Thursday, July 16, 2020

Progressives Should Take Yes For An Answer – And Not Miss Chances To Exploit Their Surprising Supreme Court Wins

Guest Blogger

Simon Lazarus

 “You would have been dismissed as delusional,” as ACLU Legal Director David Cole said last week, if in October 2019 you had predicted end-of-term progressive Supreme Court victories establishing LGBTQ workplace equality, and rejecting Louisiana’s abortion restrictions,Trump’s bid to rescind DACA, and the Trump-Barr claim that presidents are immune from all federal or state prosecutions and investigations. Many progressive pundits, advocates, and politicians are visibly struggling to get their arms around this surprising turn of events. If their confusion does not clear, progressives could miss, indeed, undermine potential opportunities to regain traction in the war over the courts and the Constitution.
Here are some suggested lessons from the past three weeks’ unforeseen results.
First, progressives should avoid trivializing or delegitimizing the wins the Supreme Court handed them.

One would expect conservatives to repeat – as they have, in droves – Arkansas Senator Tom Cotton’s dismissal of Roberts’ unpleasant surprises as “politicized decision-making.”  But progressives likewise often echo this “politicization” meme – casting Roberts as a “savvy operator” tacking to the left or the center to “reduce the Court’s political profile” in an election year. These parallel reactions reprise the bipartisan consensus response to Roberts’ saving the ACA in 2012 and 2015, and to his 2019 invalidate Trump’s attempt to add a citizenship question to the 2020 census, as strategic maneuvers to “lower political tensions,” as I detailed a year ago on Balkinization.

As was the case then, progressive repetition of political conservatives’ talking points, thereby reinforcing conservatives’ aim to delegitimize decisions inimical to their political agenda, is not only wrong-headed as a tactical matter, but factually dubious at best. To be sure, the Court no less than the rest of the nation is currently facing existential political challenges, requiring the Chief to be a politically adept navigator.  But that does not justify dismissing the Court’s progressive-friendly decisions as exclusively or even primarily political. It is not only more straightforward, but sounder to focus on the substance of what Roberts and colleagues actually decided and wrote.  In 2012 Roberts meticulously detailed the precedent-packed legal case for upholding the ACA individual mandate as a “routine tax incentive.”  In the 2015 decision upholding nationwide ACA tax credit premium subsidies, Roberts reinforced his legal and policy favor for incentive-driven safety net schemes, and layered on a broader interest – expanding the judiciary’s mandate for disciplining the “modern administrative state.”  That latter interest --- often perceived as inherently inimical to progressive goals – was evident in both his 2019 decision rejecting the administration’s “pretextual” rationale for adding a citizenship question to the 2020 census, and in this year’s kindred rebuff of the Trump administration’s slipshod process for shelving DACA. Roberts’ opinions invoke legal authorities and principles that are not only well-defended by him, but, objectively, highly defensible --- and it is both credible and in progressives’ interest to underscore that —legitimate – frame.

Second, progressives should not measure the value of decisions simply by how much they do or do not advance progressive policy or political interests.

Conservative Missouri Senator Josh Hawley greeted with disarmingly cynical candor the Court’s interpretation of Title VII of the Civil Rights Act to protect LGBTQ employees.  “If,” he declaimed, “we've been fighting for originalism and textualism, and this is the result of that, then . . . it's been exactly the opposite of what we thought we were fighting for.”  Otherwise said, all conservatives should care about is results. 

But, in a similar vein, not a few progressives are quibbling about results that didn’t nail down a 100% match with their policy and political goals, oblivious to plain-as-day legal constraints that any judge, no matter how left-leaning, would have been bound to respect.  The Court’s rejection of Trump’s attempt to rescind DACA has been belittled as merely inviting him to craft a better lawyered do-over – though the Executive Branch obviously has substantive authority to undo what was a purely administrative initiative in the first place, as long as appropriate procedures are followed, as, indeed, all nine justices expressly affirmed.  Similarly, some progressive pundits have carped that the Court’s dispatch of Trump’s claim of immunity from subpoenas resulted merely in remands that will likely keep his financial records secret through the November election – without acknowledging that such remands were, under the circumstances, routine, in practice, unavoidable.

Third, progressives should not buy into the line some conservatives are now trumpeting, that “drifting left,” recycling the “Greenhouse Effect” narrative spun about former Justices Anthony Kennedy and David Souter.

In fact, in none of Roberts’ decisions yielding progressive results did he veer from substantive (mainly robustly conservative) positions he had championed before. For progressives to suggest otherwise simply reinforces political conservatives’ interest in tarnishing the legitimacy of this term’s decisions and the motivations of conservative justices who joined in them. Moreover, reiterating that – inaccurate -- take could lead inattentive progressive constituencies to believe Roberts has softened views such, for example, as anti-abortion jurisprudential principles, which he plainly continues strongly to embrace.

