When I share my origin story (they’re not just for superheroes!) as a political scientist with my students, I focus on Robert Bork’s ill-fated nomination to the Supreme Court in 1987, my first year of college. I confess to not having been a fan of Judge Bork’s originalist approach to interpreting legal text. His focus on the framers’ understandings appeared to reflect a lack of humility when it came to identifying the often opaque views of long-dead individuals. I was struck too by how often originalist reasoning produced substantive outcomes that seemed untenable in a modern democracy. How could the First Amendment be read so as not to cover literature or art? How could the preeminent legislative effort to undo Jim Crow be considered constitutionally shaky because one’s right to discriminate lies on the same moral plane as one’s right not to suffer said discrimination? And at that time, I still didn’t know of Bork’s service as the executioner in Richard Nixon’s Saturday Night Massacre, or of how his influential writing on antitrust law would spur waves of corporate mergers and a tendency toward greater concentration in a sizable majority of American industries.
But I did appreciate Judge Bork’s confirmation hearings. The nominee, in conjunction with his questioners on the Senate Judiciary Committee, treated me and the American public to an enlightening symposium that explored the role of unelected, life-tenured judges in a representative democracy, and how his commitment to originalism fit within a particular role orientation. He did not convert me to originalism, but he did leave me with a less caricatured understanding of that interpretive modality. Most to my liking, the nominee did not shy away from difficult questions about his outlook or its consequences. Whatever you thought of Judge Bork, you knew where he stood. That meant that senators had something concrete to point to when they sought to justify their confirmation votes. And the entire Senate got the opportunity to vote on Bork’s nomination, despite his having failed to receive majority support from the Judiciary Committee. (Remember that next time you hear about how horribly Bork was treated by Senate Democrats.) Watching the process, in summary, launched my interest in American judicial politics.
I cannot envision the upcoming confirmation battle over President Trump’s next nominee having a similar effect on any of my students (or anyone else’s students, for that matter).
It’s tempting to write off my attitude as a function of ideologically based sour grapes. Perhaps if I were a conservative, I would be breathlessly following every twist and turn of The Next Top Justice, much as football junkies follow the lead-up to the NFL Draft. Maybe I’d have strong opinions about whether involvement with a Bush presidency disqualifies a potential nominee, or whether conservative schadenfreude over Roe‘s demise would be maximized by having a very Catholic woman deliver the fifth vote to overturn, or whether the symbolism of appointing the first Asian-American justice would offset the president’s endless litany of vitriolic policy and rhetoric directed toward immigrant communities of color. Ultimately, though, the millions of pixels that have been devoted to identifying minor points of divergence among the potential nominees obscure the degree to which the candidates’ similarities outweigh any differences. Every candidate on the shortlist survived the Federalist Society gauntlet; as such, we can assume that the nominee will have certain attributes:
- Hostility to Roe, with the only point of distinction being whether Roe will be overturned with one clean throat-slash or through a thousand smaller cuts. The nominee will speak of norms of respect for settled precedent, without telling us that people might disagree on what makes a precedent “settled,” or that the norm of stare decisis allows for precedents to be abandoned under certain conditions that the nominee will inevitably find to have been met. Telling us that Roe is established precedent, as the nominee will do, means nothing because Supreme Court justices have the power to modify or abandon precedent.
- Views on regulation of business that lie to Justice Anthony Kennedy’s right. For all of the grousing about Kennedy’s votes on gay rights and capital punishment, conservatives had little to complain about when it came to the justice’s views on binding arbitration and class-action suits, for example, or for deregulating campaign finance. No replacement will move away from that position.
- Continuing indulgence of state-level efforts to limit voting rights under the spurious banner of combating voter fraud.
- Suspicion of the administrative state, perhaps with some suspense over whether American jurisprudence will be rewound to 1936 when it comes to government power to regulate the economy.
Just as certain aspects of the nominee will be predictable, so will the confirmation hearings. The nominee will swear fealty to textualism and originalism, while forswearing “legislating from the bench,” thereby hitting key squares on the Republican senators’ bingo cards. Democrats, unable to pin nominees down on abortion for the past three decades, will keep trying to find ways to lure nominees into talking about Roe by talking about a right to privacy, or about respect for precedent. They’ll be surprised to find that the nominee has anticipated these lines of questioning and will answer, on abortion as on any other contested issue, with as little substance as possible. There will be some effort to find some dubious association or personal wrongdoing that will disqualify the nominee to at least one Republican, in the vain hope that a party that has stuck by a president defined by his dubious associations and personal wrongdoing would bail on a Supreme Court nominee with far lesser transgressions to his or her name.
