Those of us who are, or have been, lawyers have watched the litigation over Trump’s purloined documents with amazement bordering on mystification. Suddenly, the potential consequences of Trump’s appointment of rogue judges are too dire to ignore.
The crises within the federal judiciary aren’t all new. During my years in the academy, I was a subscriber and occasional participant of the Law and Courts listserv–a forum for professors of law and political science. Well before McConnell’s shocking departure from constitutional and democratic norms, or Trump’s nomination of only Federalist Society favorites, scholars had focused on the need to expand the Supreme Court–a need prompted by increased workloads leading to fewer decisions.
Participants also raised concerns about the increasing politicization of the courts. As an article in Politico recently put it, the widely ridiculed–and clearly political– Cannon ruling
underscores the deep fragility of judicial independence and the extraordinary strains it’s of late experienced. The episode is further a timely reminder that there’s no guarantee that an independent judiciary will survive. Just like other public institutions, American courts can unravel and lose public trust, with no easy way to get it back.
The lifetime appointments of federal judges were intended to shield jurists from political pressure, leaving them free to issue decisions based upon their reading of the law, rather than partisan passions. The Founders seemed not to worry about the possibility of politicized appointments.
As Politico noted,
the drafters of the Constitution assumed that there was little risk of politicized appointments for two reasons. First, they expected the supply of qualified judges to be very limited. Second, they viewed the Senate as a disinterested body, “standing above politics.” Of course, both assumptions quickly foundered with the rise of law schools and national political parties. And the federal judiciary attracted partisan labels as early as 1800. Judicial independence, in short, was compromised early and deeply by the failure of the framers’ guiding assumptions.
Commenters to that Law and Courts listserv also noted the effects of longer lifespans on the federal judiciary, and advocated term limits that would be long enough to shield judges from the immediacy of political repercussions (the preferred term was 18 years) to mitigate concerns over terms stretching into judicial dotage.
Now, concerns about the state of the judiciary extend well beyond academic discussions.
It is in this context of pervasive skepticism about the quality of American courts that Cannon issued her order. In its details, it confirms and exacerbates skepticism about the idea of an apolitical bench. Even conservative commentators have flagged its sharp swerve from the normal treatment criminal suspects receive based on “irrelevant” considerations about Trump’s “reputation.” Concerns were stoked when Trump’s lawyers “went shopping” for a judge he’d appointed — rather than appear before the magistrate who’d issued the original warrant — and who’s received death threats for his pains from the former president’s supporters. And they flared further when Cannon telegraphed her intention to rule for the president who appointed her even before the Justice Department had filed any papers.
Cannon’s order, then, is troubling not just in isolation as a “deeply flawed” decision on its specific merits. It also should worry because it seems to affirm, and hence accentuate, a larger narrative of fracturing judicial independence.
The practical reason to increase the number of courts and judges is that the country is much larger than it was in 1990, when Congress made its last expansion, adding 11 seats to the circuit court system and 61 seats to the district court system. This was modest compared with a change in 1978, when President Jimmy Carter signed the largest judiciary expansion in history, creating 150 new judgeships and expanding the entire federal bench by more than a third.
In the 32 years since 1990, the United States has grown from a population of roughly 250 million to a population of over 330 million. More people means more legal disputes, more legal disputes means more cases, more cases means more work. And the federal judiciary is swamped. Last year, the Judicial Conference of the United States, a nonpartisan policymaking body for the federal courts, recommended that Congress create 79 new judgeships across existing district and appeals courts.
Congress, and here I mean Democrats, should go further with a court expansion to rival Carter’s. They should create new circuits, new courts and new judgeships. The goal is simple: to account for growth and to deal with the problem of a cohort of hyperpartisan and ideological judges whose loyalty to Trump may outweigh their commitment to the law.
I agree. But it won’t happen if Americans don’t vote Blue No Matter Who this November.
It’s interesting (okay, infuriating) to note the highly selective “originalism” practiced by retrograde justices on the Supreme Court. In their professed zeal to mind-meld with the nation’s earliest Founders, they entirely ignore what scholars have called “the Second Founding”–the post-Civil War passage of the 13th, 14th and 15th Amendments.
