an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Supreme Court’s Role in our Constitutional Scheme: Why Eight is not Enough
Writing in the New York
Times, Professor Barry McDonald argues that the Supreme Court is
better off with just eight Justices, even if that means that the Justices are
unable to decide some of the most important cases that come before them.To justify his proposal to leave the Supreme
Court paralyzed, McDonald claims that, at the Founding, “the judicial branch
was something of an afterthought,” and “judicial review, in the modern sense,
did not exist.”McDonald’s argument is
Our Constitution gives the Supreme
Court—along with the lower federal courts—a critical role to play in ensuring
the enforcement of constitutional rights and maintaining the supremacy of
federal law.Leaving the Supreme Court with only eight members—and unable to
decide some of the most important cases that come before it—threatens the Court’s ability to do its job.
The Constitution’s explicit grant of
judicial power to the federal courts to decide “all Cases, in Law or Equity,
arising under this Constitution, the laws of the United States, and Treaties”
was a direct response to the infirmities of the Articles of Confederation,
which established a single branch of the federal government and no independent
court system.Individuals could not go
to court to enforce their federal legal rights, prompting Alexander Hamilton to
declare that “laws are a dead letter without courts to expound and define their
true meaning.”A central aim of the
Constitution was to ensure that individuals could go to federal courts to
redress violations of the Constitution and other legal wrongs.A dead-locked Supreme Court cannot serve this
When the Framers gathered in Philadelphia
to debate a new national charter, they took pains to ensure that the federal
courts created by the Constitution had broad powers to enforce the Constitution
and federal law.The Supreme Court—the only court created by the Constitution
itself—was designed to be the “keystone
of the arch, the means of connecting and binding the whole together, of
preserving uniformity in all the judicial proceedings of the Union.” The
Court’s core function—to establish a binding rule of the law for the nation—can
hardly be fulfilled when the Supreme Court splits 4-4.
McDonald belittles judicial review; the
Framers, however, did not.During the
debates over the original Constitution and the Bill of Rights, the Framers,
time and again, explained that the courts would serve as a constitutional check
on the elected branches of government.The Framers understood that the Constitution’s limitations on government
“can be preserved in practice no other way than through the courts of justice,
whose duty it must be to declare all acts contrary to the manifest tenor of the
Constitution void.”Judicial review is
hard-wired into the Constitution.McDonald simply ignores the Framers’ justly famous declarations asking
“[t]o what quarter will you look for protection from an infringement of the
Constitution, if you will not give it to the judiciary.There is no other body that can afford such
McDonald complains about 5-4 Supreme Court
decisions, such as last year’s marriage equality ruling, that interpret the
Constitution to invalidate democratically-enacted laws.But, in our system of government, constitutional
rights are not left to the will of the majority.That was understood by the Framers, as it is
today.Courts follow our Framers’s
design when they hold that legislative or popular majorities cannot trample on
the Constitution’s promise of liberty and equality for all.
A deadlocked Supreme Court cannot do its
job.It cannot decide important,
closely-divided cases about the meaning of the Constitution or federal laws,
leaving people in different parts of the country with different rights.The Supreme Court was created by the
Constitution to declare the law of the land.With only eight Justices, the Supreme Court, all too often, cannot do the
job the Framers assigned to it.
David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This post is cross-posted on Text and History.
This essay explains the constitutional basis of Joseph Fishkin and William Forbath's recent call for an “Anti-Oligarchy Constitution” and a “Constitution of Opportunity.” Fishkin and Forbath correctly argue that one cannot separate democracy and political freedom from a nation's political economy. They contend that public officials have a political duty to promote an inclusive and broad-based middle class, because economic independence is crucial to preserve democratic self-government.
These claims are modern-day versions of a very old idea in the American constitutional tradition. This is the requirement of republican government, a basic principle of American constitutionalism that not only undergirds several different parts of the constitutional text but also has deep roots in the ideals of the founding generation.
I describe several key features of republicanism and how a commitment to a republican political economy flows from them. Republican ideals like equal citizenship and opposition to oligarchy and aristocracy remain important and relevant in the twenty-first century, but inevitably they must take new forms. Because of what I have called "ideological drift," opponents of oligarchy and aristocracy in one generation are often co-opted into becoming the defenders of new forms in later years. And because of ideological drift, older versions of anti-oligarchy rhetoric can be captured by new aristocracies and oligarchies to defend and entrench their interests.