If you’re a Democrat and searching for some cause for optimism, maybe you’ll hope that a senator will try to pin the nominee down on his or her views concerning the scope of presidential power, and the pardoning power in particular. Or maybe you’ll expect that Democrats will recognize their inability to block confirmation, and instead turn the nominee into a tool to further mobilize the base for November. These kinds of actions might be worth pursuing, and they might be the only way Democrats can salvage something from the aftermath of Kennedy’s resignation. Whether they’re likely to inspire many 18-year-olds looking to study or to practice politics, however, remains an open question.
When I have taught my students about the Supreme Court’s decision in Korematsu v. United States to uphold the internment of Japanese-Americans during World War II, I’ve asked them whether this shameful chapter in US history could ever repeat itself. Some students said that today’s multi-ethnic America would not countenance such oppressive policies, as we’ve come too far, despite our occasional setbacks, to fall prey to demonizing an “other” in our midst. Others were less sanguine about how much progress American society has made and figured that our demons would re-emerge if given an opportunity. In the course of these discussions, I’d inevitably point out that Korematsu has never been explicitly overturned by the Supreme Court. To be sure, the US government, in the course of paying reparations to survivors of the internment, has formally acknowledged the wrongness of the ruling, and the majority opinion has come to take a firm place in what Jamal Greene has dubbed the “anti-canon,” comprising the Supreme Court’s most ignominious rulings, or as Greene puts it, the “land mines of the American constitutional order.” But most of us lacked the foresight to envision that Korematsu could rise from its crypt and haunt our law anew, rather than suffer a well-earned decapitation from the Court as soon as an opportunity arose.
On Tuesday, my more pessimistic students got to take whatever minimal satisfaction one could get from being so right about something so wrong, when the Court, by a 5-4 margin, upheld President Trump’s Muslim-ban-that-isn’t-a-Muslim-ban-but-really-is. Chief Justice John Roberts did make a point of telling us not only that Korematsu was not being resurrected, but also that “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and,” quoting Justice Robert Jackson’s Korematsu dissent, “has no place in law under the Constitution.” Those are noble sentiments, but it doesn’t take much courage to condemn what most of the broader society (I see you, Michelle Malkin) condemned a long time ago. The relevant question isn’t whether you reject yesterday’s fear-mongering targeting yesterday’s stereotyped “Other” based on a dubious national security justification; it’s whether you reject today’s fear-mongering targeting today’s stereotyped “Other” on similar grounds. Muslims unjustly harmed by the ban perhaps can hold out hope that they, too, will receive an official apology forty years later. More likely, the dismissal of Korematsu in Trump v. Hawaii will represent a bitter irony, much as the Supreme Court’s other World War II-era ruling concerning Japanese-Americans, Hirabayashi v. United States, held that racial classifications were to be subjected to the most exacting scrutiny under the Fourteenth Amendment at the same time that it upheld the West Coast curfew targeting Japanese-Americans.
I’m not going to spend much time on the chain of reasoning leading to this ghastly ruling, because why should I devote more attention to its logic than the chief justice and his clerks have? Here’s the short version: The Immigration and Nationality Act gives the president tremendous leeway to exclude aliens on national security grounds. But the Constitution prohibits establishment of religion and guarantees to all under its jurisdiction the equal protection of the laws. Moreover, the INA itself states that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” Coming from a president with any ability to think things he does not say, the exclusion would have been upheld with little controversy, aside from those concerned about the amount of discretionary authority Congress has delegated to the president. But that’s not the president we’ve got. The question, then, is whether traditional deference to the executive on security questions should be limited by the current president’s abuse of said deference, through his repeated statements displaying animosity toward Muslims. Five justices said to pay no mind to the Twitter-addled man behind the curtain; as long as there exists some “facially legitimate and bona fide” justification for the exclusion, the policy will stand despite the plethora of public utterances that suggest that the defense of the policy offered in litigation is a kind of Potemkin justification, meant to hide the overt bigotry that is really driving the policy decision.
Here was the Court’s opportunity to show the world that we had imbibed the lessons of Korematsu and had developed immunity to the tendency to let fear drive us to stereotype a discrete and insular minority. Instead, the majority generated another contender for the anti-canon of infamous Supreme Court decisions.