Ratified in the years immediately following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote.
Both Justice Ketanji Jackson and Heather Cox Richardson have recently reminded us of that “original” history.
President Andrew Johnson, an unrepentant racist, vetoed the 1866 civil rights bill, claiming–among other things– that it wasn’t race neutral. It wasn’t–and it wasn’t intended to be. Congress passed it over his veto– and based the Fourteenth Amendment on it.
The 13th, 14th, and 15th Amendments explicitly give the federal government power to protect individual rights in the states. Scholars like Akhil Reed Amar, who teaches Constitutional Law at Yale, call their passage the “second founding.”
Amar explains that the Reconstruction Amendments shift emphasis somewhat from Madison’s first concern– protecting people from unrepresentative government (see Federalist 51)–to his second: protecting minorities from the tyranny of the majority. The 14th prioritizes “ideals of liberty and equality.”
Amar and Richardson are two of the many historians and constitutional scholars who define the period following the Civil War as a “reconstruction” or “second founding.” (Amar’s magisterial book The Bill of Rights is subtitled Creation and Reconstruction.) So it is very interesting that today’s self-described “originalists” ignore that reconstruction.
I can see two reasons for that studied avoidance: first, the clear legal meaning of those Amendments, especially the 14th, is inconsistent with their theocratic revisionism; and second, they provide clear historical evidence that Constitutional principles have evolved to meet changing times.
A 2019 article in the New Yorker focused on the work of constitutional historian Eric Foner, who has written extensively on the Reconstruction Amendments. As Foner explains, the issues central to those Amendments remain central to our politics today.
Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.
Foner points out that, even in the immediate wake of their passage, the Court narrowed application of the Amendments, arguing–against the evidence–that they hadn’t really effected much change. Foner and other historians disagree.
Many years ago, when I was doing research for a book I was writing, I unearthed contemporaneous newspaper coverage of the arguments for and against ratification of the Fourteenth Amendment. Those debates confirm Foner’s reading: the Americans who were preparing to vote on their state’s ratification of the Fourteenth Amendment believed it made very substantive expansions to the “privileges and immunities” of citizenship. It was with that understanding that they voted for (or against) ratification.
As one pundit noted during Amy Comes Barrett’s (excessively brief) confirmation hearing: “given that the Constitution was effectively rewritten by the Reconstruction Amendments, it would be great to see a Supreme Court nominee say something like “I will interpret the Constitution as it was understood in 1870.”
The Supreme Court’s recent turn away from civil rights and toward states rights claims legitimacy from a familiar but false history: the Constitution of 1787 carefully preserved the states sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.
None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War … These decisions betrayed Lincoln, who had promised a new birth of freedom at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality…
Basically, the Court continues to ignore “the widely understood meaning and purpose of those amendments at the time they were ratified.”
Back in 2012, when I was still teaching, I published an essay in an academic journal. I recently came across it, and realized that–as the midterms approach and the GOP departs further from reality–it’s more applicable than ever, so I’m sharing it.
I titled it The Great Disconnect.
As another election season comes to a close, one lesson is abundantly clear: there is a huge disconnect between the skill sets public offices require and the sales pitches candidates are making.
Campaigns are job applications and the candidates are applicants. We voters are the folks doing the hiring. In order to make informed “hires,” we need to know two things: what competencies the job requires, and which of the “applicants” come equipped with the requisite skills as well as our preferred policy positions.
Is this election for mayor, governor or president? We need someone who understands the relevant administrative structure, who is able to assess and recruit knowledgeable technocrats and aides, who has a good grasp of economic and budgetary issues, tax policies, intergovernmental relations and the mechanics of service delivery. It is highly desirable that the applicant be aware of the competing needs and desires of the diverse constituencies to be served and have an ability to communicate with representatives of those constituencies.
