Category Archives: Constitution

A Partisan Supreme Court

Now that we know a bit more about the Federalist Society’s nominee, I guess it’s time to talk about the Supreme Court.

In no particular order, and for what they are worth, here are some observations about the Court, the process and this nominee.

The Supreme Court was not intended to be a “democratic” (small d) entity; quite the contrary. The judicial branch is supposed to be a nonpartisan constraint on majoritarian passions when those passions threaten Constitutional principles and the rule of law. That said, its judges are supposed to be broadly representative of the (best of) our citizenry.  This nominee is the choice of a President who lost the popular vote by a margin of nearly three million, and whose approval ratings have rarely exceeded 40%; if he is confirmed, it will be with the votes of Senators from states with (an arguably unrepresentative) 45% of the population.

As one legal scholar has commented (link unavailable),

I think we’d all agree that the nation has been fairly evenly divided, all things considered, in presidential and congressional elections over the past 50 years. Yet there has been a Republican-appointed majority of the Court for the past 47 years, and that’s likely to continue for at least another 20-30, if not more. It doesn’t much matter what label we use to describe our system, “democracy” or otherwise. The salient point is that it is very possible that for my entire adult life–even if I am fortunate to live to a ripe old age–the Justices will not have been representative of the nation, and will have been systematically skewed in one direction for the entire period.

Over at Balkinization, Mark Graber points to a conflict between this nominee’s actual–highly partisan– jurisprudence and the “cliches” he and Trump use to describe his judicial philosophy:

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

In 2012, Stephen Pearlstein wrote a column about one of Kavanaugh’s decisions, a decision invalidating EPA regulations that had been the subject of exhaustive research, numerous hearings, and years of negotiations with industry and environmental groups. (I strongly encourage you to click through and read the whole column.) Reading Kavanaugh’s decision, Pearlstein says

You’d have no idea that, in earlier decisions, the same court had found it a reasonable formula resulting in reasonable compliance costs, but sent an earlier version back to be reworked because it didn’t make the air clean enough.

Instead, what you get is 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.

You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts.

You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.

In other words, an arrogant and activist judge ruling on the basis of his personal political ideology.

Kavanaugh’s approach to gun laws also follows partisan predilections justified as respect for history and tradition. Because “semiautomatic rifles have not traditionally been banned and are in common use,” he has written,” they are protected under the Second Amendment.”

What happened to that professed commitment to common sense?

Perhaps the most comprehensive descriptions of Kavanaugh’s record–and reasons to oppose his elevation to the Court– are contained in a letter signed by hundreds of alumni of Yale and its law school. I strongly encourage reading that letter in its entirety, because it details numerous specific positions the judge has embraced (including his opposition to mandating coverage of pre-existing conditions by health insurance companies, and a truly bizarre opinion that Net Neutrality rules run afoul of the First Amendment). As the letter argues:

Support for Judge Kavanaugh is not apolitical. It is a political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people. Without a doubt, Judge Kavanaugh is a threat to the most vulnerable.

Much of the opposition to this appointment centers on Kavanaugh’s likely approach to Roe v. Wade. But Roe–which has already been “nibbled” to death in many states–is just the tip of a very large iceberg. Kavanaugh has consistently elevated religious doctrine over personal autonomy, and has disputed the existence of a wall of separation between church and state.

In the age of Trump, however, a position taken by Kavanaugh that I find even more chilling is his current view that Presidents should be above the law, at least while in office. As the Yale alumni wrote,

Judge Kavanaugh would also act as a rubber stamp for President Trump’s fraud and abuse. Despite working with independent counsel Ken Starr to prosecute Bill Clinton, Judge Kavanaugh has since called upon Congress to exempt sitting presidents from civil suits, criminal investigations, and criminal prosecutions. He has also noted that “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” This reversal does not reflect high-minded consideration but rather naked partisanship. At a time when the President and his associates are under investigation for various serious crimes, including colluding with the Russian government and obstructing justice, Judge Kavanaugh’s extreme deference to the Executive poses a direct threat to our democracy.