Recently I entertained the question of why Justice Anthony Kennedy continues to straddle the fence on the question of whether partisan gerrymandering violates the Constitution. Apparently his goal was to leave the mess for someone else:
Justice Anthony M. Kennedy announced on Wednesday that he would retire, setting the stage for a furious fight over the future direction of the Supreme Court.
Justice Kennedy, 81, has long been the decisive vote in many closely divided cases. His retirement gives President Trump the opportunity to fundamentally change the course of the Supreme Court.
Kennedy knows damn well that anyone nominated by President Trump will deem partisan gerrymandering to be beyond the reach of courts. By resigning at this moment, when North Carolina’s redistricting plan is pending at the Supreme Court, Kennedy guarantees that the plan, and other gerrymanders like it, will be upheld. Had he desired this result, he could have voted with the other four conservatives on the Court to produce it. Instead, he gets what I imagine to be the desired result–if it weren’t, he could have sided with the liberals and struck down the Wisconsin and/or Maryland maps–without the opprobrium of having his name on the decision.
Justice Kennedy’s legacy includes numerous rulings that have deviated from conservative orthodoxy and consequently have left him in the right wing’s crosshairs. Unfortunately, that legacy must also include his retreat from the battlefield on an issue resting at the heart of representative democracy, an institutions that needs all the help it can get these days.
In 2004, Justice Anthony Kennedy declined to join his conservative colleagues on the Supreme Court in giving carte blanche to legislative redistricting efforts rooted in partisan self-dealing. At the same time, he was unwilling to declare Pennsylvania’s congressional redistricting unconstitutional, because he needed a standard for identifying impermissible partisan gerrymandering that was more concrete than “I know it when I see it.” Political scientists subsequently rushed in to proffer workable quantitative indicators of partisanship in districting. But would exposure to these indicators convince Kennedy that he had, indeed, seen gerrymandering that had gone too far?
On Monday, the Supreme Court, in Gill v. Whitford, announced that everyone who had waited breathlessly for a definitive and politically earth-shaking ruling on redistricting would have to wait breathlessly for a while longer. Rather than use the egregiously gerrymandered Wisconsin state legislative district map as an opportunity to establish a rule to govern future districting efforts, the Court turned tail by holding that the challengers had failed to establish standing to sue. (The justices also passed on the opportunity to settle a challenge to a pro-Democratic gerrymander in Maryland.) The Wisconsin Democratic voters who had challenged the plan alleged that Republican line-drawing, which sought to maximize the inefficiency of Democratic electoral strength by dispersing some Democratic voters across multiple districts (“cracking”) and stuffing others into single districts (“packing”), had generated an unacceptably high percentage of “wasted” Democratic votes, in violation of the First Amendment’s right of association and the Fourteenth Amendment’s equal protection guarantee.
According to majority opinion author Chief Justice John Roberts, however, the challengers were not legally entitled to challenge the statewide plan as a whole. The right to vote is an individual right, but the alleged harm–that gerrymandering subverts representative democracy by skewing the translation of electoral support into legislative power–is one experienced collectively. As such, the remedy the challengers were seeking–an entirely new districting map that would produce election outcomes more in keeping with the statewide partisan balance of power–would extend beyond what is needed to address the injury. Plaintiffs, said the Court, could present evidence that the specific districts in which they reside had been subjected to packing or cracking, but not evidence pertaining to the state as a whole. And while legislative under-representation has adversely affected Wisconsin Democrats’ ability to influence statewide policy-making, that harm is one suffered by Democratic voters at large, and is not sufficiently tied to the particular challengers in this litigation.
While the Court collectively did not take a position on the constitutionality of gerrymandering, its announcement did offer a glimpse into the coalitions on each side of the question. Four justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), concurred in the standing decision, but wrote about the harms of partisan gerrymandering in a way that is highly suggestive of a desire to strike down the Wisconsin map. Two other justices (Clarence Thomas and Neil Gorsuch) would have dismissed the case without remand. Justice Thomas has previously held that partisan gerrymandering is not suitable for judicial review, and if Justice Gorsuch shares his judicial idol Antonin Scalia’s position on the issue, he would share Thomas’s view. That leaves three justices from the conservative wing: Kennedy, who apparently still hasn’t found a measurement of partisan gerrymandering he likes sufficiently; Roberts, who may be looking to keep his Court shielded from the partisan donnybrook that would inevitably ensue in the wake of a ruling on the challengers’ constitutional claims; and Samuel Alito, who surprised me by not joining the Thomas-Gorsuch partial concurrence.