As time goes on, corruption finds ever-new ways of entering the political system, weakening the institutions and practices that secure civic equality and representative democracy. The causes of corruption are not simply human frailty and fallenness. They also arise from social, demographic, and technological changes. These alter the meanings and practical effects of older social arrangements, offering ever-new opportunities for attaining and entrenching power. Hence republicanism, if it is to have a coherent and enduring set of political commitments, cannot be identified with a fixed set of social and economic arrangements. Instead, every generation must reconsider the terms of the nation's political economy, and remain vigilant to deal with new threats to self-rule. Posted
by JB [link]
Monday, May 23, 2016
The Example of Stephen A. Douglas
Gerard N. Magliocca
While Donald Trump continues to use the bully pulpit as a pulpit to bully, Mitt Romney is getting pressure to enter the race as a third-party candidate. Conservatives in the "Never Trump" camp are realizing that Romney (despite his flaws) is the only person with the money and connections to mount a serious campaign. I hope he does.
Consider the example of Stephen A. Douglas. Douglas was a scoundrel for much of his career. He defended slavery, and his foolish push for the Kansas-Nebraska Act was in part done to improve his presidential prospects. In 1860 he won the most votes at the Democratic National Convention, but southerners refused to vote for him and the convention broke up without picking anyone. How did Douglas respond? By running for President as a Northern Democrat. He had no hope of winning and essentially handed Lincoln the election by dividing the Democratic vote, but he felt that a southern victory was even worse. Indeed, Douglas felt so strongly about this that he broke with tradition and personally campaigned (often getting heckled in the process). After he lost, he supported Lincoln's policies in the Spring of 1861, but then, sadly, died of a sudden illness.
As readers of my previous posts are well aware, I am extremely critical of Senator Sanders for his abject refusal even to suggest that anyone defining him/herself as a "political revolutionary" might do what, say, Hamilton Madiaon, and Jay did when they denounced the existing constitutional order (of the Articles of Confederation) as "imbecilic" and suggested its replacement by something they saw as far better. His notion of a "political revolution" is remarkably undeveloped, to put it mildly.
His unwillingness to engage in any such analysis is especially noticeable given his ever increasing propensity to whine about the particular rules of the Democratic Party--to which his own loyalty is minimal, incidentally--and the ostensible ways they have hindered his candidacy. As Mark Graber notes in his own excellent post, Sen. Sanders seems to believe that non-Democrats should play a key role in selecting the nominee of the party. There is something to be said for "open primaries," but there is also surely something to be said against them. There is a genuine debate to be had about the extent to which parties should be viewed as membership organizations entitled to make their own choices as to whom they wish to represent them as candidates, subject to limitations on, say, racial discrimination. But Mark is surely correct that there would be something odd if non-Catholics demanded a right to participate in electing the next Pope, and so on. But, obviously, Sanders is not leading a genuinely serious debate, which might require at least a modicum of disinterestedness.
Sanders, alas, has revealed himself as incapable of leading a serious discussion about truly necessary structural reform in this country. I genuinely regret this, as I have admired (and contributed to) Senator Sanders and believed that his candidacy was in fact very good for the country.
Even if Sen. Sanders is from Brooklyn, he is behaving exactly like the Vermont Senator he is, inasmuch as he seems almost totally oblivious to the actual number of voters supporting Secretary Clinton as against himself and prefers to treat all states as equal, so that we are asked to treat his triumph in Wyoming as the equal of her win in Ohio. Only someone unconcerned by the indefensible allocation of voting power in the Senate could possibly believe any such thing.
To answer my own question, I do not believe that the University of Chicago-educated Senator is stupid. Perhaps, though, it's too easy to denounce him simply as a coward. Maybe he remains enough of a classic Marxist so that he views political institutions as merely epiphenomenal relative to what's really important, which is class struggle. But he seems to believe that rules and institutions matter with regard to the Democratic Party. If that's the case, then why can't he accept the fact that the same is even more true at the national level?
If he in fact refuses to get solidly behind Secretary Clinton and help her defeat the fascist and incompetent Donald Trump, then he should roast in hell. But, frankly, I will be only somewhat mollified if he does the right thing re Clinton and Trump, given that he still will have blown the opportunity of a lifetime to initiate a long-overdue discussion of the degree to which our present constitutional order, as designed in 1787, is indeed imbecilic and very much in need of examination and change. Posted
by Sandy Levinson [link]
Will the US survive?
I presume I have your attention with a suitably over-the-top title. That being said, imagine the following altogether realistic situation (because it's the one we're in): The two likely candidates appear to be loathed by most of the opposing party. As I have made clear, I do not think that an honorable person can support the dangerously fascistic and buffoonish Donald Trump, for the same reason that Alexander Hamilton could not support Aaron Burr for the presidency. But, as I've indicated, responses to my op-eds have made clear that many Republicans--and I will assume that many of them are appalled by Donald Trump--feel equally disgusted by Hillary Clinton. I disagree, but that's beside the point, of course.
