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It Isn’t Just The Bar Exam…

The New Republic recently printed an essay devoted to one of the many, many less tragic but nonetheless unfortunate consequences of the decisions issued this term by our rogue Supreme Court–the fact that the Court has upended the lives of students studying for the bar exam.

I know whereof the author speaks. A couple of weeks before the essay appeared, I had lunch with a good friend and his daughter, who had just graduated from the University of Michigan law school and was studying for the bar exam. She had been an excellent student, but was now stymied about how to answer questions about what she’d been taught were basic principles of American jurisprudence. What should she do in the wake of the Court’s string of radical departures from what she’d been taught was settled law?

Snark that I am, I suggested starting every answer with “Until this year, the law was…” But of course, that assumes the exam consists largely of essay questions.

As the author of the article in the New Republic put it

Picture the scene: It’s the summer after I graduated from law school and a day that ends in y, which means I’m currently hunched over a workbook, attempting to answer practice questions for the multistate bar exam. Such cramming for the bar is a universal rite of passage in the legal field—one that every lawyer in America remembers going through. But right now, law school graduates across the country are experiencing the ordeal a little differently. Because this year, a lot of the laws we are trying so hard to memorize are, as of just a few weeks ago, no longer actually the law.

The author shared a multiple-choice question that has undoubtedly been on several such exams, and then described the dilemma: of the three choices, “B” was correct. At least it should be correct. Except now, not so fast…

Or, well, “B” used to be the right answer. It was the right answer when we graduated from law school at the end of May. It was the right answer through most of June, as we studied the elements of substantive due process—the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference, like the rights to personal autonomy, bodily integrity, self-dignity, and self-determination. For decades, these interests formed the outline of a constitutionally protected right to privacy, whose framework we’ve spent the summer copying onto flashcards and trying to recount in practice essays.

But this substantive due process right to privacy was just dealt a body blow by the Supreme Court’s ruling in Dobbs v. Jackson that the U.S. Constitution does not confer a right to abortion.

After enumerating several of this session’s other dramatic “U turns” to constitutional jurisprudence, he writes:

And the hits keep on coming: Next there’s a question on the “case or controversy” requirement laid out under Article III of the Constitution, stipulating that federal courts only have the power to resolve legal questions arising out of an actual dispute between real parties. That’s been a basic principle of judicial review since 1793, and yet I know that the multiple-choice option I mark for correctly stating this rule completely contradicts the Supreme Court’s disastrous climate decision in West Virginia v. EPA—a case over an environmental regulation that never took effect, no longer exists, and never created any real dispute between actual parties. Then I drop my pencil and put my head in my hands….

In order to practice law, every newly licensed attorney in the year 2022 has to take an exam testing their grasp of legal principles that are no longer legal and laws that are no longer the law. That an unelected panel of ideological extremists could change so many critically important pieces of America’s legal architecture overnight—radically remaking our laws on abortion, separation of church and state, climate change, the rights of criminal defendants, Native American sovereignty, gun control, the capacity of the administrative state to keep us safe, and more—all with zero input from or accountability to the American people, demonstrates how completely unmoored this court is from the principles of democratic governance.

It isn’t only students cramming for the Bar Exam who find themselves suddenly adrift. Pretty much every lawyer I know is gobsmacked..

Me too. I recently collaborated with Women4Change Indiana on a series of civic education videos meant to explain the operation of the U.S. Bill of Rights. The Court’s ahistorical and deeply dishonest departures from what I knew as settled legal principles has made several of those videos inaccurate.

I encourage you to click through and read this very poignant essay--and the author’s very pointed criticisms of the judicial extremists who are decimating the rule of law.

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The Problem With A Two-Party System

What do you do in a 2-party system when one party goes off the rails?

Americans tend to view European multi-party systems with incomprehension, if not disdain; how do the representatives of different parties form coalitions to support particular policies? Isn’t the electoral competition of multiple parties an invitation to chaos? We Americans prefer our Manichean dualism, the “either/or” of “right or wrong” (or actually, the tribalism of “us versus them.”)

It’s time to recognize that two-party systems have considerable downsides, too. 

In reality, our two major parties have always been collections of not-necessarily-consistent factions. They haven’t always been really big tents, but each party has historically encompassed a variety of philosophies. When I was much younger, the complaint was that the tents were too commodious–that having to choose between Republican and Democrat didn’t really provide the voter with a way to declare a clear policy preference, the way a Brit voter for the Green Party could, for example.

As the GOP has become far, far more monolithic, we can see the downside of that once-desired clarity. For one thing, there’s currently no political home for sane, principled conservatives, many of whom are appalled by what has become of a once-traditional party. (Remember when many Republicans were “fiscal conservatives and social liberals”?) 