As anti-climactic as Monday’s ruling was, it does not foretell defeat for anti-gerrymandering forces. The case now goes back to the district court, where the plaintiffs will have the opportunity to demonstrate the kind of particularized harm necessary to establish standing. Logistically speaking, the standing barrier should not be too difficult to overcome; recruiting one Democratic plaintiff from each legislative district should enable Democrats to cover their bases. Or plaintiffs could follow the blueprint laid out in Justice Kagan’s concurrence, and build their case around the First Amendment instead of the Fourteenth, as the Whitford plaintiffs had done. A more robustly developed associational argument not only could bring statewide data back into the picture, because Democrats live in every Assembly district, but also might be more attractive to Justice Kennedy, based on his historical willingness to entertain First Amendment claims, than an argument based on equal protection. (Indeed, Kagan quotes, perhaps with an eye toward eventually pulling in that fifth vote, Kennedy’s 2004 opinion delineating the associational harms caused by partisan gerrymandering.)
So while the Court has delayed a confrontation with the thorny question of whether the Constitution constrains districting for partisan advantage, it will not be able to defer this confrontation indefinitely. Litigants like those in Gill v. Whitford will once again present the best quantitative evidence that political science can muster. And once again, we will wait with bated breath for Justice Kennedy to get off the fence.
The Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, announced on Monday, was not the first time that confrontation with dessert has led to feelings of remorse later. But in reading the Court’s narrow ruling in favor of baker Jack Phillips, it’s hard not to think that the justices, lacking consensus on how to settle the conflicting constitutional claims, opted for the jurisprudential equivalent of dine-and-dash.
The central drama in this case centered on Justice Anthony Kennedy’s struggle to reconcile two legal principles he cares deeply about: preserving the dignity of LGBTQ individuals through the Fourteenth Amendment’s Equal Protection Clause, and protecting the First Amendment right of individuals to live according to the dictates of their faith. Would he, and four other justices, insist that Colorado’s anti-discrimination law, which includes sexual orientation, require Phillips to sell wedding cakes to same-sex couples on the same terms on which he would sell them to opposite-sex couples? Or would he, and a different group of four justices, hold that Phillips’ free exercise and free speech rights entitle him to refuse to sell cakes that would compel him to express a message contrary to traditional Christian beliefs on marriage? Kennedy’s internal conflict holds tremendous significance for those concerned (or hoping) that a ruling for Phillips would legally legitimate a wide range of religiously motivated discriminatory practices, and not necessarily against LGBTQ individuals alone. We don’t have to retreat into the mists of history to find people proffering religious justifications for objecting to interracial marriage.
The seven-justice majority, led by Kennedy (natch), did find a way to resolve this dispute while leaving Kennedy’s conflict unresolved. The Court sided with Phillips by overturning the Colorado Civil Rights Commission’s (CRC) holding against him, but it did not grant the religion-based exception to anti-discrimination law that he and his religious conservative supporters had hoped to obtain. The majority opinion acknowledged that religious and philosophical objections to same-sex marriage are protected by the First Amendment, but “it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
The majority ruled in Phillips’ favor because, in its view, the baker’s First Amendment rights had been infringed by the CRC’s hostility toward his religious convictions, thereby denying him a neutral hearing. The Court pointed to statements made during his hearing by some commissioners (though not, as Justice Ruth Bader Ginsburg noted in her dissent, by the administrative law judge who issued the initial ruling against Phillips, or by the appellate court that upheld the CRC’s ruling), as well as to the disparity between the handling of his case and those of bakers who refused clients’ requests for cakes featuring anti-gay messages. So all of the hair-splitting during oral argument about whether a wedding cake conveys its creator’s endorsement of the marriage, or of which wedding-related services possess sufficient expressive content to raise First Amendment issues, was discarded like so many souffles that refused to rise.