Is this an election to fill a legislative seat? In addition to the skills listed above, a policy background is highly desirable—as is a demonstrated ability to work in a bipartisan way with other legislators and members of the executive branch.
If democratic processes are going to produce satisfactory results, voters need information that allows them to match the qualifications of the candidates to the requirements of the position. Unfortunately, it is impossible to sit through the avalanche of misleading 30-second spots, scurrilous Internet postings or negative direct-mail pieces that flood our in-boxes and snail-mail boxes and not conclude that the task is impossible, and that the American electoral process is badly broken.
There is no dearth of theories about what ails us: too much money, too much rigid ideology, too much partisanship, too many lobbyists, too many pundits and too few real reporters….the list is extensive, and all of the items on that list undoubtedly contribute to the sorry state of today’s politics. But these things would matter less if the electorate were better informed.
Let me just offer a couple of all-too-typical examples. In my state, a Senate candidate is currently airing a spot blasting his opponent—a sitting Congressman—for voting to raise the debt ceiling. This political attack depends for its effectiveness on public ignorance of the difference between a vote to raise the debt ceiling and a vote to add to the national debt. Large bipartisan majorities have raised the ceiling without controversy for many years, because members of both parties have understood that difference.
The national debt is a real problem. Reasonable people can disagree about the mix of “revenue enhancements” (aka taxes) and spending cuts needed to address that problem, how much stimulus is needed to get the economy moving again, and what programs might be cut without harming our still-tenuous recovery from the Great Recession. But only someone with absolutely no understanding of the economic system advocates a reckless act that would make it impossible for the U.S. Government to pay its bills—and only an uninformed voter would respond positively to such advocacy.
A more typical political attack is some variation on the theme that “Congressman X has been in Washington for Y years, but we still have problem Z.” No one who understands checks and balances and the limits on what any individual member of Congress can accomplish is going to take such a charge seriously. The fact that a political candidate believes this to be an effective argument tells us a lot about that candidate’s respect for the intelligence of the average voter.
There is another possibility, of course. It may be that these appeals are not simply cynical ploys based upon perceived public ignorance. It may be that the people who are running for office actually believe their own arguments. In several races around the country, candidates are promising to enact policies that are clearly unconstitutional. Others are promising to achieve economic results that are mathematically impossible. Knowledgeable folks tend to discount these statements as political games candidates play, but in at least some cases, it’s clear the candidates really don’t know any better.
It would be nice if we could simply shrug off the more embarrassing examples of electoral dysfunction, but the quality of our political candidates ultimately affects both the voting public and the public administrators trying to serve that public.
Just as having a crazy boss makes a private-sector worker’s job more difficult, electing people to set policy in areas they don’t understand is a major barrier to public problem solving. If members of the House Science and Technology Committee reject evidence of global climate change (last year, one member reassured a panel of climate scientists that we don’t need to worry because after the flood, “God promised in Genesis that He would not destroy Earth again, and I believe God”), where will we find the human and fiscal resources necessary to combat global warming and reduce carbon emissions? If members of the Texas Board of Education reject evolution and choose creationist textbooks that are then adopted for use throughout the country, how do conscientious science teachers do their jobs? For that matter, where will we find the next generation of competent biologists and doctors?
There are a number of things individuals might do to help clean up the current mess that is our election system. We can visit fact-checking sites to vet campaign pronouncements. We can work to reform the redistricting process. We can sign on to one of the various efforts to reverse Citizens United – the case that opened the money spigot that became the gusher of SuperPac spending. Those of us who are educators must work to raise the levels of civic literacy in this country.
And we all need to withhold our votes from those who run campaigns geared to public passions and popular ignorance.
Sometimes, a news article will hit several of my hot buttons. This recent one managed to do so. (Not that it is particularly difficult to piss me off…the older I get, the crankier…)
Here’s the gist of the story: a poll taken by Politico discovered that
about 57 percent of Republicans, and 70 percent of Americans overall, believe the Constitution would not allow America to be declared a “Christian nation.” Respondents were then asked “Would You Favor or Oppose the United States Officially Declaring the United States to be a Christian Nation?”
