Tag Archives: Supreme Court

Complicated–And Consequential

The virtue of America’s current battle over a woman’s right to control her own body is its clarity. Either a woman has the right to determine whether she will give birth, or the government has the right to force her to do so, irrespective of the consequences for her health and well-being.

It’s either/or. 

Other threats we face are much more subtle and complicated. Policy changes that may seem innocuous or even reasonable on the surface have the potential to undermine rules that demonstrably serve the common good. An example is the passage this year of bills in Indiana, Nebraska, and Idaho that propose to end “judicial deference.”  Judicial deference is a doctrine that requires federal or state courts to “defer” to administrative agencies’ interpretations of agency statutes and regulations. Instead, those bills require courts to apply de novo review — to examine executive agency actions without bothering to give weight to that agency’s interpretation of the statute or regulation in question.

The bills were based on model legislation: the Judicial Deference Reform Act, developed by The Goldwater Institute and the Pacific Legal Foundation. Those bills might not have been necessary, though–our radical, rogue Supreme Court, unconstrained by precedent, appears ready to junk that doctrine, called The Chevron doctrine after the long-ago footnote that established it. 

Why should we care about this arcane bit of jurisprudence? As one recent analysis explained, overturning the Chevron doctrine would allow individual judges to implement their partisan policy preferences instead of abiding by agency expertise.

Under Chevron deference, courts have been obligated for the past half-century to defer to career expert civil servants in agencies who created rules based on their statutory authority when the statutes were ambiguous or silent, as to highly specific and technical areas of regulation. Chevron deference has been used in more than 19,000 cases and is the basis on which Congress has enacted broadly worded statutes granting agencies regulatory authority for the past 40 years. Now, the Supreme Court is poised to throw the baby out with the bathwater by overturning the very authority it directed Congress and federal agencies to operate under….

The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal courts more power to implement their policy preferences and ignore agency expertise. As Justice Elena Kagan aptly pointed out, Chevron replaced Skidmore because “judges [were] becoming too partisan in interpreting regulations,” which “dampens that kind of ideological division between courts.” She also reasoned that “Skidmore is not a doctrine of [judicial] humility.” Meanwhile, Justice Ketanji Brown Jackson emphasized that Chevron allows Congress to delegate policy choices to executive agencies and voiced concerns that “if we take away something like Chevron, the court will then suddenly become a policymaker.”

As the linked article notes, the conservative legal movement’s long effort to use the legal system to serve the interests of  corporate behemoths at the expense of sound policy and the broader interests of the American public seems increasingly likely to succeed.

The doctrine requires “deference”–not submission. If evidence produced at trial shows that an agency’s interpretation of a rule is unreasonable, the courts can and should overturn that interpretation. But discarding the requirement that courts should defer--not “buckle under”–is yet another blow to respect for knowledge and expertise. 

Executive branch agencies increasingly deal with matters requiring considerable subject-matter knowledge. Officials of the EPA are highly likely to know more about unsafe levels of arsenic in drinking water than a judge presiding over a case brought by a company that has been fined for exceeding that level in its discharge into a local river. Officials at the FDA have met professional standards for evaluating the safety of food and/or the efficacy of drugs. Recently, we’ve been reminded of the importance of informed FAA oversight of aircraft manufacturers like Boeing. The growing complexities of modern life–in technology, in medical science, in product safety–requires acknowledging the importance of specialized expertise.

The courts have operated under Chevron deference since 1984. That deference has not kept them from invalidating unreasonable or overbroad interpretations of statutes and regulations. It has, however, required judges (who come to the bench with a very different kind of expertise) to listen carefully to the reasons agency personnel interpret a given rule in the way that they do.

Most Americans have never heard of Chevron; in Indiana, Nebraska and Idaho, most citizens are blissfully unaware of the passage of laws discarding the doctrine.

The threat posed by overruling the doctrine is far less obvious than the threat to women’s autonomy–but that doesn’t mean this assault on expert knowledge isn’t significant.

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And Then There’s The Court…

Equal Justice Under Law. That motto is both aspirational and descriptive; in four words, it summarizes the whole point of the rule of law–the founding premise of America’s Constitution and Bill of Rights. Well-paid lobbyists may influence legislation to give Group A an advantage over Group B, elected officials may listen more carefully to people who wrote big checks to their campaigns, but citizens are supposed to be able to appeal for justice to the nation’s courts, and those courts are supposed to  administer equal justice under the law.

Granted, it has never worked that seamlessly. Judges are human, with human biases and foibles. Laws are often opaque. Access to the nation’s courts requires resources–either substantial funds or representation by one of the country’s public interest law firms, like the ACLU or Lambda Legal. But for a long time, America’s courts–especially its federal courts–have been there to redress inequality and corruption and instances of fundamental unfairness.

