did it become unconstitutional to ban interracial marriage?

JUSTICE SCALIA: Don't try to answer my question with your own question.

Posted 12:25 PM by Gerard N. Magliocca [link] (31) comments

Interview on Gay Marriage and Originalism

Francis Wilkinson of Bloomberg interviews me on what originalism might have to say about the Marriage Cases.

Posted 10:38 AM by JB [link]

Monday, March 25, 2013

Affirmative Action and Same-Sex Marriage

Jason Mazzone

This week, the Supreme Court hears arguments in the marriage cases: one case involves a constitutional challenge to section 3 of DOMA; the other case involves a challenge to California's Proposition 8. There seems to be a growing consensus that in U.S. v. Windsor, section 3 of DOMA will be invalidated (a popular rationale is that DOMA will offend both Justice Kennedy's commitment to federalism and his sympathy to gay rights). Predicting the result in Hollingsworth v. Perry (the Prop 8 case) has produced larger divides. This is because even if there is a majority to invalidate Prop 8, there are at least four options to produce that result: (1) The Court could simply dismiss the case for lack of standing on the part of the petitioners, thereby leaving the district court decision invalidating Prop 8 intact. (2) The Court could go big and issue a 50-state ruling that the Constitution prohibits denying marriage licenses to same-sex couples. (3) The Court could hold that once a state grants all of the benefits of marriage through civil union laws (which a minority of states have now down) the state cannot withhold just the term marriage. (4) The Court could follow Judge Reinhardt's logic in Perry and issue a California-specific ruling: that Romer v. Evans prohibits an amendment to the California constitution to overturn a judicial ruling that the state constitution protects the right of same-sex couples to marry (and that resulted in same-sex marriages being performed in the state).

For reasons I explained at the time, Reinhardt's approach in Perry makes little sense as an application of Romer. What's worse, the idea that the people cannot amend a constitution in response to a judicial interpretation is a basic affront to constitutional democracy. This doesn't mean, of course, that the Supreme Court won't take a Romeresque approach in Perry (especially if the other options do not attract five votes).

But a development at the Court today casts significant doubt on a Reinhardt/Romer resolution on the Prop 8 question in Perry.

Read more »

Posted 5:03 PM by Jason Mazzone [link] (7) comments

The Same-Sex Marriage Cases

Gerard N. Magliocca

Robert H. Jackson once said:

"Fictions are often the hostages that the forces of movement give to the forces of position. But frequently lawyers' fictions serve no such useful purpose: too often they are employed as a screen too cover up a retreat."

That's a pretty good summary of where we stand going into the arguments over the next two days. The forces of movement are the proponents of same-sex marriage. There are various fictions that they could use to appease the other side. One is the rationale used by the Ninth Circuit panel in the Proposition 8 case, which makes no sense to me otherwise. Another would be to go with the idea that states cannot deny marriage to same-sex couples when they give them domestic partner benefits. That's better, but does anyone believe that this will be a stable outcome? It is just a pragmatic choice to do less. (You could say the same thing about Romer, which is incapable of principled application outside the context of sexual orientation rights.)

On the other hand, the argument du jour that DOMA exceeds Congress's Article I power fits well with the latter part of Justice Jackson's statement. This federalism argument strikes me as highly implausible, but it is a good screen to cover up the retreat by the forces of position. It avoids an expansion of equal protection doctrine and creates a domain of state law that is (partly) immune from federal control. I'd bet a lot, however, that if this is the ground that the Court uses to invalidate DOMA, that precedent will not get applied again, much as Shelley v. Kramer does not get cited for its state action holding because everyone understands that the case is really about race.

These cases are conclusions in search of an argument. We'll see what else imagination can dream up on Tuesday and Wednesday.

Posted 10:15 AM by Gerard N. Magliocca [link] (10) comments

Sunday, March 24, 2013

"My Work Here Is Done"

Mark Tushnet

Suppose that Justice Kennedy wanted to leave the Court with his reputation at a high point, as he sees things. This Term would seem to be perfect -- far better than any recent Term, or (perhaps) any Term in prospect. Consider what Justice Kennedy might have accomplished when the Term ends: further restrictions on affirmative action, gutting or finding unconstitutional Section 5 of the Voting Rights Act, and -- of course -- substantially advancing the cause of gay marriage. From his point of view, that's a near-perfect Term.