Sixty-one percent of Republicans were in favor of just that, with 78 percent of Republicans who identify as an evangelical Christian backing the idea. Support was even higher among older Republicans.
Regular readers of this blog know of my preoccupation with America’s low levels of civic and constitutional literacy. These percentages reflect that only 57 percent of Republicans understand–or are prepared to acknowledge– the intended effect of the First Amendment, or the history of America’s constitutional debates.
Then, of course, there’s the little matter of America’s still-pervasive racism. Evidently, there are still a lot of White folks who are dogged believers that the pre-Civil War South should rise again, whether or not it actually will…
Per Politico
Our polling found that white grievance is highly correlated with support for a Christian nation. White respondents who say that members of their race have faced more discrimination than others are most likely to embrace a Christian America. Roughly 59 percent of all Americans who say white people have been discriminated against a lot more in the past five years favor declaring the U.S. a Christian nation, compared to 38 percent of all Americans. White Republicans who said white people have been more discriminated against also favored a Christian nation (65 percent) by a slightly larger percentage than all Republicans (63 percent).
Regular readers are also well aware of my language prejudices; I have this old English-teacher belief that words have meanings, and that communication requires that the people using those words broadly agree upon those meanings.
In any sane world, the assertion that White Americans suffer discrimination would be met with incomprehension. I know that political strategists dislike the contemporary use of the term “privilege”–its users sound elitist, and when one thinks of “privilege,” what comes to mind is unfair advantage. (Actually, White skin does confer advantage, just not the kind of material advantage that this particular word brings to mind.)
The fact remains that, in the good old U.S. of A., what is perceived of as discrimination against White people is a very overdue erosion of the considerably privileged status that skin color has historically afforded them.
When I express my frequent criticisms of Christian Nationalism (which is, in reality, White Christian Nationalism), I try to be very clear that I am not criticizing Christianity. (To appropriate a phrase, some of my best friends are Christian..) I am happy to report that real Christians agree with me, as the following excerpts from a statement from Christians Against Christian Nationalism makes clear.
Christian nationalism seeks to merge Christian and American identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism demands Christianity be privileged by the State and implies that to be a good American, one must be Christian. It often overlaps with and provides cover for white supremacy and racial subjugation. We reject this damaging political ideology and invite our Christian brothers and sisters to join us in opposing this threat to our faith and to our nation.
The statement affirms basic constitutional principles: That “one’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community,” and that
“government should not prefer one religion over another or religion over nonreligion.” And it affirms others:
Conflating religious authority with political authority is idolatrous and often leads to oppression of minority and other marginalized groups as well as the spiritual impoverishment of religion.
We must stand up to and speak out against Christian nationalism, especially when it inspires acts of violence and intimidation—including vandalism, bomb threats, arson, hate crimes, and attacks on houses of worship—against religious communities at home and abroad.
Whether we worship at a church, mosque, synagogue, or temple, America has no second-class faiths. All are equal under the U.S. Constitution. As Christians, we must speak in one voice condemning Christian nationalism as a distortion of the gospel of Jesus and a threat to American democracy.
So Republicans who want to label America as a “Christian Nation” manage to hit several of my hot buttons: concerns about civic literacy and the normalization of racism, annoyance at the misuse of language, and deep, deep fear of the rise of Christian Nationalism.
Over the past couple of weeks, several people have contacted me asking that I comment on an Indiana lawsuit that is currently on appeal to the Supreme Court, which will hear it this coming session unless the parties settle and pull it from consideration. The case is Health and Hospital Corporation v. Talevski.
There is a (well-founded) fear that the current, retrograde Supreme Court majority will use this case to eliminate the use of Section 1983 by Medicaid beneficiaries.
Section 1983 is a 150-year-old provision of federal law that permits citizens to sue when government is violating their rights. If such a suit is successful, a companion provision requires that government pay the lawyer who handled the successful case. (Needless to say, without some prospect of being paid, very few lawyers will be willing to accept such cases–and in the case of Medicaid, plaintiffs by definition lack the resources to make such payments.)