Now, thanks in large part to Mitch McConnell and Donald Trump, the Supreme Court itself has been corrupted. Any doubts on that score were laid to rest during the Court’s eye-opening and frequently chilling hearing on Trump’s ridiculous “immunity” claims. Those claims had been summarily and properly dismissed by the lower courts, and I fully expected the Supreme Court to follow suit. After all, the Court’s unnecessary delay in addressing the claim had given Trump what most observers knew he really wanted: a delay. The appeal was a transparent effort to postpone Jack Smith’s case until after the election, and most of us who were following the case expected the Court–having given him that delay– would rule on the merits by affirming that no one is above the law.

I will leave further discussion and analysis of that oral argument to the multitude of observers who found it appalling, because I want to address other aspects of the high court’s corruption that are relevant to the widespread loss of respect for that body and to the growing calls to expand its membership.

Over the past few years, Americans have learned about the truly gob-smacking conflicts of interest, money-grubbing and pious dishonesty of Clarence Thomas and Samuel Alito. The head of the Alliance for Justice pulled no punches:

Today, our republic is buckling under the weight of those misdeeds, as Americans no longer trust their Supreme Court to be a citadel of democracy and justice. Quite the opposite — they have come to expect the worst from our pay-for-performance judiciary. Are we really going to stand idly by and do nothing about this corruption?”

A recent article from The Intercept pointed to a lesser-known but no less troubling influence of money on the Court. The article focused on a case challenging two states’ efforts to limit social media moderation of user-posted content (which Texas Attorney General Ken Paxton equated to “censorship) then turned to the broader issue of influence.

After the Supreme Court wraps up arguments for the current term next week, it will turn to finalizing decisions in dozens of pending matters, including these social media cases plus high-stakes cases about abortion, guns, the limits of presidential immunity, and how the federal regulatory apparatus itself functions. In doing so, the justices will have a chance to review hundreds of amicus briefs.

Like the money spent on elections, the money spent on the deluge of amicus briefs each term is incredibly difficult to track. The Supreme Court’s disclosure rule for amicus briefs is quite narrow, requiring only a footnote that indicates whether there were any outside monetary contributions “intended to fund the preparation or submission” of that specific brief.

The article quoted Sarah Lipton-Lubet, president of Take Back the Court,

“It’s no secret that the many of the rich benefactors cozying up to the conservative justices are the same people who fund right-wing organizations with business before the court. But too often, stories about the Supreme Court don’t connect these dots — and as a result, they leave us with an incomplete picture.”

A reform bill authored by Senator Sheldon Whitehouse–described in the Intercept article– would be a good first step, but it is past time to consider enlarging the Court and imposing 18-year term limits on Justices, among other measures that are being considered. (When lifetime tenure was established, people didn’t live as long as they do today. Eighteen years is sufficient to accomplish the goal of lifetime terms, which was to insulate the Justices from political pressure.)

The Court has never been the unblemished guardian of liberty that we like to think, but its current, shameful partisanship and outright corruption are a new low. It’s time for a change.

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Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?
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A No-Win Choice

The Washington Post recently ran a story about the 91-year old Republican woman who is a plaintiff in the Colorado case that removed Donald Trump from that state’s ballot.

In one way, the piece was just one more reminder of how very far today’s GOP is from the political party it used to be. The woman being profiled, Norma Anderson, was described as a trailblazing former GOP legislator, and she joins people like Liz Cheney and other “Never Trumpers” in reminding us that what is on display these days is a very far cry from both conservatism and what the Grand Old Party used to be.

But that article is only one commentary on a critically-important and unprecedented issue: should Trump be barred from the ballot under the very clear language of Section 3 of the 14th Amendment?

That Section reads as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Guardian was among several media outlets that have reported on an amicus brief filed with the Supreme Court by some of this nation’s most eminent historians. Twenty-five historians of the civil war and Reconstruction argued in support of the Colorado decision to remove Trump from the ballot.

“For historians,” the group wrote, “contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th amendment [ratified in 1868] is most probative. Analysis of this evidence demonstrates that decision-makers crafted section three to cover the president and to create an enduring check on insurrection, requiring no additional action from Congress.”

Sean Wilentz of Princeton is a well-regarded historian who did not participate in the Supreme Court brief, but he too has dismissed arguments for allowing Trump to remain on the ballot.

“By their reasoning,” Wilentz writes, “Trump’s misdeeds aside, enforcement of the 14th amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.”…

 “Whether motivated by … fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, [commentators who say Trump should stay on the ballot] betray a basic ignorance of the relevant history and thus a misconception of what the 14th amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.”

No kidding. And they’re ducking and weaving…

“Textualists” and “original intent” devotees on the Court are faced with unambiguous language buttressed by reams of contemporaneous evidence submitted by the historians. The hearing Thursday telegraphed the Court’s reluctance to give the Fourteenth Amendment language its obviously intended effect. The decision is likely to be another nail in the coffin of this Court’s eroding legitimacy.

It’s true that a decision following the clear Constitutional language would run the risk of unleashing a violent reaction from the populists and neo-Nazis who support Trump.  Recognition of that probability has led some pundits to argue that the Court should punt–that it should “save democracy” by leaving Trump’s fate to the tender mercies of the voting public.

I understand that desire, which the Court clearly shares.