Of course he's a Republican, and might not want to leave when his successor might undo his work (though norms within the Court of keeping some degree of continuity for a while would mean that the changes, while perhaps inevitable, would not be immediate). But, Justice Kennedy is a Reagan Republican, not a Tea Party Republican, and we have the view expressed by another Reagan Republican, Justice O'Connor (reported by Jeffrey Toobin) that "What makes this harder is that it’s my party that’s destroying the country."

Is this a liberal's fantasy or nightmare?

Posted 1:44 PM by Mark Tushnet [link]

Do Corporations Enjoy a 2nd Amendment Right to Drones?

Frank Pasquale

An emerging, "solutionist" narrative about drones goes something like this:

Yes, we should be very worried about government misuse of drones at home and abroad. But the answer is not to ban, or even blame, the technology itself. Rather, we need to spread the technology among more people. Worried that the government will spy on you? Get your own drones to watch the watchers. Fearful of malevolent drones? Develop your own protective force. The answer is more technology, not regulation of particular technologies.

I'd like to believe that's true, if only because technology develops so quickly, and government seems paralyzed by comparison. But I think it's a naive position. It manages to understate both the threats posed by drones, and the governance challenges they precipitate.
Read more »

Posted 1:23 PM by Frank Pasquale [link]

Friday, March 22, 2013

Tim Jost interviews me on The Tough Luck Constitution

Andrew Koppelman

Here.

Posted 4:01 PM by Andrew Koppelman [link]

Same-sex marriage in New Mexico?

Andrew Koppelman

Has same-sex marriage been legal in New Mexico since 1972?

That is the year that the state adopted by referendum an equal rights amendment to the state constitution, prohibiting discrimination on the basis of sex. New Mexico is the only state that has no law specifically dealing with same-sex marriage. The Santa Fe City Attorney, Geno Zamora, has now opined that same-sex marriage is already legal in the state. New Mexico’s marriage application form, specified in the statute, is “described in terms of male and female applicants,” but he reasons that the form is trumped by the state Equal Rights Amendment and the specific language of the statute, “which does not require that the applicants be of the opposite sex.”

The legal argument is sound. Discrimination against same-sex couples is discrimination on the basis of sex: if Lucy is allowed to marry Fred, but Ricky is not allowed to marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is being discriminated against because of his sex. I’ve been saying this for years.

For the most part, the argument has been ignored by courts. If one understands the law as a realist such as Oliver Wendell Holmes did – as a prediction of what courts are going to do - it was clearly unsound: when I first published it in 1989, one would have been crazy to predict that any court would accept the argument. Its logical soundness didn’t matter. Courts were predisposed to reject a huge range of gay rights claims. Same-sex marriage was regarded as absurd by all but a few cranks (of which, as it happened, I was one). A legal argument was defeated by cultural presuppositions.

The existence of such culturally rooted defeaters is an embarrassment for legal reasoning. They clearly are a source of law, as the plaintiffs found in Singer v. Hara, 522 P.2d 1187 (Wash. 1974), which also involved a state-level ERA. But there is no ritualized, lawyerly way to incorporate that source into a legal argument. The reasoning of Singer is pathetically bad – go take a look at it – but it has been followed for years.

Now that defeater is disappearing. Public opinion has shifted in favor of same-sex marriage with astonishing rapidity. So Zamora’s argument may well prevail in court. And if it does, the court will rely on sources of law that have been well established for forty years. It won’t be changing the law. It will simply be making inferences from indisputable premises. Here, as elsewhere, shifts in the culture are making it possible for gay people to demand the constitutional rights that in some sense they already had.

Posted 8:28 AM by Andrew Koppelman [link]

Thursday, March 21, 2013

Obama White Paper Relied on Nixon Falsification

Mary L. Dudziak

My op-ed in the current New York Times:

ON March 17, 1969, President Richard M. Nixon began a secret bombing campaign in Cambodia, sending B-52 bombers over the border from South Vietnam. This episode, largely buried in history, resurfaced recently in an unexpected place: the Obama administration’s “white paper” justifying targeted killings of Americans suspected of involvement in terrorism.