I’ve been reluctant to address the case, because it is very technical and it’s been a long time since I was a practicing lawyer. It’s one thing to pontificate about the Constitution, which I’ve been teaching for the past 20+ years, and quite another to do a “deep dive” into an area of the law with which I am no longer familiar. For that matter, my own background with Section 1983 focused on its use to sue government when someone who is acting “under color of state law” deprives citizens of their civil rights; I was far less familiar with its use under the Spending Clause, which Talevski threatens.
Because several of the people expressing concern are people I highly respect, I did a bit of research. That research included consulting Indiana’s ACLU, which very kindly provided me with a letter the office had previously issued on the subject. Here is the opening paragraph of that letter:
To Whom It May Concern:
As you are undoubtedly aware, in Health and Hospital Corporation v. Talevski, the U.S. Supreme Court has agreed to address the issue of whether spending-clause legislation may be enforced through an action brought pursuant to 42 U.S.C. § 1983. It is, of course, impossible to predict how the Court will resolve this issue, or how narrow or broad its holding might be. However, our office has a lengthy history of relying on § 1983 to remedy violations of spending-clause legislation that is designed to protect the neediest Hoosiers. An unfavorable decision in Talevski could serve as an absolute bar to similar litigation in the future.
I try to keep these posts relatively brief, but given the stakes of this litigation and the concerns it raises, I am going to end this post by pasting in the rest of the ACLU’s letter. Before I do so, however, I want to confirm my agreement with the assertion that eliminating use of Section 1983 would effectively eliminate the rights of literally millions of Americans who rely on Medicaid.
A right without a remedy for its violation is not a right at all. And given the current composition of the Supreme Court, the threat that important rights will be “on the chopping block” is not an idle one.
Below is the portion of the letter from ACLU lawyer Gavin Rose describing just how important Section 1983 has been in enforcing the rights of Hoosiers and all American citizens.
_______________________
In Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012), our office filed a lawsuit challenging a recently enacted Indiana statute prohibiting state agencies from paying state or federal funds to any entity that performs abortions. Although we raised a constitutional claim, the primary claim—and the claim on which the statute was ultimately invalidated by the Seventh Circuit—was that, by denying Medicaid recipients the ability to receive family-planning services through Planned Parenthood, the statute violated the free-choice-of-provider provision of federal Medicaid law, 42 U.S.C. § 1396a(a)(23). Federal Medicaid law, like the entirety of the Social Security Act, was enacted pursuant to Congress’s spending-clause authority.
In addition to allowing recipients to select the providers from whom they wish to receive services, federal Medicaid law establishes that participating states must provide certain enumerated services to Medicaid-enrolled individuals and that they may elect to provide additional services. See 42 U.S.C. § 1396a(a)(10)(A). However, once a state provides a certain service, whether the provision of that service is required or optional, the state must pay for that service whenever it is “medically necessary” for a Medicaid recipient. With overwhelming success, our office has routinely relied on § 1983 to bring litigation when Indiana has failed to provide for the receipt of medically necessary services by children, persons with severe disabilities, or other vulnerable Hoosiers:
Ø In Selner v. Secretary of the Indiana Family & Social Services Administration, No. 1:15-cv-01874-SEB-MPB (S.D. Ind.), we filed a class action lawsuit challenging Indiana’s refusal, in contravention of virtually unanimous medical opinions, to provide Medicaid coverage for the ground-breaking Hepatitis C drugs unless a patient had already experienced substantial liver damage. The lawsuit resulted in a settlement agreement whereby Indiana agreed to cover the medications without regard to the severity of an individual’s disease.
Ø In Bontrager v. Indiana Family and Social Services Administration, 697 F.3d 604 (7th Cir. 2012), our office represented a Medicaid recipient in need of significant dental services who challenged Indiana’s $1,000 annual “cap” on such services. After concluding that this “cap” excluded medically necessary services and therefore violated federal Medicaid law, the Seventh Circuit affirmed the issuance of a preliminary injunction in favor of our client.