To the extent that some of those homeless conservatives have reluctantly become Democrats, the Democratic Party faces a huge challenge.

Democrats have always had a bigger tent than Republicans, and have accordingly  had trouble enforcing anything that looks like party discipline. (What was that old saying? I don’t belong to an organized political party–I’m a Democrat.) With the addition of disaffected former Republicans, Democratic strategists find themselves  trying to herd cats–trying to achieve something approaching consensus among legislators and voters who come from very different places on the political spectrum.

It’s one thing to note that the devolution of the GOP into a conspiracist cult is a huge headache for the Democrats. A much bigger worry is what that devolution means for American democracy. As Jennifer Rubin has written,

A new survey from Bright Line Watch, an organization that monitors democratic practices, provides some interesting insights but little solace about Republicans’ commitment to democracy. They might say they support democratic principles (e.g., “All adult citizens enjoy the same legal and political rights”), but they fail to embrace the most fundamental democratic principle: acceptance of election results and the peaceful transfer of power.

The most basic disconnect from reality (and democratic values) remains the 2020 presidential winner. The survey reports, “94% of Democrats say [President] Biden is the rightful winner compared to just 26% of Republicans — a split that has also remained remarkably stable since Biden took office.” As a result, only 42 percent of Republicans have confidence in the outcome of elections compared to 80 percent of Democrats. That raises a question that was so prominent throughout the Senate runoffs in Georgia: Why vote if you think the whole thing is rigged?

Rubin notes that political scientists “are especially alarmed” by the number of  GOP candidates who do not accept the results of the 2020 election–not just those running for Congress, but at least 10 GOP candidates for secretary of state in five battleground states. Putting partisans who endorse Trump’s “Big Lie”  in charge of administering elections  poses a huge threat to election integrity from within.

The transformation of one major party into an illiberal, authoritarian movement is the greatest threat to democracy we face. It manifests itself in the “anti-fraud” measures (when there is no fraud) to restrict access to the ballot and to put partisans in charge of election administration; in the GOP’s decision to rally around House members who spout virulent racism and depict violence against Democrats; and in the real potential that the John Eastman memo becomes the 2024 post-election game plan for Republicans.

Unless and until all 50 Democratic senators realize that “bipartisanship” on voting and democracy reforms is impossible with a party infected with anti-democratic impulses, they will fail to install the guardrails needed to protect the country from these authoritarian forces.

In multi-party systems, members of a Green Party can find common ground with legislators from a Labor Party or a Conservative party on a number of issues. In today’s U.S.,  however,”bipartisanship” requires lawmakers who are trying  to enact reasonable policies to work with people who are steeped in racist conspiracy theories and are clearly untethered to reality.

Research confirms that there are many more sane voters than the Trumpers who control today’s GOP, but they need to vote and those votes need to be accurately counted. When the Whigs disappeared, they hadn’t gerrymandered themselves into positions of power disproportionate to their numbers. Today’s Republicans have.

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Note: like most of you, I am watching–with fear and disbelief–the Russian assault on Ukraine. I have no foreign policy expertise, and there are numerous sources of genuinely informed news available, so I don’t intend (at this point, at least) to post about it. That said, I will make two observations: first, President Biden has spent much of  his career immersed in foreign policy, and I have confidence in his leadership at this very perilous moment; second, the Trump party’s reflexive support for Putin isn’t simply on the wrong side of history, it is reminiscent of the Americans who sided with Hitler and the Nazis at the outset of WWII.

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A Damning Critique

When a noted Constitutional scholar and a retired federal judge jointly issue a damning critique of the current Supreme Court, the particulars of that criticism are worth considering.

Lawrence Tribe and Nancy Gertner have co-authored such an essay for the Washington Post.

Tribe, as Americans who follow such matters know, is a highly respected constitutional scholar who taught at Harvard; Gertner is a retired federal judge. Both served on Biden’s Commission charged with reviewing the operations of the Supreme Court , and both now endorse the (longstanding) scholarship advocating the addition of Justices. Interestingly, they write that they entered the Commission’s deliberations with different preferences for addressing the Court’s declining legitimacy–initially, both had favored term limits but not expansion.

They changed their minds.

After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

In their essay, they explained that their vote in favor of the final report did not signal  agreement with all of it, but approval of the process, which they note accurately reflected the complexity of the issue and the diversity of views.

There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates.

In two paragraphs that sum up not just the opinions of these two experts, but–sadly–the all-too-obvious reality of where we find ourselves today, they accurately pinpoint the defects of today’s Court and the impact of those defects on efforts to remedy America’s ills.

But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.

