I must confess to having a track record of chronically underestimating President Trump’s ability to defy gravity (as well as all norms of human decency), but I can’t make sense of the political calculations behind his administration’s barely-secret campaign to sabotage the Affordable Care Act (ACA). (I’ll count this as evidence, even though it comes from someone who has recently left the administration.) Consider how each of the following groups has responded or is likely to respond:
- Supporters of the ACA have recognized the sabotage campaign for what it is: an attempt to accomplish through executive malfeasance–OK, discretion, if you’re unwilling to accept that incentivizing healthy people to leave the Obamacare insurance markets will cause their collapse–what could not be accomplished through legislation. When premiums on the individual insurance markets soar and insurers abandon said markets, ACA backers will know whom to blame. As will women, supporters or not, who will be losing contraceptive coverage because they work for employers claiming religious objections to some or all methods of contraception other than withdrawal and prayer.
- Opponents of the ACA will not be satisfied because the Congress they elected promised “repeal and replace,” and their president promised that the replacement would provide “something terrific.” One-party domination of Washington has failed even to generate repeal, never mind replacement. As such, a change of partisan control could result in the ACA’s resurrection, with Democrats being prepared to make the ACA more robust and sabotage-proof, if not to replace it with single-payer. Moreover, administrative sabotage also denies you the opportunity to take credit for repeal. Suppose someone builds a structure that you claim is rickety but manages to stay upright. If you work to undermine its stability and the structure eventually collapses, you can publicly claim credit for the structure’s demise only by acknowledging your role in precipitating the collapse. Claiming to have done nothing, after having predicted its shakiness so publicly, leaves you vulnerable to the charge that you could have acted to save the structure, but failed to do so.
- Policyholders on the individual markets vary a great deal in their political awareness. The less-aware are unlikely to have followed the political debates over the ACA and might be especially prone to adopting the “both sides do it” framing so prevalent in much mainstream media coverage. But even if they don’t know the intricacies of either the policy or political debates, they’ll know that premiums rose dramatically, and that this rise occurred on Trump’s watch. As such, he’ll own those increases, despite his claims to the contrary. To be sure, some of those policyholders will remain loyal to Trump no matter what he does. But given Trump’s loss of the popular vote and subsequent loss of popularity, any bleeding of support is consequential.
The best-case scenario for Trump is the one in which his ransom note generates negotiations to save the Obamacare markets. If these negotiations produce a deal, the president could point to the result as yet another example of his superior deal-making acumen. But there’s no reason for Democrats to ride to Trump’s rescue. Both policy and electoral considerations argue strongly against a hostage negotiation; more critically, the president has no leverage in this situation. Whether he publicly takes credit for breaking the Obamacare exchanges, the public–and especially the subset that would be harmed most directly–will know whom to hold responsible, and, despite what the president believes, it won’t be Democrats. Or maybe I’m putting too much faith in gravity.
Bernard Grofman and Gary King, in a 2007 Election Law Journal article, drew parallels between redistricting and a boxing match, in that while we expect the combatants in each setting to try to clobber each other, we also expect there to be rules that place some actions off-limits. On Tuesday, the Supreme Court, hearing oral argument in Gill v. Whitford, grappled with the question of whether the more appropriate analogy is to a street brawl. There’s just enough devil’s advocacy from the justices to make forecasting based on oral argument an inexact science, but it would appear that those challenging the Wisconsin state legislative districting have greater cause for optimism, however guarded, than those defending it.