One of them presumably has to win. So the question is this: Will the losers accept the verdict as legitimate, since, by definition, that will place in the White House someone who is regarded by the opposition as unfit for the office? I certainly would not regard Donald Trump as a legitimate President. I would hope, for example, that Congress would move to impeach him as quickly as possible, for jaywalking if need be. That prospect might depend, of course, on whom he picks as VP--and, incidentally, will the Cleveland convention give him carte blanche to pick the VP? They didn't do that for McCain, who was actually qualified to be president. He clearly wanted Lieberman, and he was told hell no, so instead he took us down the primrose path by choosing the egregious Sarah Palin. So assume, for sake of argument, that Trump is forced to pick someone competent. Why should we allow Donald Trump more than a single day in office, given the amount of mischief he is capable of doing, coupled with his staggering ignorance about almost all issues of pubic policy. I'm assuming that Republicans would feel much the same way about Hillary Clinton.
But, hey, it can get worse. If Donald Trump wins a majority of the electoral vote with a clear majority of the popular vote, then those of us who despise him would at last have to explain why we reject the "people's choice." But assume that he (or that matter Clinton) wins the electoral vote but loses the popular vote. And, of course, assume that one or more of the close states features the kind of election irregularities we have become used to n our basically third-world election system (where partisan officials are in charge of elections or, if not partisan, then they are often simply in over their head with regard to the knowledge of resources needed to run modern elections). And, of course, there are also Republicans who are determined to suppress the vote of any and all likely Democratic voters, including racial and ethnic minorities and students. So imagine that North Carolina turns out to be the decisive state, where thousands of likely Democratic voters have been denied access to the ballot because of the successful attempt by the mad-dog Republicans who now control my home state to maintain their power. (I never miss a chance to quote what I call John Roche's dictum: Power corrupts, and the prospect of losing power corrupts absolutely. That is the modern Republican Party in a nutshell.)
Charles Dunlap wrote a brilliant essay many years ago on the "coming military coup" in 2012, as military officers became more and more disgusted at the degree to which the US itself needed the kind of "nation building" that the military--Dunlap thought unwisely--was increasing being assigned as part of its mission in other countries. So what should we make of the fact that at present the US military is the only national institution that has the solid confidence of most of the American public? Congress is held in what many of us would say is justified contempt. interestingly enough, President Obama now seems to have majority approval, but you may have noticed that he's not running for re-election. Even the Supreme Court now regularly is approved by only a minority of the population.
Our Founders were scarcely cock-eyed optimists about whether the American republic would necessarily sustain itself. It took not only good institutional design--and I, of course, think that the institutions designed for 1787 are grievously dysfunctional in 2016--but also suitably virtuous dispositions on the part of both the citizenry and the leadership class. I have discovered that few seem to share my own faith in the possibility of an American public capable of exercising "reflection and choice" as spelled out in Federalist 1, with regard to a new constitutional convention. And if that's the case, why should we trust the public to exercise relevant reflection and choice when choosing a president? And no one can seriously argue that Donald Trump is a Publican leader; I think that Hillary Clinton does qualify, but the very point of this posting is that most Republicans apparently disagree vehemently with that perception.
So, if it the case that wide swaths of the country will refuse to accept the result of the 2016 election as truly legitimate--think in this context, perhaps, of 1860--then might one imagine the rise of some serious secessionist movements within the US? Why should Pacifica or Cascade remain within a US governed by Donald Trump? Some might wonder if Dixie would wish to remain in a US governed by Hillary Clinton (especially if the respective candidates manage to carry Congress with them).
All of this, of course, may be hysterical musings on the eve of leaving the country for three weeks, to go first to Portugal, then to England, and finally to Israel. Portugal appears to be relatively stable these days, at least in comparison with much of the rest of Europe. But one of the topics to be discussed at a conference in Oxford I'll be attending is the Brexit vote, which threatens to destroy the European project that has been the most beneficial consequences of World War II. And Israel, I'm afraid, drifts more and more to authoritarian rule in part because they are led by a Prime Minister who is little, if any, better than Donald Trump in his basic contempt for liberal constitutionalism and the pluralism necessary to maintain a decent modern society. (If you don't believe me, just track down some of the stories about the resignation this past week of the Likud Defense Minister, who is correctly appalled by the prospect of shifts that Netanyahu wishes to make in his governing coalition.)
Is America really an exception to the possibility of decline, including transformation into a decidedly illiberal authoritarianism of the kind that Andrew Sullivan has recent argued threatens us?
As always, I'm allowing comments, but I implore you not go get into an unproductive shouting match about the comparative merits or demerits of Donald Trump and Hillary Clinton. Rather, I'm interested only and exclusively in whether those of you who support one of them will in fact acquiesce politely to the election of the other (and whether you think that your fellow Americans should do likewise)? I'm also not interested in hearing from any of Bernie's fans, since it defies belief that Republican losers would find him truly more legitimate than Hillary Clinton, who at least has the resume we might legitimately want in a president. Posted
by Sandy Levinson [link]
Sunday, May 22, 2016
Elizabeth Warren and the Progressive Long Game
Warren is the long game for progressives, not Bernie Sanders.