President Obama is reportedly considering moving control of the drone program from the Central Intelligence Agency to the Defense Department, as questions about the program’s legality continue to be asked. But this shift would do nothing to confer legitimacy to the drone strikes. The legitimacy problem comes from the secrecy itself — not which entity secretly does the killing. Secrecy has been used to hide presidential overreach — as the Cambodia example shows.

On Page 4 of the unclassified 16-page “white paper,” Justice Department lawyers tried to refute the argument that international law does not support extending armed conflict outside a battlefield. They cited as historical authority a speech given May 28, 1970, by John R. Stevenson, then the top lawyer for the State Department, following the United States’ invasion of Cambodia.

Since 1965, “the territory of Cambodia has been used by North Vietnam as a base of military operations,” he told the New York City Bar Association. “It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia.”

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration’s lawyers have cited a statement that was patently false.

The rest is here.

Posted 11:06 PM by Mary L. Dudziak [link]

BREAKING: Supreme Court opinion in gay marriage case pre leaked

Mark Tushnet

A draft opinion for the Court in the California gay marriage case has come into my hands. Here it is, in full:

PER CURIAM: "Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting). He was right. The judgment of the Court of Appeals is

AFFIRMED.

Posted 10:00 PM by Mark Tushnet [link]

CISPA and Surveillance Culture: Who Has the First Amendment Right Against Whom?

Guest Blogger

Anjali Dalal

For those of you who missed it, CISPA’s back.

This week, a number of public interest groups including the ACLU, CDT and EFF are engaged in a week of action to defeat the Cyber Intelligence Sharing and Protection Act (CISPA). I have a number of problems with CISPA, which I discussed at length a year ago, here and here, when the bill was on the floor of the House the first time around. The intervening year hasn’t led to significant changes in the language of the bill, so my concerns still stand.

However, a year later, what I find more troubling then the text of CISPA itself is the fact that it’s back. Last year, despite considerable efforts by public interest groups, CISPA passed the House with a vote of 248-168. Because of privacy and civil liberties concerns, the White House made it clear that the President would veto CISPA were it to make it to his desk, and the bill died in the Senate. This year, recognizing that passing a cybersecurity bill is a major priority on both sides of the aisle, House Republicans reintroduced CISPA, though without any modifications to the relevant language. One year later, the negotiation between civil liberties and national security still begins with an opening move that all but zeroes out the points in the civil liberties column.

Read more »

Posted 4:53 PM by Guest Blogger [link]

Tuesday, March 19, 2013

Symposium on Fleming and McClain, Ordered Liberty

For convenience, here are all of the posts for our February Symposium on Jim Fleming and Linda McClain's new book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).

Jack Balkin, Introduction

Sotirios Barber, On Fleming and McClain’s Ordered Liberty

James E. Fleming & Linda C. McClain, Response to Sotirios Barber

Gerard N. Magliocca, Ordered Liberty and Guns

Mark Graber, Ordered Liberty and the Focus of Contemporary Progressive Constitutional Theory

Eric Blumenson, Finding Common Ground: The Liberal Virtues In Ordered Liberty

Michael Dorf, Liberalism's Errant Theodicy

James E. Fleming and Linda C. McClain, Response to Eric Blumenson

James E. Fleming and Linda C. McClain, Response to Michael Dorf

James E. Fleming and Linda C. McClain, Response to Gerard Magliocca

James E. Fleming and Linda C. McClain, Response to Mark Graber

Posted 10:50 PM by JB [link]

Friday, March 15, 2013

The Tough Luck Constitution and the Assault on Health Care Reform

Andrew Koppelman

Chief Justice John Roberts stunned the nation last June by upholding the Affordable Care Act—better known as Obamacare. But legal experts observed that the decision might prove a strategic defeat for progressives. Roberts grounded his decision on Congress’s power to tax. He dismissed the claim that it is allowed under the Constitution’s commerce clause, which has been the basis of virtually all federal regulation—now thrown in doubt.

My new book, The Tough Luck Constitution and the Assault on Health Care Reform, explains how the Court’s conservatives embraced the arguments of a fringe libertarian legal movement bent on eviscerating the modern social welfare state. They instead advocate a “tough luck” philosophy: if you fall on hard times, too bad for you. The rule they proposed - government can’t make citizens buy things – has nothing to do with the Constitution, is useless to stop real abuses of power, and was tailor-made to block this one law, after its opponents had lost in the legislature. They came within one vote of taking health insurance away from 30 million people.