Tuesday’s hearing was further proof that until the next departure from the Court, it’s Justice Anthony Kennedy’s world, and his eight colleagues are just living in it. Kennedy is central not only because he represents the Roberts Court’s swing justice, but also because he is the only conservative on the Court who has entertained the possibility that the Court could strike down partisan gerrymandering, as long as the justices have a “workable standard” for determining when redistricting efforts had gone too far in promoting partisan aims. In the 2004 case representing the Court’s last consideration of the constitutionality of partisan gerrymandering, Vieth v. Jubelirer, Kennedy’s conservative colleagues took the position that courts had no administrable method for identifying unconstitutional gerrymandering, and that redistricting is inherently a political exercise into which courts should not intervene. Today’s conservative bloc took the same position, while the liberal justices worked to demonstrate the availability of several workable quantitative measures of gerrymandering, and more broadly to show that grappling with the social science underpinning the challengers’ case was not beyond the capacities of federal judges. If the challengers and their backers on the Court succeed in persuading Kennedy, many other states will see their district maps jeopardized, with effects to be seen as soon as the 2018 elections.
So how persuadable is Kennedy? Some points to consider:
- He’s considered a strong defender of the First Amendment, and as such he might be sympathetic to the claim that extreme gerrymandering leads to identifiable voters facing unconstitutional discrimination based on their political affiliations and views. Then again, the other justices who joined him in the majority in Citizens United, a case also relying on a First Amendment claim, are all but certain to side with Wisconsin’s position. So being a First Amendment stalwart hardly guarantees that one will accept the particular First Amendment claim being advanced. But while Kennedy questioned the Wisconsin map’s defenders about First Amendment arguments, he did not similarly put the challengers on the spot on this point.
- Kennedy also did not push the challengers’ attorney, Paul Smith, on the question of judicially manageable standards for identifying extreme gerrymanders. If Kennedy didn’t inquire because his mind was already made up, is it more likely that he was satisfied by what the challengers and political science amici had proposed, or that he has very quietly abandoned the views he expressed in his Vieth concurrence?
- Finally, while I find the term “judicial activism” analytically unhelpful and not much more than a pejorative, Kennedy’s legacy on the Supreme Court, aside from representing that crucial fifth vote on so many decisions, is rooted in his willingness to play an assertive–an activist?–role in promoting certain values, be they federalism or promotion of human dignity. Might Kennedy see himself as trying to save representative democracy from gerrymandering designed to lock in temporary electoral majorities? Paul Smith asked all nine justices to make such an effort: “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.” But his words were targeting one particular justice.
Basically, there are three ways this case can be resolved, assuming the justices don’t dodge the matter entirely by claiming that the challengers lacked standing to sue:
- Declare partisan gerrymandering non-justiciable, thereby establishing Wisconsin’s map as the model for future state legislative gerrymandering.
- Declare partisan gerrymandering justiciable on First and/or Fourteenth Amendment grounds, and provide a multi-part test for identifying gerrymandering, along the lines of what Justice Stephen Breyer referred to during oral argument, that draws upon quantitative measures as well as the broader political context within which the contested lines were drawn.
- Declare partisan gerrymandering justiciable, but without offering any standard beyond “I know it when I see it.”
My expectation is that Kennedy will open Door #2.
In Thursday’s New York Times, Adam Liptak highlighted an irony of President Trump’s tirades against the federal judiciary: that the rulings thwarting some of his higher-profile executive orders–the travel ban and the threat to strip “sanctuary cities” of federal funding, more specifically–stem from precedents established by conservative Supreme Court justices and litigation strategies pursued by conservative actors (for the latter, also see here). In particular, Liptak focused on two practices used to block actions taken under Presidents Obama and Trump: (1) bringing constitutional challenges against policies that threaten states with financial harm if they do not carry out federal policy, and (2) asking individual district court judges to grant injunctions with nationwide effect. (I’d also credit the conservatives on the Rehnquist Court for their support of an “anti-commandeering” principle limiting the ability of the federal government to compel state and local actors to carry out federal policy.) The bulk of Liptak’s analysis proceeded to explain why liberals should be wary of the prospect of conservatives’ litigation tools being used to serve liberal ends. But the implications of this warning for how Democrats should respond to Trump policy initiatives–though the term “initiatives” suggests something more organized than this bunch of ill-conceived and amateurishly constructed executive orders–are murky at best, and Democrats would be foolish to follow the article’s implied advice.