Warren is a lifelong Democrat. Bernie
Sanders is not. Elizabeth Warren has
spent her political career working with and promoting progressive (and other)
Democrats. Bernie Sanders has not. The process by which Democrats select presidential nominees does seem rigged against Bernie Sanders, but for the simple reason
that the system for selecting the next pope is rigged against people who convert to Catholicism only after the papal seat is vacated. One might note, in this respect, that the
process by which Democrats are selecting nominees for Congress does not seem
particularly rigged against progressives who identified as Democrats for
longer than forty-five minutes before declaring their candidacy. A fair case can be made that any
change Democrats make in their presidential nomination system might in the
future work against Elizabeth Warren and other progressive Democrats who have
formed extensive relationships with other Democrats during their lengthy
political lives. At the very least, we
ought to withhold judgment about whether the Democratic presidential nomination
system is rigged against progressive Democrats (i.e., John Kerry, Barack Obama,
who ran to the left of Hillary Clinton in 2008), until a lifelong more centrist
Democrat unfairly wrests the nomination from a lifelong more progressive
Having a Democrat in the White
House in the White House for the near future matters more than having a
progressive in the White House. The
difference between what President Clinton and what President Sanders might
accomplish from 2016 to 2020 with Republican control of the House of Representatives
(and probably the Senate) is likely to be minute. Their possible accomplishments pale in
comparison to what President Warren might do in 2020 or (assuming a two term
Clinton presidency) in 2024 with Democrats in control of the national
legislature. But imaging Democrats majorities
in both houses of Congress after Republicans gain control of all
three branches of the national government in 2016 is difficult. Republicans in
control of all national institutions will through gerrymandering, voting
suppression and floods of money in the political process create a constitutional order in which Democrats are reduced to a permanent minority (even if, owing to demographic changes, Democrats are a
popular majority). On the bright side,
complaints about gridlock, the lack of constitutional change of any sort, and
constitution dysfunction will be considerably muted in this new political
universe which progressives have in their power to bring about by sitting on their hands this November
the long game means working harder to make Elizabeth Warren or a Democratic of
similar progressive values the heir apparent than fighting to the death of the
Democratic Party for Bernie Sanders.
This means the fundamental goal of the forces behind Sanders (and
progressives supporting Clinton) is to make sure Warren gives the keynote at
the convention (the speech of the heir apparent) and progressives are given
major primetime roles more generally. Having Warren and people like Secretary of Labor Tom Perez (brilliant speech at Maryland Law graduation this week) become the face of the Democratic Party's future will do more over time to reduce inequality in the United States than harping on the presumptive Democratic nominee's warts (which pale when compared to the cancer Republicans have chosen to nominate).
politics is a marathon, much as Bernie Sanders would like to turn the next month
or so into a sprint.
Last night, Donald Trump appeared on Press Secretary Hannity's program to discuss (among other things) his proposed Supreme Court list. There are many fine judges on the list, but any conservative who believes that Trump will pick any of them is a sucker no different from the folks who think that President Trump will build a wall along our southern border paid for by Mexico.
Suppose, though, that I am wrong about what President Trump would do about the Court. So what? What astonishes me as a member of the Federalist Society and as a person who considers himself a conservative (albeit a Burkean one) is how easily so many conservatives are selling out. Who cares how the Executive Branch might act for the next four years, the argument seems to go. At least the Court would be doing the "right" thing. Not only is that attitude plainly wrong, but it assumes that a President Trump will give the Court the kind of deference that presidents usually give to its decisions. I submit that everything about Trump's personality argues against that view, and that the first time his Administration lost a big case the Justices (including conservatives) would be trashed as losers and the Court would suffer as an institution.
Voter ID Meets the Voting Rights Act: The Next Big Voting Rights Battle
There is no right protected by more provisions of the
Constitution than the right to vote.Nonetheless, as Americans prepare to go the polls to elect a new
President, the right to vote is under sustained attack.Fifteen states, including battleground states
like North Carolina and Wisconsin, have new
or tougher voter identification laws in place for the first time this
election.In the wake of the Supreme
Court’s 5-4 ruling three years ago in Shelby County v. Holdergutting the Voting Rights Act, states have
sought to make it harder for members of racial minorities, low-income voters
and others to cast a ballot.In Shelby County, Chief Justice John Roberts
wrote that “things have changed dramatically” in the South, but in Texas, North
Carolina and elsewhere, southern state governments have pushed the envelope in
rolling back the clock on voting rights.
One of the most pernicious—yet underappreciated—features of
these laws is the way in which they discriminate against forms of government-issued
photo identification often held by minority voters, forbidding federal, state,
and local government employees and students at state colleges and universities
from voting even with a government-issued photo identification.The effect of this discrimination is to keep
from the polls registered voters who have
government-issued photo identification.These measures do not respond to any government need:voter identification laws target impersonation
person voter fraud, which is
virtually nonexistent, while leaving the more serious problem of absentee
ballot fraud unaddressed. These laws simply
throw roadblocks in front of racial minorities and others who wish to exercise
their constitutional right to vote.