I also scrutinize the high court’s crimped construction of the commerce clause, which almost crippled America’s ability to reverse rising health-care costs and shrinking access. He also places the act in historical context. The Constitution was written to increase central power after the failure of the Articles of Confederation. The Supreme Court’s previous limitations on Congressional power have proved unfortunate: it struck down anti-lynching laws, civil-rights protections, and declared that child-labor laws would end “all freedom of commerce, and . . . our system of government [would] be practically destroyed.” Both somehow survived after the Court revisited these precedents. The arguments used against Obamacare are radically new—not based on established constitutional principles.

The book is written for the general, nonspecialist reader who would like to understand what just happened in the Supreme Court. It explains the whole thing in 146 short pages. Its official publication date is a week away, but heavily discounted copies are already available on Amazon, here.

Posted 5:18 PM by Andrew Koppelman [link]

Wednesday, March 13, 2013

Arguments from the Future-- A New Modality of Constitutional Argument

At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices.

I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year's time. Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?

Mark Tushnet has pointed out to me that he believes that someone like Anthony Kennedy is likely to vote for gay rights in the Marriage Cases--or at least not to vote on the merits against gay rights--because he doesn't want to be remembered as being like Henry Billings Brown, the author of Plessy v. Ferguson. Kennedy would rather be remembered as being like Earl Warren, the author of Brown v. Board of Education, which effectively overruled Plessy.

Justice Brown probably thought he was being perfectly reasonable in Plessy-- in fact you might even argue that his views were completely unremarkable from the standpoint of 1896-- but he was simply on the wrong side of history. And Justice Kennedy doesn't want to be on the wrong side of history, especially when it comes to gay rights.

People often think about the future when they make moral choices in the present, not simply in terms of the likely good or bad consequences of their decisions, but in terms of how they imagine their choices will look to others later on. During the class, I pointed out that it would be very hard to write an opinion on the merits (as opposed to an opinion on standing grounds) upholding DOMA or state bans on same-sex marriage, because of the way the opinion might read 20 years later. Even if what you said seemed perfectly reasonable now, it might seem cruel, insensitive, or bigoted later on. As an example, I offered Justice White's 1986 opinion in Bowers v. Hardwick. Like the New Dealer he was, Justice White did his best to explain that social and economic questions should be left to legislatures, not to courts. But he also said that that "to claim that a right to engage in [homosexual] conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." In other words, he was saying that it's ridiculous to think that gay people would have a fundamental right not to be imprisoned for having sex with the people they love. When you put it that way, it sounds pretty awful.

You can see that, if history goes as you expect it will, some opinions are going to look really bad later on. Try writing the dissent in Brown v. Board of Education. At some point in the opinion, you will have to explain why it is reasonable for states to keep the races separate. Mike Seidman has offered an imaginary dissent in Brown written in the style of Justice Scalia. It reads uproariously badly, as Seidman intended it to. But the larger point is, it's pretty hard to write a dissent from Brown that wouldn't sound bad today. (Do Herbert Wechsler's arguments against Brown sound good today? No, they do not.)

This idea-- that we should decide constitutional cases based on how we think the future will think of what we do today-- is what I call an argument from the future. It is an argument about history, but it is not an argument about original intention or original meaning.

In fact, you might think that it is an anti-originalist argument. Instead of looking to the past for authority, it looks to the future.
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Posted 9:35 PM by JB [link]

The Visible Deterioration of Law School Quality

Brian Tamanaha

A red flag is signaling the potential deterioration of quality at a significant number of law schools. LSAT medians rise and fall by a point or two over time at many law schools, usually in conjunction with changes in the size of the overall applicant pool and the standing of a particular school. That in itself is not a concern—problems arise, however, when law schools accept students who would not have gained admission in years past. Applicants with low LSAT/GPA scores, in particular, have a higher risk of failing out and a higher risk of not passing the bar exam.

Rapidly rising acceptance rates provide ample reason to worry. A decade ago, for the entering class of 2003, only 4 law schools accepted 50% or more of their applicants (the highest at 55.4%).

Jump ahead to 2009, when 35 law schools admitted 50% or more of their applicants to the entering class. Within this total, at 31 law schools the acceptance rate was between 50% and 59%; 4 schools accepted between 60% and 69%, and zero law schools accepted 70% or above.