I truly believe that the likely match-up between Biden and Trump will result in a massive repudiation of Trump and his cult–that Trump’s intensifying and increasingly obvious mental decline, on top of his ignorance, narcissism and generally repulsive persona will lead to a massive rejection of the GOP at the polls. (Discount the polling averages that seem to show Trump even with or defeating Biden; as several scholars have noted, those averages include a large number of low-quality, partisan polls with which GOP propagandists have “flooded the zone.”)

It would be far more satisfying to defeat Trump at the polls, but America is facing a crucial test of our commitment to the rule of law. Are we, as John Adams famously proclaimed, a “nation of laws, not men”? Or are we a nation of scofflaws, ready to abandon rules when we find them inconvenient or unpopular?

The Court appears ready to place us among the scofflaws.

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How Has It Come To This?

I’ve posted a lot about electoral structures that are currently enabling a distinct minority of Americans to govern the rest of us. One of those systematic distortions–gerrymandering–has been enabled by a judiciary unwilling to say what we all can see: that the practice is contrary to “one person, one vote” and thus the Constitution.

What’s relatively new is the willingness of the GOP to publicly defend its attacks on democracy.

In Wisconsin, Republicans have benefitted from a combination of extreme gerrymandering and the political complicity of a state Supreme Court dominated by Rightwing judges. A liberal judge just won a seat on that body (by a surprisingly large margin in a state where close elections have been the norm), and Republicans threatened to impeach her–before she can participate in a single case.

As an essay in the Guardian explains:

In 2011, Republicans gerrymandered Wisconsin’s state legislature so badly that the party can win supermajorities despite losing the popular vote, as it did in 2018. Voters have fought back, and earlier this year they elected Janet Protasiewicz to the state supreme court, ushering in a new liberal majority which looked poised to finally overturn the gerrymander and bring democratic regime change to Madison.

But Wisconsin Republicans have no intention of seeing their undeserved power slip away. They’re proposing to impeach Protasiewicz on spurious charges before she has ruled on a single case, paralyzing the court and leaving the gerrymander intact.

When Trump argued that he was the real winner of the election because the votes of people living in Democratic-leaning urban areas were somehow fraudulent and should not count, he was repeating arguments that Wisconsin Republicans had already honed. The speaker of the state assembly, Robin Vos, has explained that the state’s gerrymander is fair because “if you took Madison and Milwaukee out of the state election formula, we would have a clear majority”. Because Madison and Milwaukee are the parts of the state with the largest concentration of non-white voters, Vos has revealed what the Wisconsin gerrymander is really about: race.

No surprise there. The urban/rural divide isn’t just about racism, but rural racial grievance explains a lot.

Per Talking Points Memo, the election of a liberal judge to the state’s high court infuriated the beneficiaries of Wisconsin’s undemocratic gerrymandering.

For months, Republicans have been plotting how best to overturn her election, as two redistricting lawsuits were immediately filed at the state’s high court. In recent weeks, they’ve been coalescing around impeaching her, settling on the rationale that she called the state’s maps “rigged.” Notably, state Republicans have not brought the same ire to Justices Rebecca Bradley and Brian Hagedorn continuing to preside over abortion cases after likening abortion to the Holocaust and calling Planned Parenthood a “wicked organization,” respectively. 

The GOP is threatening to impeach both Protasiewicz, the judge, and Evers, the Democratic governor (since you can’t gerrymander statewide elections, voters were able to elect a liberal justice and a Democratic Governor). “The threat of actual democracy has convulsed the state government, while state Democrats express their outrage from their manufactured permanent minority.”

The use of skewed election systems to suppress the voices of minority voters is not new to the U.S. Wisconsin is only a blatant example.

Like their predecessors in other states, Wisconsin Republicans have been remarkably frank about their intention of ensuring that minorities stay in their place. When Democratic gubernatorial candidate Tony Evers powered to victory in 2018 with massive wins in Madison and Milwaukee, the Republican legislature used a lame-duck session to strip him of much of his power. Not content with that, Evers’ Republican opponent in 2022, Tim Michels, promised that if he was elected then Republicans in Wisconsin “will never lose another election”.

Give him credit for transparency…

Republicans aren’t even pretending any more. It’s not just Wisconsin–but what happens in Wisconsin will be a test case, telling us whether these increasingly brazen attempts to secure minority rule will succeed.

The author of the Guardian essay–a British historian of the United States–notes that Wisconsin Republicans were among the most fervent backers of Trump’s undemocratic coup attempt, “but they needed no lessons from him in how to suppress the will of the people.” 

The Republican party’s belief in its own god-given right to rule – and that of its white, rural electorate – found its most dangerous expression in Trump’s attempt to overthrow the 2020 election, but it long predated him. It will outlive him unless it is chastened by accountability and defeat at every turn. All eyes are now on Wisconsin and Janet Protasiewicz to see if it will be. 

If the Wisconsin GOP’s shameless abandonment of even a pretense of playing by the rules succeeds, we’re in for a world of hurt.

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