Liptak is correct to note that both liberals and conservatives demonstrate Gumby-esque flexibility when it comes to their commitment to federalism and willingness to pursue short-term political victories at the expense of longer-term adherence to constitutional principle. But apparently, only liberals should eschew such flexibility, according to the two quoted law professors, both of whom do possess track records of commitment to federalism:
Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. “Whatever California can do to resist immigration law,” Professor Blackman said, “Texas can do to resist environmental laws.”
Ilya Somin, a law professor at George Mason University, made a similar point from the opposite direction about the decision on Tuesday to block efforts to withhold federal money from sanctuary cities.
“Some conservative Republicans may not like the outcome of this specific case,” he wrote on The Volokh Conspiracy, a legal blog. “But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move.”
The implication of these recommendations is that liberals should accept a paradigm in which states’ rights govern when Democrats control Washington, but not when Republicans do. But how does that translate into action? How should Democrats respond to Trump executive orders they consider objectionable (pardon the redundancy)? Let’s consider the available alternatives to the status quo approach:
- Liberals should refrain from raising states’ rights-based legal objections in court. The implication is that staying one’s hand today will preserve the ability tomorrow to defend strong national authority exercised on behalf of liberal causes (e.g., environmental protection, LGBT rights). But the practices liberals are being advised to eschew (making states’-rights arguments, seeking injunctions from judges based in favorable terrain) already exist. If liberals take this advice, these practices will still be available the next time a liberal administration needs to be thwarted. Barring a Supreme Court willing to revisit Rehnquist Court views on federalism–and no one should hold their breath waiting for the arrival of that Court–the precedents relied on by conservative litigators will remain available for deployment. A foolish consistency might not be the “hobgoblin of little minds” that Emerson claimed it is, but it would hardly guarantee future rulings favoring national authority dedicated to liberal ends. So if you’re stuck with conservative-preferred doctrine either way, why deny yourself the opportunity to use it to attain liberal-preferred results?
- Liberals could exclusively raise legal claims not rooted in federalism. One of the advantages of litigating against a post-policy administration disinterested in legal niceties is that a wide range of legal claims opens itself up to you. Why not base one’s legal attack on claims rooted in equal protection or the First Amendment, as we saw in the response to the travel ban, or due process, as we’re seeing in the challenge to Trump’s attack on sanctuary cities? That way, you avoid lending support to doctrinal concepts you’d like to see discarded eventually, while backing concepts that you’d like to see fortified. Fortunately for liberal litigators, rights-based claims and federalism-based claims are not mutually exclusive logically or strategically. There’s no reason not to raise both and let judges decide which ones are more persuasive. Raising both sets also improves one’s chances of winning among a more robust set of judges; conservative judges who might be wary of expansive readings of equal protection, for example, could choose instead to rely on anti-commandeering arguments.
In short, we’re living in a legal regime that conservatives have played a crucial role in shaping. It would be folly for liberals to refuse to use the doctrines of that regime when they happen to work to liberals’ advantage, given the long odds that liberals will be able to alter that regime anytime soon.
I harbor no illusions, especially with the filibuster eliminated for Supreme Court nominations, that Judge Neil Gorsuch’s nomination will be derailed by claims, presented in Politico and Buzzfeed on Tuesday, that the nominee had used language from source material without attribution in his book and a 2000 law review article. (Here are the passages in dispute, so you can examine them side-by-side and draw your own conclusions about whether an offense was committed, and if so, how severe it was. Noah Feldman, for one, considers the plagiarism “embarrassing,” but not disqualifying.) Senate Republicans have made it this far in their effort to fence the stolen ninth seat on the Court, and it’s hard to envision that there will be sufficient defections for anything shy of confessing to being a devout Muslim or having performed an abortion. But here’s why the claims of plagiarism should matter.