2011 showed deterioration at the worst levels of acceptance rates. A total of 42 law schools accepted 50% or more of their applicants, broken down as follows: 29 schools accepted between 50% and 59%; 7 schools accepted between 60% and 69%; 5 schools accepted between 70% and 79%; one law school accepted 80.1% (Cooley).

2012 took a big step down in selectivity: 82 law schools accepted 50% or more of their applicants—that’s nearly double the previous year, amounting to about 40% of accredited law schools. Among these law schools, 43 accepted between 50% and 59% of applicants; 23 accepted between 60% and 69%; 13 law schools accepted between 70% and 79%; and 3 accepted more than 80%. The highest in the country was New England School of Law, which accepted 89%--nine out of ten people who applied to NESL last year got in. (Vermont and Phoenix also topped 80%.)

The most worrisome aspect of this deterioration is that a truly severe crunch is set to hit law schools this coming year: the number of applicants for entry in 2013 will be around 55,000, substantially down from 68,000 applicants for the class of 2012. (More than 55,000 applicants have been accepted annually by law schools in the aggregate in recent years.) It is likely that more than 100 law schools nationwide will accept 50% or more of their applicants (20 schools accepted between 45% and 49% in 2012), and several dozen law schools will accept two-thirds or more of their applicants. This will likely occur even if law schools shrink their entering classes, as many will have little choice but to do. (I explore the implications of these developments in Chapter 13 of Failing Law Schools.) Declining admissions standards will be manifested in lower bar pass rates in coming years at these law schools, as has already occurred with Thomas Jefferson.

Over two dozen law schools have seen painful declines in selectivity in the past decade. For example, New England School of Law accepted 37.2% of applicants in 2003, compared to 89% in 2012. (John O’Brien, the dean of NESL, who reportedly earns in excess of $800,000 annually, is the immediate past Chair of the ABA Section on Legal Education.) In the same ten year period, Suffolk went from 40.2% to 74%; John Marshall (Chicago) from 35.9% to 63%; Thomas Jefferson from 38.7% to 73%, and so on.

Acceptance rate is a measure of selectivity (although it can be artificially manipulated) because the deeper a law school digs into the applications pile, the lower the caliber of students it lets in, at least by LSAT/GPA measures. A number of law schools appear headed toward near open admissions for the upcoming entering class.

Posted 4:27 PM by Brian Tamanaha [link] (12) comments

Tuesday, March 12, 2013

The Law Graduate Debt Disaster Goes Critical

Brian Tamanaha

Last year I wrote about the quickly exploding law graduate debt disaster. It is getting worse, much worse. In 2010, only 4 law schools had graduates with average debt in excess of $135,000; in 2011, 17 law schools did. This past year 26 law schools surpassed this amount.

Average law graduate debt in 2011 at both Thomas Jefferson and California Western topped $153,000. In 2012, Thomas Jefferson graduates had average debt of $168,800. Listed below are the twenty law schools with the highest average debt for the graduating class of 2012--followed in bold by the percentage of the graduating class of 2011 that landed full time jobs as lawyers (at least one year duration) within nine months of graduation (employment data from 2011 are reported because 2012 "JD required" data are still unavailable and the difference between these two years will be small):

Thomas Jefferson $168,800 (26.7%)
California Western $167,867 (39.3%)
Phoenix School of Law $162,627 (37.4%)
Northwestern University $156,791 (77%)
New York Law School $154,647 (35.5%)
American University $152,659 (35.8%)
New York University $149,336 (90.1%)
Southwestern $147,976 (34.6%)
Georgetown $146,169 (62.6%)
Whittier $143,536 (17.1%)
Florida Coastal $143,111 (36.6%)
John Marshall (Chi.) $142,587 (43.4%)
John Marshall (Atl.) $142,515 (40.9%)
Catholic (D.C.) $142,115 (43.7%)
Loyola Marymount L.A. $141,936 (42.7%)
Columbia $141,607 (94.1%)
Charleston L.S. $141,457 (51.3%)
Pacific (McGeorge) $140,566 (43.6%)
Univ. Miami $140,032 (55.1%)
Cornell $140,000 (76.1%)

These numbers substantially understate the actual debt carried by law students on graduation day, I must emphasize, because they only include debt taken out while in law school. Undergraduate debt (average $25,000) and interest accrued on law school debt, which at these levels can exceed $10,000, must be added on top.