Fourth, what progressives should do is spotlight and amplify the legal soundness and landmark significance of the substantive principles affirmed by the Court, and underscore the Court’s rejection of overweening claims for presidential power that would have unraveled those principles: 

With regard to Trump v. Vance and Trump v. Mazars, in which the Court rejected administration claims of absolute presidential immunity from prosecution or investigation, progressives need to spotlight these decisions’ reaffirmation of the foundational Watergate Era precedents empowering the judiciary to enforce presidential fidelity to the rule of law. Before this term’s decisions issued, it was by no means certain that the precedent-shattering case for categorical presidential immunity, elaborated by Attorney General Bill Barr and D.C. Circuit Judge and former senior Trump OMB official, Neomi Rao, would be shelved, certainly not as unambiguously or near-unanimously as it was  Indeed, dissenting Justice Samuel Alito favorably cited Judge Rao’s opinion setting out that recipe for de facto authoritarianism. Before joining the Court, Justice Kavanaugh had voiced doubts about the soundness of the Watergate precedents, specifically, the Court’s unanimous United States v. Nixon order that President Nixon turn over his incriminating tape recordings to Special Prosecutor Leon Jaworski.  At his confirmation hearing, Kavanaugh recanted those doubts, but when the issue of presidential immunity reached the Roberts Court’s docket in 2020, no one could be sure which Kavanaugh would show up to address it. 

Roberts’ marshaling of the precedent set by Chief Justice Marshal, to marginalize that anti-democratic vision, is a great lesson in constitutional messaging – originalist constitutional messaging.  Washington Post Supreme Court correspondent Robert Barnes got that message, and led off his account of the decision with it:
[Though] the rulings were a disappointment for those who hoped to see the president’s long-withheld financial records before November’s election, . . . the court’s more lasting message came in the first sentence of Trump v. Vance: “In our judicial system, ‘the public has a right to every man’s evidence,’?. . . .“Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”
Progressives should deploy Roberts’ message early and often, in court but also – especially – in media and political arenas.

Regarding Bostock v. Clayton County, in which a 6-3 Court, with Justice Neil Gorsuch writing the majority opinion, held that Title VII of the 1964 Civil Rights Act includes LGBTQ employees in its ban on workplace discrimination “because of sex,” the usually spot-on Washington Post editor Ruth Marcus panned this landmark advance for a major progressive objective, because his opinion “applies a conservative legal approach – focusing on the words of the statute, not the intent of its drafters – to reach the liberal policy result.” In fact, Gorsuch’s insisting that enacted statutory language trumps subjective congressional “intent” – in reality contemporaneous societal practice – will tend to favor, not disfavor, evolving progressive statutory goals, just as it did in his interpretation of Title VII. Progressives should embrace that textual focus in interpreting those statutes.

In assessing this term, progressives should include too-little noticed statements in two end-of-term decisions, about how courts should treat statutes in which they find individual provisions unconstitutional, technically known as “severability.”  As put by Justice Kavanaugh in one of these cases, “Apply­ing the presumption [of severability] to un­constitutional provisions from the remainder of the law ra­ther than razing whole statutes . . . . [I]n common parlance, the tail does not wag the dog  . . .. Constitutional litigation is not a game of gotcha against Congress . . .”  These strong endorsements of statute-preserving severability doctrine should prove highly consequential, and not just because they signal likely rejection of Fifth Circuit judges’ and Trump administration nakedly partisan flirtations with invalidating the entire ACA, in a case slated for Supreme Court argument next fall.

Finally, the surprising end of this term should help progressives recognize that the “conservative legal movement” is not a monolith but a coalition of sometimes highly divergent factions. Progressives should look for further alliances with one or more of those factions.  .

The most obvious opening is on interpretive methodology. Roberts’ 2015 contextual approach to interpreting the ACA in King v. Burwell and Gorsuch’s enacted-text-over-legislators’-intent approach to interpreting the 1964 Civil Rights Act in Bostock (and Justice Elena Kagan’s textualist arguments for progressive outcomes) chart the way.

A much more consequential opening for alliance with conservative factions is the now evident fact that Trumpian lawlessness, and his and Attorney General Barr’s unabashed authoritarian yearnings, has opened a new political/ legal front – namely, the courts’ role in imposing rule of law constraints on executive branch agencies and officials  indifferent or hostile to the rule of law. This issue front was not, at least not often, a flash point in pre-Trump left-right constitutional face-offs.  But now, this newly prominent issue arena is one where progressives and principled conservatives -- and moderates and centrists in neither camp – have much basis for common ground – as illustrated by the 7-2 decisions in Vance and Mazars, including both Trump appointees. In that vein, it seems not inconceivable that Trump’s excesses, compounded by the unmet public health and economic challenges of taming Covid 19, could, in some sectors of the right, weaken received fixation with unitary executive theory.

In other words, Trump’s off-the-Republic’s-rails presidency has scrambled the politics of the courts, just as it has scrambled politics in the elective branches, the media, and among voters – and in ways favorable to bedrock values that progressives share with moderates and traditional conservatives. Progressives need to pivot, prioritize, and work across aisles to exploit the wedge issue opened up by Trump Republicans’ – i.e., most Republicans’ – scorn for those bedrock values.

Simon Lazarus is a lawyer and contributor to legal and opinion blogs and journals. He served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public interest law firms in Washington, DC. His email address is

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