When I talk to my students on the first day of class about academic honesty, I start by discussing Pete Rose’s ban from Major League Baseball (after telling less sports-literate students who Rose is). Even before the emergence of on-line gambling and daily fantasy sports, betting on major-league baseball games (as opposed to running bookmaking operations) was not considered a major criminal offense in American society writ large. But within the milieu of professional baseball, it has been considered a capital offense since 1927, when Major League Baseball adopted a stringent ban in response to the Black Sox scandal that tainted the 1919 World Series. Allowing players or coaches to wager on games in which they could directly influence the outcome (or even in games in which they couldn’t) would directly damage the integrity of the enterprise. The game could not survive without fans being able to trust that participants had no pecuniary interest in failing to try to win.
Similarly, the integrity of the academic enterprise requires that readers be informed about which words and ideas are the writer’s, and which ones come from outside sources. Disclosure enables readers to check that the author has represented his or her source’s ideas and words accurately, and to consider the source’s credibility when assessing the citing author’s work. The academic enterprise suffers irreparable harm when readers can’t assume a certain level of honesty on the part of authors.
The defenses of Gorsuch don’t hold up terribly well. Among the defenders presented by the White House were his mentor at Oxford (John Finnis), an external member of Gorsuch’s dissertation committee (John Keown), and the general editor of Gorsuch’s book (Robert George). When they minimize what Gorsuch did, these scholars are hardly arguing against interest, either ideological (a shared interest in natural law and desire to see a committed social conservative on the Supreme Court) or professional (not catching plagiarism is embarrassing for scholars reviewing others’ research, even when the misused material is unlikely to register as suspicious). More to the point, it’s hard to envision these scholars describing misappropriation by their undergraduates in the words George used to defend Gorsuch:
[Gorsuch] “did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own….In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke,”
Surely George must know that standard definitions of plagiarism are wider ranging than what he offers as the definition he uses to clear Gorsuch. The Council of Writing Program Administrators defines plagiarism as resulting “when a writer deliberately uses someone else’s language, ideas, or other original (not common-knowledge) material without acknowledging its source.” And the Modern Language Association defines plagiarism as follows:
“Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism…. [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics…. Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking”
People can reasonably differ on what consequences should arise from Gorsuch’s actions, but if the writings cited in the Politico don’t constitute plagiarism, then lazy or dishonest students across the country will have cause to breathe easier.
What about the defense offered by Abigail Lawlis Kuzma, author of the Indiana Law Journal article at the heart of the controversy? She claims that the copied passages at issue were “factual, not analytical in nature,” and that paraphrasing would have been “awkward and difficult.” But even if you accept the claim that rephrasing a highly technical passage would have been awkward–and there’s evidence that more lay-friendly paraphrases were possible)–why not simply quote the material directly and attribute it to Kuzma, along with the primary sources she used? Instead, we see material used word-for-word or close to it, along with ellipses in the same places in both works. I punish that kind of sloppiness when my undergraduates commit it; shouldn’t the standards be higher for someone aspiring to serve on the nation’s highest court? It appears that they won’t be, but that’s no reason to shrink from a defense of those standards.
Have LGBT advocacy groups such as Lambda Legal and the Human Rights Commission been jumping the gun in their opposition to Judge Neil Gorsuch’s nomination to the Supreme Court, because Gorsuch has acted in ways that suggest he does not share Justice Antonin Scalia’s hostility to the LGBT community. Consider the evidence:
- Having hired two openly gay clerks during his tenure on the Tenth Circuit Court of Appeals.
- Being supportive of one of those clerks when he revealed his sexual orientation to the judge.
- Living in a liberal Colorado community and attending a gay-friendly Episcopal church.
- Displaying no indication, in his record on the Tenth Circuit, of overt hostility to LGBT rights.
There is much to be said for a nominee who is not prone to ranting about the “homosexual agenda,” and who has numerous clerks willing to speak to his independence and open-mindedness. Those prone to optimism might look to these data points as support for hope that on LGBT issues, Gorsuch will bear greater resemblance to Justice Anthony Kennedy, for whom Gorsuch clerked, than Justice Scalia, whose brand of originalism Gorsuch subscribes to. (Judicial politics scholars offer contrasting predictions of where a Justice Gorsuch would fall on the ideological spectrum.) But even if we accept these supportive characterizations of Judge Gorsuch, there are still compelling reasons for LGBT advocacy groups to be concerned.