Making these extraordinary debt levels all the worse, at the majority of law schools on this list less than half the class obtained full time lawyer jobs. Although certain non-lawyer positions can be desirable, I use the "JD required" employment statistic not only because that is the primary goal for people who attend law school, but also because only corporate law jobs pay enough to manage debt levels this high (or public service jobs with debt forgiveness). The strong preference for lawyer jobs is borne out by the fact that graduates of top law schools take "JD required" jobs 90% plus of the time (a pattern which holds for at least the past decade).

A few examples will make the above 2011 employment data more concrete: at Whittier, among 123 total graduates, only 21 secured full time jobs as lawyers; 63 out of 236 Thomas Jefferson graduates landed full time lawyer positions; at New York Law School, only 185 out of 515 graduates landed full time lawyer jobs. Poor results are not limited to low ranked law schools. At American, only 167 out of 467 graduates obtained full time lawyer jobs; Loyola Marymount saw only 172 out of 403 graduates land full time jobs as lawyers. (All figures are for jobs with at least one year duration).

Not only are many graduates from law schools on this list not landing full time jobs as lawyers, at lower ranked law schools even the fortunate graduates who get lawyer jobs do not earn enough to manage the standard monthly loan payments, which at these debt levels range from $1,700 to $2,000, and up. The bulk of graduates from low ranked law schools with lawyer jobs work in firms of 2-10, which typically pay between $40,000 and $60,000. This is not enough to manage the monthly loan payments even on the extended 25 year repayment plan. Thousands of law school graduates will be forced by financial necessity to enter IBR, a federal program designed to assist graduates in "partial financial hardship." (I will post a paper analyzing the implications of IBR shortly.)

Law graduate debt has been increasing by remarkable amounts on a yearly basis: going up at private law schools from $92,000 in 2009, to $106,000 in 2010, to $125,000 in 2011. Average debt figures for private law grads in 2012 (when compiled) will likely exceed $130,000, and average debt for public law grads, which has also gone up rapidly, will likely reach $80,000. Again, these figures do not count undergraduate debt and accrued interest.

One last piece of bad news: the upcoming JD graduating class of 2013 will be the largest ever, with the highest debt ever, flooding into a dismal job market.

Posted 10:30 PM by Brian Tamanaha [link] (89) comments

Monday, March 11, 2013

The Voting Rights Case You Haven’t Heard Of

David Gans

More than a week after oral argument in Shelby County v. Holder, the scorn expressed by Chief Justice Roberts, Justice Scalia and others towards the Voting Rights Act continues to dominate the news. Whether it be Justice Scalia’s statement that the Voting Rights Act survives only because of the self-perpetuating power of “racial entitlements” or Chief Justice Roberts’ dubious claim that the state of voting discrimination may be worse in Massachusetts than Mississippi, there has been an outpouring of coverage highlighting just how the weak the arguments against the Voting Rights Act are. As Linda Greenhouse put it, it would be “an error of historic proportions” – akin to Plessy and other travesties in Supreme Court history – to strike down the Voting Rights Act when the Constitution expressly gives to Congress the power to eradicate racial discrimination in voting. With the focus on whether the Court will strike down our nation’s most iconic civil rights law, there has been virtually no attention to the fact that, when the Justices convene again on March 18th, the Supreme Court will hear oral argument in a second major voting rights case, Arizona v. Inter Tribal Council. But Inter Tribal Council is a very important case that will have huge implications for Congress’ power to protect the right to vote and to enact new, needed reforms in federal elections.

Inter Tribal Council concerns the validity of an Arizona law, adopted by the voters in 2004, requiring citizens to submit satisfactory documentary proof of citizenship in order to register to vote. If Arizona succeeds in its appeal, the effect will be to gut another critical voting rights statute, the National Voter Registration Act, designed to remove state barriers to voter registration in federal elections. In Inter Tribal Council, as in Shelby County, conservatives are ignoring the express powers that the Constitution gives to Congress to protect the right to vote, a fundamental right recognized throughout the Constitution’s text.