Two huge cases challenging new voting restrictions will soon
be heard by the federal courts of appeal.On May 24, the entire Fifth Circuit—the most conservative federal
appeals court in the nation—will hear Veasey
v. Abbott, Texas’s appeal from a district court ruling that struck down the
state’s draconian voter identification law—which allows use of a gun permit,
but not a government-issued employee or student photo identification card—as a
violation of the Voting Rights Act and the Constitution.Last August, a three-judge panel of the Fifth
Circuit issued a unanimous
ruling, written by G.W. Bush appointee Catharina Haynes, partially upholding
the district court’s decision, and Texas asked the full court to hear the case.
In its defense of the law, Texas is urging the court of appeals to create a
“voter identification” exception to the Voting Rights Act, insisting that, if
the Voting Rights Act is not read narrowly, the Act’s nationwide prohibition on
voting discrimination is unconstitutional.On June 21, the Fourth Circuit will hear North Carolina State Conference of the NAACP v. McCrory, an
expedited appeal from a recent 485-page district
court ruling upholding an omnibus voter suppression law enacted by the
North Carolina legislature in 2013, which imposed a restrictive voter identification
requirement, while eliminating a host of voting reforms designed to increase
political participation by racial minorities and others.
One, or even, both of these cases could reach the Supreme
Court later this year.In 2014, Justice
Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, dissented
from the Court’s refusal to block the Texas voter identification law for the
2014 election, stressing that the restrictive law “risks denying the right to
vote to hundreds of thousands of eligible voters.”Last
month, the Supreme Court once again refused to intervene, but allowed the
plaintiffs to seek relief again if the Fifth Circuit did not rule or vacate the
stay by July 20.Importantly, the
Supreme Court’s unsigned order prevents the Fifth Circuit from simply running
out the clock on the thousands of voters whose rights are at stake.
The key question in Veasey
and North Carolina State Conference of
the NAACP is whether voter identification laws that, whether intentional or
not, make it harder for racial minorities to exercise their right to vote can
be squared with the Voting Rights Act’s nationwide prohibition on racial
discrimination in voting.The answer
plainly is no.
Enacted in 1965 and amended in 1982, the Voting Rights Act’s
nationwide prohibition on voting discrimination helps to realize the promise of
the Fifteenth Amendment that the right to vote shall not be “denied or
abridged” on account of race.Drawn in
sweeping terms, the Act forbids intentional discrimination as well as laws that
result in a denial of equal political opportunity or perpetuate racial
discrimination.Using its power
to enforce the Fifteenth Amendment, Congress sought to ensure that the
right to vote is equally enjoyed by all regardless of race.
The stringent voter identification laws enacted in Texas and
North Carolina violate the Voting Rights Act’s promise of equal political
opportunity: they threaten to disenfranchise thousands of minority voters, even
preventing federal, state, and local government employees and students at state
universities from voting with a government-issued photo identification, and make
it hard for those without a qualifying identification to obtain one.Rather than allow voters to go to a polling
place or other easily available government office, voters without a qualifying
photo identification—who are disproportionately racial minorities—have to
travel significant distances, in some cases hundreds of miles, to get one.This is a system that perpetuates vestiges of
discrimination that continue to hamper racial minorities.
In North Carolina
State Conference of the NAACP, the district court judge ignored the law’s
discriminatory features because the statute provided a “reasonable impediment”
exception that allows a voter to cast a provisional ballot if he or she can
present a reasonable excuse for not having a photo identification.These softening
devices are common, but they cannot justify laws that make it harder for
racial minorities to vote.Provisional
ballots are subject to challenge, more prone to poll-worker error, and are less
likely to be counted than other ballots. Indeed, North Carolina election officials are
currently deciding whether to throw out 1,000
provisional ballots cast in the March presidential primary. A system that relegates minority voters to
provisional ballots does not comport with the Voting Rights Act’s command of equal
States have significant authority to ensure the integrity
and reliability of the electoral process, but they may not accomplish those ends
by using means that result in racial discrimination.The Voting Rights Act does not permit arbitrary,
discriminatory state laws that make it harder for racial minorities to exercise
their right to vote.Simply put, there
is no “voter identification” exception to the Fifteenth Amendment’s guarantee
that the right to vote shall be enjoyed equally by all regardless of race.
David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.
Justice Antonin Scalia’s death, politicians wasted no time before teeing
up a political battle over his replacement. Republican Senators—led by
Senate Majority Leader Mitch McConnell—immediately announced that they
would not consider or vote on any replacement nominees from President
Barack Obama. Instead, Senate Republicans deliberately seek to transfer
President Obama’s power to appoint Justice Scalia’s replacement to the
next elected President. This plan has generated substantial debate, but
the debates have yet to engage with some of the most important historic,
pragmatic, and constitutional risks of the plan. With Judge Merrick
Garland’s nomination to the U.S. Supreme Court pending and Donald Trump
the presumptive nominee of the Republican Party, this Article seeks to
bring greater attention to these risks.