The essay accuses today’s Court of operating to entrench the power of one political party  by upholding measures to constrict the vote and deny ballot access to people of color and other minorities, and by “allowing legislative district lines to be drawn that exacerbate demographic differences”–i.e., refusing to hold gerrymandering unconstitutional.  And they note that, absent intervention, a Supreme Court that “has been effectively packed”  “will remain packed into the indefinite future, with serious consequences to our democracy.”

This is a uniquely perilous moment that demands a unique response.

The concluding paragraphs are worth pondering and– if the political will can be mustered (a critical unknown)–acted upon.

Though fellow commissioners and others have voiced concern about the impact that a report implicitly criticizing the Supreme Court might have on judicial independence and thus judicial legitimacy, we do not share that concern. Far worse are the dangers that flow from ignoring the court’s real problems — of pretending conditions have not changed; of insisting improper efforts to manipulate the court’s membership have not taken place; of looking the other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.

Put simply: Judicial independence is necessary for judicial legitimacy but not sufficient. And judicial independence does not mean judicial impunity, the illusion of neutrality in the face of oppression, or a surface appearance of fairness that barely conceals the ugly reality of partisan manipulation.

Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.

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A Thought-Provoking Conference

On November 6th, Women4ChangeIndiana held a conference, via Zoom, on “Resilience” and the status of women in the Hoosier State. The various presentations, all of which were excellent, went from 9:00 a.m. to 2:00 p.m., and featured a number of accomplished professional women who addressed the various challenges that face women in Indiana: the diminution of our voices via Indiana’s extreme gerrymandering, the psychological strains of the pandemic, current efforts to improve inclusion and diversity, and the distressing lack of progress in improving the economic status of women in Indiana, among other issues.

I really encourage anyone who cares about policies that affect women in our state to click through and watch some or all of those presentations, (enter password sow21) and Charlie Richardson’s tribute to Indiiana’s icon, Marge O’Laughlin, but today I want to explore the broader implications of a remark made by one of the presenters. Shruti Rana is the Assistant Dean for Curricular and Undergraduate Affairs and Professor of International Law at I.U.’s Hamilton Lugar School in Bloomington.

During her presentation, Rana pointed out that many of the more intractable problems Hoosier women face are the result of policies requiring them to find individual solutions to what are really public problems.

Think about that for a minute, because that observation–and the barrier it represents– is true for all Americans, not just women. It is another way of describing the consequences of our ongoing disagreements over the proper role of government.

What constitutes a “public problem”? Why is a correct characterization important?

Americans valorize “personal responsibility,” and for good reason; the assumption of responsibility for our own behaviors, the “ownership” of our own mistakes, is an important part of mature adulthood (and evidently in short supply–but that is an observation for another day…). However, it is also important to recognize that there are elements of our lives that the assumption of personal responsibility can neither control nor affect to any meaningful degree.

If the electricity goes out, I suppose you could fault people who hadn’t equipped themselves with personal generators, but most of us would recognize the unfairness of  such an accusation. Victims of gun violence aren’t responsible for America’s persistent lack of firearms regulation. In the midst of a deep recession or depression, even Republicans recognize that joblessness isn’t due to laziness or lack of ambition. Most of us would bristle at the accusation that we bear any personal responsibility for the rise of QAnon and similar lunacies.

In other words, there is a difference between problems we can solve individually, by dint of hard work and the exercise of personal responsibility, and problems that require a collective response.

In the wake of the pandemic, for example, a significant number of women who want to re-enter the workforce cannot find childcare. The absence of affordable, safe places to care for their children is not, I would submit, an “individual” problem–it’s a social problem that most developed countries have recognized as such.

Rana’s remark led me to an “aha” moment–an epiphany.

I have been depressed lately–a depression shared with a number of my friends and relatives–not because of anything going on in my own life, which is admittedly a privileged one. Along with so many other Americans, I am depressed by the news, by the constant spotlight on the nation’s dysfunctions. Rana’s comment illuminated the main reason for that depression: the feelings of  helplessness and powerlessness that are a consequence of  Americans’ tendency to categorize public problems as individual ones.

It isn’t that individuals can’t do anything: we can vote (but then, gerrymandering and vote suppression…); we can organize; we can lobby our elected officials. I can educate myself by reading broadly, and I can–and do–pontificate on this blog. But most of the problems we face are not individual problems, and the exercise of personal responsibility can only take us so far.

Clearly, not far enough.

One message came loud and clear through all of the conference presentations: Unless Congress passes the voting rights act, and allows the democratic process to proceed fairly, elected officials will continue to ignore the will of the voters–and efforts to collectively address problems that are clearly public will go nowhere.

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Moving…

No post this morning. My husband and I just moved and our new digs are a disaster. It took me a day just to find the soap!

The only things that AREN’T moving are my muscles. Old women get sore schlepping heavy objects.

Back tomorrow.

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