The Inter Tribal Council case concerns the scope of Congress’ powers under the Elections Clause contained in Article I, Section 4 of the Constitution, which gives to Congress the express power to “make or alter” state law regulating the time, place, and manner of federal elections. As CAC’s brief, co-authored with the Brennan Center for Justice and filed on behalf of prominent constitutional law professors, including Pulitzer-Prize winning historian Jack Rakove, explains, the Founders of the Constitution inserted this provision in the Constitution to ensure that the American people would have the right to freely select representatives of their choice without interference by the states. James Madison stressed the importance of the federal role in securing equal voting rights: “Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government.” Because the right to vote was an “important and sacred” right, the Founders of the Constitution explicitly gave to Congress the power to “secur[e] to the people their equal rights of election.” The text and history of the Elections Clause shows that the Constitution’s protection for the right to vote dates all the way back to the Constitution’s Founding. Concern that states would not respect the right to vote is a theme that runs through our entire constitutional history.

In enacting the National Voter Registration Act, Congress used its explicit power to “make or alter” state law to provide a simple, uniform method of voter registration that would guarantee access to the ballot for all eligible voters in federal elections. Congress did not want states piling on additional restrictions on the voter registration process that would make it more difficult for Americans to register to vote. To that end, Congress provided for a single “Federal Form” to be used for mail-in voter registration for federal elections throughout the nation. The issue in Inter Tribal Council is whether, under the Constitution, Congress can establish a nationwide system of voter registration for federal elections or whether states retain the authority to add their own restrictions. Despite the Constitution’s express grant of power to Congress over the time, place, and manner of federal elections, Arizona argues that, because it has the power under the Constitution to set qualifications for voting in federal elections, it may lawfully require citizens who register to vote in federal elections to submit satisfactory documentary proof of citizenship. Invoking the principle of constitutional avoidance, Arizona argues that the National Voter Registration Act must be narrowly construed. In its view, the State’s sovereign right to register those it deems properly-qualified voters trumps Congress’ power to protect the right to vote in federal elections.

This should be an open and shut case. The National Voter Registration Act does not permit states to enact burdensome voter registration laws like Arizona’s, which can disenfranchise citizens and deny them their constitutional right to vote. To secure to Americans their federal constitutional right to vote, the NVRA mandates that “each State shall accept and use the mail voter registration application form prescribed by the Federal Elections Commission . . . for the registration of voters in elections for federal office,” a form that requires registrants to assert, under penalty of perjury, that they are U.S. citizens, but does not require documentary proof of citizenship. Under the Constitution, it is Congress, not the states, that has final say over the rules applicable to voter registration in federal elections. As the text and history of the Elections Clause shows, because of distrust of the states concerning federal elections, the Founders of the Constitution gave Congress the power to override restrictive state laws, like Arizona’s, regulating the time, place, and manner of federal elections.

Contrary to Arizona’s claim, the National Voter Registration Act does not all interfere with the state’s authority to regulate the qualifications of voters in federal elections. Consistent with more than a century of Elections Clause precedent, the Act regulates the process of voter registration – a matter conceptually separate and distinct from the setting of voter qualifications – that falls squarely within Congress’ power under the Elections Clause to regulate the manner of elections. Indeed, the Act specifically recognizes citizenship as a qualification for voting; it simply does not permit Arizona or any other state to require documentary proof of citizenship as a pre-condition on voter registration. Arizona, of course, is free to urge Congress to amend the Act to make it more to its liking, but it may not simply ignore Congress’ express power, established in the Elections Clause, to “make or alter” state law in order to protect the right to vote in federal elections and provide a uniform means of ensuring that federal elections are decided, as the Constitution provides, by the people.

Both Shelby County and Inter Tribal Council pose a fundamental question of constitutional fidelity: will the Court’s conservative Justices honor the Constitution’s text and history that gives Congress broad powers to protect the right to vote from state infringement? Beginning at the Founding, continuing through Reconstruction and beyond, it has been a pillar of our constitutional system that the right to vote is a fundamental aspect of our birthright as American citizens and that Congress has broad power to protect the right to vote and give meaning to our Constitution’s promise of rule “by the people, of the people, and for the people.” Inter Tribal Council, like Shelby County, test whether conservative Justices will pay heed to these fundamental principles or look for ways to license voting discrimination and disenfranchisement.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Arizona v. Inter Tribal Council. This post is cross-posted at Text and History.

Posted 11:12 AM by David Gans [link] (75) comments

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