We begin with history
and show a striking fact that has not yet been recognized: There have
been 103 prior cases in which—like the case of President Obama’s
nomination of Judge Garland—an elected President has faced an actual
vacancy on the Supreme Court and began an appointment process prior to
the election of a successor. In all 103 cases, the President was able to
both nominate and appoint a replacement Justice, by and with the advice
and consent of the Senate. This is true even of all eight such cases
where the nomination process began during an election year. By contrast,
there have been only six prior cases in which the Senate pursued a
course of action that—like the current Republican Plan—deliberately
sought to transfer a sitting President’s Supreme Court appointment power
to a successor. In all six such cases, there were, however,
contemporaneous questions, not present here, about the status of the
nominating President as the most recently elected President. The
historical rule that best accounts for senatorial practices over the
entirety of U.S. history is thus the following: While the Senate has the
constitutional power to provide advice and consent with respect to
particular Supreme Court nominees and reject (or resist) particular
candidates on a broad range of grounds, the Senate may only use this
power to deliberately transfer a sitting President’s Supreme Court
appointment powers to a successor in the highly unusual circumstance
where the President’s status as the most recently elected President is
Given this more than two-century long tradition, the
Senate Republicans’ current plan marks a much greater departure from
historical precedent than has thus far been recognized. There is,
however, still a further question whether the historical rule we uncover
reflects a mere senatorial tradition, which should govern internal
senatorial practices of fair dealing, or has further ripened into a
constitutional rule that should inform the best interpretation of
constitutional text and structure. In either case, the consequences of
the plan are far more serious than its architects could have originally
understood. After describing both possibilities, we suggest that Senate
Republicans should rethink their plan so as to avoid these newly exposed
historical, pragmatic and constitutional risks. Instead of continuing
forward, the Senate should do what it has always done in similar past
circumstances. It should proceed to full Senate consideration of Judge
Garland or any other nominees that President Obama submits in a timely
What to expect from the Zubik remand: a possible solution for "church plans," but otherwise no obvious common ground
This much is clear about the Court's per curiam disposition in Zubik v. Burwellyesterday: It does not resolve any of the important, outstanding interpretive questions regarding RFRA. Indeed, the Court was careful to insist that its remand "does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest." The Zubik case, therefore, will not have any impact on the application of RFRA outside the context of the contraception regulation--not yet, anyway. (I discuss some of the more important outstanding issues in this article.)
The Court's order is also unlikely to lead to voluntary resolution of manyof the dozens of pending "nonprofit" cases challenging the contraception regulation, as well as such cases that for-profit employers might yet bring in the future. As I explain below, I believe that although some of the cases (those involving "church plans") ought to be resolved amicably in the lower courts, there will remain at least some cases--probably quite a few--in which the parties are unable to reach an agreed-upon compromise. Therefore, unless all of the courts of appeals reject the remaining RFRA claims--which is a possible, but by no means certain, outcome--at least some of those cases are likely to find their way back to the Court in the next year or two, at which point a full complement of nine Justices would be able to resolve the outstanding disputes.
Once again, in order to understand what is likely to happen to the cases as they return to the lower courts, it is necessary to distinguish among the three very different types of health insurance plans at issue in the cases, which I'll do in a bit more detail below.
The gist of my preliminary assessment is this: For reasons I have explained before, I think that the cases involving ERISA "church plans" (including the suit brought by Little Sisters of the Poor) can probably be settled below, because there was never much at stake in them to begin with: The government has long conceded that, under its own regulatory accommodation, it cannot require the third-party administrators of such plans to provide contraceptive payments. The plaintiff organizations in such cases thus have the power to preclude such payments, and therefore they have nothing to complain about. When that much becomes clear on remand, it ought to facilitate a quick resolution of those cases. I am not as sanguine as the Court appears to be, however, about the prospects of settlement of the remainder of the cases, involving "insured" plans and "self-insured" plans that are not church plans, because many or all of the plaintiffs in those cases continue to insist that their religious exercise would be substantially burdened unless obstacles are put in the way of the insurance companies' payments to women; and, understandably, the government is unlikely to accept any solution that includes such obstacles.
The most vexing question on remand--and the one the lower courts presumably will have to grapple with sooner rather than later--is what the status quo should be during the year or two before the unresolved cases make their way back to the Supreme Court (or are otherwise resolved on the merits). In this regard, one sentence of the Court's order yesterday stands out: "Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives.'"
I read this as an unambiguous directive from the Court (without apparent dissent) that the lower courts should not impose any obstacles to the government's ability to implement its regulations so as to "ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives,'" during the pendency of the litigation.