Ø In A.M.T. v. Gargano, 781 F. Supp. 2d 798 (S.D. Ind. 2011), we represented a class of children with severe disabilities (such as cerebral palsy or other muscular disorders) that had been prohibited from receiving physical or occupational therapy because Indiana determined that the therapy would not result in further functional progression, even though the children would experience significant regression in absence of therapy. The district court entered summary judgment in our client’s favor, enjoining Indiana from enforcing its prohibition on so-called “maintenance therapy.”
Ø In Chadwell v. Indiana Family & Social Services Administration, No. 11D01-0808-PL-373 (Clay Cnty. Superior Court), we represented a class of severely disabled Medicaid recipients who relied on so-called “attendant care services”—which are utilized to assist persons in performing their activities of daily living—to allow them to live in the community rather than in an institutional setting. After Indiana restricted persons from receiving more than 40 hours a week in these services, we filed suit. The court issued first a preliminary injunction and then summary judgment in our clients’ favor.
Ø In McArty v. Roob, No. 49D04-0606-PL-24259 (Marion Cnty. Superior Court), we represented a class of Medicaid recipients in need of dentures or related repairs in challenging Indiana’s refusal to cover these services for persons who had received similar services within the past six years. After we filed suit, Indiana entered into a consent decree in which it agreed to provide coverage for medically necessary services without regard to its six-year restriction.
Ø And in Collins v. Hamilton, 349 F.3d 371 (7th Cir. 2003), we successfully represented a class of mentally ill children in challenging Indiana’s failure to provide Medicaid coverage for long-term residential treatment in certain residential facilities.
On top of all this, in order to ensure that persons in need are not forced to wait indefinitely while states contemplate their eligibility for public benefits, federal law frequently establishes specific time limits that states must meet to process applications or appeals. In the past, our office has relied on § 1983 to file class-action litigation seeking to enforce federal-law time limits to issue decisions on Medicaid applications (Thornton v. Murphy, No. 1:08-cv-01853-LJM-DML – S.D. Ind.), to resolve unemployment appeals (Gorman v. Commissioner of the Indiana Dep’t of Workforce Development, No. 49D06-1006-PL-26087 – Marion Cnty. Superior Court), to resolve Medicaid appeals (Murray v. Roob, No. 49D12-0505-PL-16671 – Marion County Superior Court), and to resolve Food Stamp appeals (Nickels v. Roob, No. 49D01-0701-PL-4025 – Marion Cnty. Superior Court). We have also relied on federal Medicaid law to file a lawsuit challenging Indiana’s failure to obtain and evaluate required medical evidence before deciding that an applicant is not disabled and therefore ineligible for benefits (Bailey v. Sullivan, No. 1:94-cv-00089-SEB-JMS – S.D. Ind.). Each of these cases was resolved through a favorable settlement agreement or consent decree.
Finally, Title IV-E of the Social Security Act, among other things, requires participating states to cover certain costs for children in foster care and to provide payments on behalf of adoptive children with special needs. In C.H. v. Payne, 683 F. Supp. 2d 865 (S.D. Ind. 2010), our office represented several classes of foster children and adoptive children with special needs, and their parents, in an action to challenge Indiana’s reduction in the payments made on behalf of children to a level insufficient to meet their most basic needs. A private law firm representing the Indiana Association of Residential Child Care Agencies, Inc. filed a similar lawsuit (which was consolidated with the C.H. case) addressing payments to certain providers. After hearing evidence, the district court issued a preliminary injunction against the payment reductions on the same day as the hearing and memorialized its conclusions in a written decision less than a week later.
* * *
The cases that I have identified represent a partial list of actions alleging violations of spending-clause legislation brought by a single law office. Frequently on behalf of persons in dire need, other attorneys have initiated countless similar cases both in Indiana and across the nation. As indicated, I cannot predict how the Supreme Court will ultimately resolve Talevski. However, any holding that spending-clause legislation may not be enforced through § 1983 would undoubtedly jeopardize the ability to bring similar cases in the future.