- The test of one’s commitment to rights is not whether you’d recognize those rights when claimed by people close to you. It’s whether you’d extend those rights to people you’ve never met and will never meet. It speaks well of Gorsuch that he has been supportive of gay work associates, and that he and his family did not treat a church’s LGBT-friendliness as a deal-breaker. But if his jurisprudence devalues marriages and enables states to treat LGBT individuals as second-class citizens, these examples of personal goodwill will offer little consolation to disfavored people who lack any personal tie to Gorsuch. (Remember, too, that Mary Cheney’s sexual orientation had no apparent impact on the gay-friendliness of George W. Bush’s policy agenda.)
- It would be trivially easy for a Justice Gorsuch to say that while he personally favors LGBT rights, and would support them were he a legislator, his role on the bench is to interpret the law to the best of his ability, and not to enact his personal policy preferences. It’s a claim that plays well both in the Senate Judiciary Committee hearing room and the court of public opinion. Even legal realists who claim that this formalism is impossible to achieve in practice do not oppose it from a normative perspective. So even if the claims presented in the Times article reflect a lack of hostility to LGBT rights, the only inference one can clearly draw is that Gorsuch’s opinions will probably be devoid of Scalia-esque rhetorical salvos against gay rights and their advocates.
- Gorsuch was part of the Tenth Circuit panel that held, in Hobby Lobby Stores v. Sebelius, that closely held for-profit corporations could legally claim, under the 1993 Religious Freedom Restoration Act, an exception from the Affordable Care Act’s requirement that their health insurance plans include contraception coverage. It hardly requires a great leap of logic to think that the vision of religious liberty espoused in Hobby Lobby would extend to cover legislation allowing for a religion-based exception to laws banning discrimination based on sexual orientation.
In short, those concerned about LGBT rights should look not to Gorsuch’s heart, but to his jurisprudential approach. That approach should give advocates cause for concern, even as they consider the poor odds that the current president and Senate majority propose a nominee whom LGBT advocates would prefer.
(Part I can be found here.)
Radley Balko (Washington Post): Democrats have compelling reasons to be angry about Garland’s treatment, but they could do far worse than Gorsuch, whose unwillingness to defer to agency interpretations of federal statutes suggests that he’ll resist Trump’s power grabs. If you think Trump represents a singular threat to democracy, then you’d be foolish to reject someone, however conservative, who has a track record of resisting executive overreach. And supporting Gorsuch would make all-out resistance to a second Trump nomination more credible; moderates, in Balko’s view, won’t respond well to a blockade. If you want to send Trump a message, Attorney General nominee Jeff Sessions would be a more appropriate target.
My assessment: Gorsuch has indeed displayed libertarian leanings on some issues (e.g., Fourth Amendment) that not only would make Democrats happy, but would make them happier than Garland would have. But the problem with counting on Gorsuch to push back against executive power is that the cases cited as evidence come predominantly from the Obama presidency. Will Gorsuch be equally willing to push back against Trump’s assertions of executive authority, or to refuse to defer to statutory interpretation performed by Trump’s appointees? Although I’d agree with Balko that Sessions merits opprobrium more than does Gorsuch, it’s not as though Democrats have to choose between obstructing Gorsuch and voting against Sessions; there are plenty of no votes to go around.
Noah Feldman (Bloomberg): Opposing Gorsuch would be foolish. He is as qualified a nominee as you’re going to find, and while he’s conservative, he’s not a bomb-thrower. Indeed, his lack of ideological rigidity suggests that he might be capable of moving toward the center, as did Justice Kennedy, for whom Gorsuch clerked. “[I]t would be hard for Gorsuch to call for, say, overturning Roe v. Wade while sitting with his old boss, who rejected that path in the Casey v. Planned Parenthood case.” A scorched-earth campaign portraying Gorsuch as an extremist, however, might push him further right.