Currently, however, there are injunctions in place in almost all of the lower court cases that do "affect the ability of the Government to ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives,'" by preventing the federal agencies from enforcing their regulations against the plaintiff organizations. In accord with the Court's order, the lower courts should lift those injunctions straight-away. Even in the absence of the injunctions, however, there might be a host of tricky questions concerning how the government might ensure that the insurance companies in question make payments to the women covered by petitioners’ health plans while the petitioners' RFRA objections remain pending. I'll briefly discuss some of those lurking questions in my discussion below.
The Unwritten Constitution and Presidential Authority
Gerard N. Magliocca
Inspired by Sandy's posts, I want to highlight another aspect of the 1800 presidential election that is especially relevant as a point of comparison to 2016. For most of the nineteenth century, presidential candidates did not openly campaign for that office--it was seen as undignified. This was a custom that basically ended in the great clashes between William Jennings Bryan and William McKinley in 1896 and 1900, but there was considerable merit in that practice. The rise of a demagogue was much more difficult if that person could not personally appeal to voters, and presidential authority was far more circumscribed because those leaders were dependent on surrogates to get elected (or reelected).
An interesting side discussion has suggested that Aaron Burr really wasn't so bad as Hamilton suggested in the letters that I quoted (and which, incidentally, were intended to be circulated and thus made known to the relevant publics). Unlike Donald Trump, for example, he had served his country honorably during the Revolution. Burr was also anti-slavery.
All of that is interesting, and it is possible that Hamilton was being unfair to Burr. But, in some sense, that is beside the point. There can be no doubt whatsoever about two things: First, Hamilton was acting in terms of what he thought was the public interest. This was not Henry Clay throwing his support to Adams in return for becoming Secretary of State. Hamilton obviously never became part of the Jefferson Administration. One should take him at his word that he was behaving on completely honorable grounds. The only way that party entered into his calculations was his altogether acute observation that the Federalists would become absolutely liable for a Burr presidency (and for whatever he did) in a way that would not be true if Jefferson became president and they continued to oppose his policies. Second, there is no reason whatsoever to doubt the sincerity of Hamilton's denunciations of Burr. Even if we decide was Hamilton was the victim of "Burr derangement syndrome," that doesn't affect at all the fact that he genuinely believed Burr to be a menace to the transcendent goal of establishing a truly "Republican Form of Government" in the United States. (One might wonder if Burr's post-duel and vice-presidential career vindicated his critics, as was the arguably true with regard to Robert Bork following the rejection of his appointment to the Supreme Court.)
Hamilton had learned what honor meant from George Washington: One of the most remarkable features of "Hamilton" is the Washington's Farewell Address, which I never imagined would bring tears to my eyes, but it does inasmuch as it truly captures what made Washington such a truly great republican leader by rejecting the notion of the "indispensable man."
The overall point is that Alexander Hamilton provided an inspiring model of what it means to be a truly public-regarding citizen. Paul Ryan could do much worse than to immerse himself in the work both of Pope Francis and Alexander Hamilton if he wishes to present himself as a man we should have any respect for. Even if one believes that Hamilton ignored some of Burr's merits, that still doesn't entail, of course, believing that we would have been better off with Burr than with Jefferson as president. (There is also the possibility that the imposition of Burr by Federalists would have led to civil war given the threat of Pennsylvania's and Virginia's governors to call out their militias and march on Washington should the Federalists in effect steal the election.)
It is interesting to compare the Goldwater election with this one. Many Republicans refused to support Goldwater, but the rationale was, as I recall, almost entirely on policy grounds. He had, after all, voted against the Civil Right Act of 1964 and seemed dangerously "extremist" to many. With very few exceptions, he was not denounced as a dangerously power-hungry narcissist who has no consistent commitments other than xenophobia. JFK in fact liked Goldwater and was apparently looking forward to flying around the country to debate with him should he get the nomination. Nor, incidentally, do I recall that Goldwater spent much time attacking the personal character (or physical characteristics) of his adversaries.