Does Judge Kavanaugh have the credentials and intellect to serve on the Court? Certainly.

Does he have the intellectual humility and “spirit of liberty” that Learned Hand once defined as “the spirit which is not too sure that it is right… the spirit which seeks to understand the minds of other men and women… the spirit which weighs their interest alongside its own without bias”?

Not even close.

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ERA Redux?

A recent editorial in the New York Times suggests that the time for passage of the Equal Rights Amendment–long comatose (actually, I thought it was dead)–may finally be at hand.

The editorial begins with a recognition of the Trump Administration’s negative consequences, especially for women:

Having a sexist in the Oval Office who curries favor with conservative religious groups is having dire consequences. Health workers in developing nations are preparing for a rise in unsafe abortions due to President Trump’s reinstatement of the global gag rulethat prohibits federal funding of groups that provide abortion services or referrals. Here at home, his administration has been hostilenot only to abortion access, but even to birth control.

A full list of the “Trump Effect” would be much longer, of course; it is a mistake to put “women’s issues” in some sort of separate category limited to matters of reproduction and discrimination. Women’s issues are human issues, and vice-versa–the damage this administration is doing to policies ranging from the environment to poverty to international relations affects all genders, just as family planning and child care policies affect men as well as women.

That said, the daily assaults have generated a monumental resistance.

Rage at the election of a man who boasted about grabbing women’s genitals helped set off the #MeToo movement’s reckoning with sexual misconduct. A record number of women are running for office around the country, many of them announcing their candidacies after participating in women’s marches the day after Mr. Trump’s inauguration.

And now, on Mr. Trump’s watch, feminists could reach a goal nearly a century in the making, and that many assumed would never come to pass — ratification of the Equal Rights Amendment to the Constitution. It states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

What prompts this possibility?  Evidently, the Illinois State Senate recently passed a bill to ratify the E.R.A.  If the Illinois House passes the same legislation (supporters are cautiously optimistic) — then Illinois will become the 37th state to ratify the amendment.

Just one additional state would be needed, and the long-languishing amendment would become part of the Constitution. Maybe.

Thirty-five states had signed on by 1977, ahead of the 1982 deadline established by Congress. Extensive–one might say hysterical– conservative opposition then arose, preventing further ratification. Virtually nothing happened after that, until Nevada suddenly ratified it last year.

There are some questions about what will happen if a 38th state ratifies the amendment, given that it would miss the deadline Congress set by at least 36 years, and five states have even voted to rescind their ratifications. But E.R.A. supporters and some legal experts make a plausible case that the amendment should still be recognized, pointing to, among other things, the 27th Amendment, on congressional pay, which was ratified more than 200 years after its passage by Congress, although no deadline had been set.

If the ERA were to be ratified, I’m not sure what it would do. As the editorial notes, there is a substantial body of 14th Amendment jurisprudence that protects the equal rights of women.

The fight against the E.R.A. is being led by groups on the religious right like the Illinois Family Institute, using arguments that are the ideological heirs of those so vociferously expressed by Phyllis Schlafly, whose group Stop E.R.A. — the first word standing for “Stop Taking Our Privileges” — which became the Eagle Forum, prevented the E.R.A.’s ratification at the time.

Those arguments include fearmongering about how coed locker rooms could become standard and alimony for women outlawed — arguments that are hard to take seriously but that nonetheless helped Mrs. Schlafly to very effectively convince Americans, including many women, that the E.R.A. was bad news. (Mrs. Schlafly, who died in 2016, would no doubt be appalled that her home state, Illinois, could now play such a pivotal role in ratification.)

Another conservative talking point is that the E.R.A. would lead to abortion restrictions being struck down. That outcome is not at all certain, but it would help many women. (For obvious reasons, the anti-E.R.A. crowd already had to slink away from an argument that the amendment would lead to legalizing same-sex marriage.)