My assessment: An opposition campaign that took liberties with its description of Gorsuch’s jurisprudence, or that searched his personal life for molehills to blow up into mountains, could indeed embitter the nominee. And Gorsuch’s clerks, of varying ideological leanings, have spoken of his open-mindedness. But Senate Democrats could make clear that their beef is not with Gorsuch personally, but with Mitch McConnell and Donald Trump. Given his prior outspokenness about how both Garland and John Roberts had been treated by the Senate during their appointments to the Courts of Appeals, I suspect that Gorsuch will recognize that the battle is not about him per se, but instead concerns primarily the ongoing partisan struggle over control of the one branch of the national government that is expected to stay clear of partisanship.
So it’s been two days since Judge Neil Gorsuch was appointed to inherit Mitch McConnell’s stolen property, i.e., the ninth seat on the Supreme Court. Apparently, I was not alone in offering unsolicited strategic advice to Senate Democrats. Here are some examples from more visible analysts, with paraphrases of their advice followed by my assessments. (I’ve broken the original post into smaller, more digestible chunks.)
Steven Pearlstein (Washington Monthly): Obstructing Gorsuch is bad because it undercuts the Democrats’ image as the party that actually cares about governance, as well the party’s claim that the Supreme Court needs nine justices to function effectively. It also will induce wavering Republicans to side with their party in the face of partisan obstruction, instead of defecting from Team Trump on issues where Democrats might be able to garner their support. And even if a blockage forced Gorsuch’s withdrawal, the result would be a nominee whom Democrats would like much less. Rather than obstruct, Democrats should condition their shelving the filibuster on the adoption of a resolution that would bar Trump from filling any vacancies that might occur during the last year of his term. Republicans could demonstrate that their justification for blocking Merrick Garland wasn’t spurious and self-serving, and Democrats could still voice their opposition to Gorsuch by voting against the nomination.
- The argument about preserving the brand has some merit, but the party has a greater imperative right now when it comes to brand association. The Democratic Party has the image of a group that brings textbooks to a gunfight and can’t figure out why the folks with the guns keep winning. The party base is demanding payback for what happened to Garland, and given that priority, it will not treat full-tilt opposition to Gorsuch as indicative of the party’s lack of interest in governance.
- Treating Gorsuch as business as usual will earn Senate Democrats approximately zero votes on Obamacare, environmental protection, or any other policy priority. Republican senators have more much to fear from primary challenges, especially given their popularity ratings relative to Trump’s, than they do from failing to extend an olive branch to their Democratic colleagues.
- As for the proposed alternative to the filibuster, why would the Senate of 2019 feel compelled to honor a resolution passed in 2017, especially if the Republican majority were to grow after the 2018 election? The Senate could simply pass a new resolution, and Democrats would have no leverage to stop it. And if Senate Democrats think that Mitch McConnell and Orrin Hatch behaved disreputably in stonewalling the Garland nomination, why would they trust them to uphold the proposed deal?
Garrett Epps (The Atlantic): He’s agnostic on whether Democrats should filibuster, but he does think their (and Republicans’) questioning during the hearings should center on Gorsuch’s commitment to democracy in the face of the Trump administration’s attacks on it. Topics to be featured would include due process protections for immigrants; protections for free speech and free press in times of crisis; restraints on executive power; and the dividing line between permissible voting regulations and voter suppression.
My assessment: Whether or not Democrats filibuster, they will not possess the power to prevent hearings. So why not devote the hearings to something meaningful, given the present climate? The lines of inquiry posed by Epps will provide greater insight into Gorsuch’s outlook than would the tired two-step over abortion, where senators can’t ask directly about Roe and nominees won’t answer forthrightly. (It’s not as if we don’t already know Gorsuch’s position on Roe.) They also allow for senators to move beyond the cliched and not-terribly-informative debates over judicial activism and judicial restraint. Most important, they enable a discussion that properly places legal questions in a political context, but without defining that context predominantly as partisan.