I have published in several Texas newspapers an op-ed about Hamilton's decision to support Thomas Jefferson over Aaron Burr as the House of Representatives was voting on how to break the tie vote between them. Whatever one might think of some of Hamilton's particular policies, there can be no doubt that he was a genuine patriot, unsullied by personal corruption. (This is why he chose to write his disastrous "Reynolds pamphlet" about his affair with Maria Reynolds, because private shame was ore easily bearable than accusations of public dishonor. And he clearly believed that patriots committed to the national interest should rally around Jefferson, whatever their doubts, as agains the totally unprincipled and opportunistic and vainglorious Aaron Burr. My essay quotes from several letters he wrote at the time, and I suggest that one could easily substitute Donald Trump for Aaron Burr, with the result being the same. I.e., no serious patriot should be supporting Donald Trump for the presidency, period
As one might imagine, I've received a number of emails from readers, some of them complimentary, a few of them out-and-out condemnatory, and several that disagree in a very thoughtful way. W hat is clear is that many Republicans believe that Hillary Clinton, too, could "fill in," as it were, for Aaron Burr. That is, they don't trust her any more than Hamilton trusted Burr or any of us should trust Donald Trump. I disagree, but that, in some ways, is beside the point. It seems clearer than ever that this is going to be the dirtiest presidential campaign in American political history. The only thing Donald Trump knows how to do is to cast aspersions at anyone who stands in his way, and Democrats will rightly condemn Trump as unfit for the presidency. Hillary Clinton must find effective ways of defending herself against the coming onslaught, financed in part by the egregious Sheldon Adelson, who has, I suspect, far more money available than does the posturing Trump. Even if she were pure as the driven snow, that wouldn't stop Trump for casting aspersions. But even her genuine admirers, of whom I am one, don't view her as Snow White. I confess that I think she should release the transcripts of her Goldman Sachs speech, the content of which about reasonable people can wonder. about.
As usual, I am allowing comments. The main thing I'd like to hear, from Republicans, is whether (and why) they believe that Hamilton was mistaken in supporting Thomas Jefferson; if not, do they agree that honorable Republicans should, even if not vote for Hillary Clinton, perhaps vote Libertarian or write in the name of a non-fascist Republican who is, by training and character, equipped to hold the office of President of the United States. I'm also not interested in hearing analyses of why Trump turned out to be appealing to his constituents. The one and only question is whether Donald Trump is in fact fit to be President. Posted
by Sandy Levinson [link]
Readings of "Taking a Hard Line"
To review the bidding: I wrote that, having won the culture
wars, liberals faced a tactical question of how to treat the losers, with the
options being accommodation or taking a hard line. I offered my own tactical
judgment, based on four historical examples, that taking a hard line was the
better approach. The four examples were presented thus: “Trying to be nice to
the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in
Germany and Japan after 1945.)”
This was presented by the egregious Ryan Anderson as, “Harvard
Law Professor Says Treat Conservative Christians Like Nazis.”* (For obvious
reasons I’m not providing links to this or the next two versions.) Then it
migrated, first, I think, to Breitbart, then to, among other places Der Stürmer
American Vanguard, as “JewishHarvard Prof Urges Liberals to Treat Evangelical
Christians Like Nazis.” Breibart added that I was a 70 year old professor, a
detail the relevance of which eluded me until I read some of the ensuing hate
mail: some used the detail to suggest that I was an intellectually enfeebled senile
old man unable to construct a coherent argument, while others calculated my
birth date and did the “if Hitler had won, your mother…” thing. (By the way, the
strike-through was the snark I resisted until now, not snark about the generic “negative
reaction” to my comments.)
I know that an author lacks control over the meaning others
give to his or her words, and of course it’s semantically consistent with those
words to read them as urging war crimes trials for the losers in the culture
wars, denazification, and the like (or, as one pained letter to the Dean of
Harvard College put it, gunning Christians down) – even though that’s not what
I intended. More temperate readings are possible, though, and so those who
offer the stronger readings can be queried about why they chose those readings
rather than other semantically possible ones (as can I be queried about why I
choose a more temperate reading; to say that one reading – the strong one or
the temperate one – is a reasonable one isn’t enough). The answer for Anderson
and Der Stürmer is clear to me: The strong reading is useful for rallying
the troops (for what in my view is a silly skirmish as the troops fall back in retreat). The answer for
most of those who sent me hate mail is also clear – about one-quarter
antisemitism, and almost all the remainder that the writers didn’t read what I
wrote but only what Anderson, Breitbart, etc., wrote, and so did not have their
own independent reading. I have my views about the answer for others, not among
the writers of hate mail, who gave the words the stronger reading, but
articulating those views would annoy them even more, which I really don’t want
The target of my “take a hard line” was a set of ideas
circulating among liberals and sensible conservatives about being accommodating
in victory (or, for the latter, being accommodating full stop), in
advance of any indication that doing so would actually contribute to healing
the wounds of war – about doing the equivalent of pursuing Andrew Johnson’s
policies for Reconstruction, or hoping with Felix Frankfurter that gradualism
in desegregation would bring about real change in the post-Brown South. I haven’t yet heard anything other than vague hopes
that accommodation rather than a hard line will be more effective, or some
hand-waving gestures in the direction of the thought (mistaken, I believe) that
only accommodation is consistent with a commitment to bringing whatever
national unity is possible after victory in the culture wars. (Of course all
this rests on the accuracy of my evaluation of the state of the culture wars,
which might be mistaken – though equally of course I don’t think it is.)
* By the way, somehow I got on Anderson’s e-mail list for “Public
Discourse” and continue to get e-mails from it even after I use Outlook to “add
sender to blocked senders list.” Help appreciated.