Do we still need the ERA? Case law can be overturned; a constitutional amendment cannot–at least, not easily. Ratification would add an extra layer of protection against discrimination for both men and women . Given the appalling people that are being placed on the federal bench by Trump and the GOP, that’s no small matter. And of course, as the editorial pointed out, “This could become especially important if Mr. Trump gets to pick additional conservative Supreme Court justices.”

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Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.

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Polluting The Judiciary

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.” In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.

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Us Versus Them: Shithole Edition

When reports of Donald Trump’s “shithole countries” remark hit the media, various  outlets  reported “gasps of disbelief” by Congressional Republicans.

Give me a break. Anyone who is genuinely surprised to discover that Trump is a racist is too stupid to tie his own shoes.

David Leonhardt ticked off  the evidence in his column yesterday for the New York Times:

• Trump’s real-estate company was sued twice by the federal government in the 1970s for discouraging the renting of apartments to African-Americans and preferring white tenants, such as “Jews and executives.”

• In 1989, Trump took out ads in New York newspapers urging the death penalty for five black and Latino teenagers accused of raping a white woman in Central Park; he continued to argue that they were guilty as late as October 2016, more than 10 years after DNA evidence had exonerated them.

• He spent years claiming that the nation’s first black president was born not in the United States but in Africa, an outright lie that Trump still has not acknowledged as such.

• He began his 2016 presidential campaign by disparaging Mexican immigrants as criminals and “rapists.”

• He has retweeted white nationalists without apology.

• He frequently criticizes prominent African-Americans for being unpatriotic, ungrateful and disrespectful.

• He called some of those who marched alongside white supremacists in Charlottesville last August “very fine people.”

• He is quick to highlight crimes committed by dark-skinned people, sometimes exaggerating or lying about it (such as a claim about growing crime from “radical Islamic terror” in Britain). He is very slow to decry hate crimes committed against dark-skinned people (such as the murder of an Indian man in Kansas last year).

Although pundits have previously noted Trump’s racist, barely-veiled “dog whistles” to white nationalists, they have been far more reluctant to say out loud what political scientists (and most sentient beings) have concluded from data about the 2016 electorate: a solid majority of Trump voters were motivated by racial animus.  Racism “trumped” (excuse the pun) recognition of Trump’s ignorance, grandiosity and utter unfitness for office; for those voters, identity politics–aka white nationalism with a side of misogyny– won the day.

Which brings me to the unpleasant but unavoidable subject of “us versus them.”

Scholars who study the history of human interaction tell us that tribalism is hard-wired into the human psyche. There are evolutionary reasons for that, and the consequences aren’t all negative by any means. Our attachments to our families, our “clans” and our countries can promote solidarity, sacrifice and reciprocity.

The problem is the way far too many Americans define “us.”

I know I get tiresome with my constant harping on the need for improved civic literacy and constitutional knowledge, but the reason I believe it is so important that Americans understand our history and philosophy and constituent documents is because allegiance to America’s foundational values is what makes people Americans. It is what creates an overarching “us” out of an assortment of diverse and otherwise unconnected “thems.”

Republicans used to understand that. It was Ronald Reagan who said

You can go to Japan to live, but you cannot become Japanese. You can go to France to live and not become a Frenchman. You can go to live in Germany or Turkey, and you won’t become a German or a Turk.’ But anybody from any corner of the world can come to America to live and become an American.

Donald Trump explicitly appeals to people who don’t understand that, people who have a very narrow definition of “us”– people who define their own identities by the color of their skin, their sexual orientation or religion. They are incapable of seeing people who don’t look just like the image they see in their imaginary mirrors as members of their tribe, as part of “us.”

Fear and ignorance keep them from understanding who “we” really are.

The good news is that we don’t have to fight our hard-wired impulse to see the world in terms of “us” and “them.” We just have to work toward a better, more accurate, more capacious definition of “us” — a definition that includes all Americans, no matter what color, religion, sexuality, gender or other “tribe.”

One we get that right, we can work on defining “us” as humanity….

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