Vacating the state’s ruling leaves Phillips in the same legal position he occupied before Charlie Craig and Dave Mullins showed up in his bakery in 2012. If he refuses to bake a wedding cake for a same-sex couple and that couple files a claim before the CRC, that body will be compelled to provide a hearing in which his religious beliefs are not disparaged. (Whether same-sex couples will be seeking his services is another matter, given the publicity surrounding Masterpiece Cakeshop. But what LGBTQ consumers and their allies take with one hand, religious conservative consumers might give with the other.) Avoiding disparagement of defendants’ religious views shouldn’t be a very high hurdle for state adjudicating bodies to clear; as such, the Court’s ruling offers a narrow victory to Phillips and similarly situated actors. Whether other providers of goods and services, wedding-related or otherwise, will be able to discriminate and invoke a religious basis will have to await another case.
Postscript: While Chief Justice John Roberts joined the majority coalition in siding with Phillips, he didn’t join either of the concurring opinions penned by fellow conservative Justices Clarence Thomas and Neil Gorsuch. Roberts had joined the majority coalition in the 2014 Hobby Lobby decision, which allows closely held corporations to refuse, on religious grounds, to include contraceptive coverage in their health insurance plans, so we know that the chief justice is not averse to taking a broad view of free exercise of religion. Why, then, did he refrain from joining Thomas and/or Gorsuch, which he could have done without jeopardizing the majority status of the lead opinion?
When a capital defendant insists on a dubious, if vehemently professed, line of defense and his attorney insists on a strategy that concedes his client’s guilt in the service of sparing his life (see details here), what’s a Supreme Court majority to do? During oral argument in McCoy v. Louisiana, Justice Sonia Sotomayor, in siding with the defendant, Robert McCoy, relied on the principle that “[p]eople can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.” On Monday, five other justices adopted this position in holding that the Sixth Amendment requires decisions regarding trial strategy to remain the prerogative of defendants:
“We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty,” Justice [Ruth Bader] Ginsburg wrote.
A unanimous 2004 decision had permitted attorneys to concede their clients’ guilt in capital cases without having received explicit authorization to do so. McCoy, however, was different in that the client had explicitly instructed his attorney, Larry English, at every turn not to concede guilt. (Indeed, the attorney who went against McCoy’s wishes was the second attorney to represent McCoy, the first having quit over his refusal to adopt McCoy’s preferred defense.)
It is hard to feel confident that McCoy’s preferred course of action–claiming to have been victimized by a police conspiracy–would have been likelier to spare his life than his attorney’s strategy proved to have been. And it’s possible that existing structural disadvantages faced by criminal defendants might be exacerbated if the trained professionals advising them can have their advice casually tossed aside by clients who lack both knowledge of the law and critical distance, and may be suffering from undiagnosed mental disability or illness that could impair their judgment. Had English resigned rather than offer McCoy’s defense–an option ruled out by the trial judge–and had no other attorney been willing to offer it, would we think justice was being served by the prospect of McCoy’s floundering self-representation, even though the Supreme Court has recognized the defendants’ right to represent themselves?
But what seemed to swing the outcome at the Supreme Court centered on the defendant’s right to determine the ultimate goal of his or defense. English thought it reasonable to prioritize saving his client from whatever chemistry experiment Florida might have employed in his execution, instead of contesting his apparent guilt. But, as Ginsburg noted, McCoy might have thought it reasonable not to have to bear the stigma of having killed three family members, if there were some possibility that a jury might acquit him. He might have thought that execution was preferable to life in prison, which would shift the cost-benefit calculus overwhelmingly toward maintaining his innocence, however slender the odds of success. What mattered to the six-justice majority on the Court was that the defendant make the determination. Defendants delegate tremendous authority to their attorneys to make crucial tactical and strategic choices on their clients’ behalf, but they cannot be compelled to delegate the authority to decide the objectives of the defense.
So much of the public attention concerning voting rights has directed itself toward gerrymandering and voter-ID laws, and that’s understandable, given their profound impacts on the shape of the electorate and the ways in which votes get translated into political power. But this recent ruling from a federal court in Florida has the potential to alter the electoral landscape in a different, and no less profound, way:
The state of Florida routinely violates the constitutional rights of its citizens by its system of restoring or denying voting rights for anyone convicted of a felony, a federal judge ruled Thursday.
U.S. District Judge Mark Walker said the Florida “scheme” of restoring voting rights unfairly relies on the personal support of the governor for citizens to regain the right to vote. In a strongly-worded ruling, he called the state’s defense of voter disenfranchisement “nonsensical,” a withering criticism of Gov. Rick Scott, the lead defendant in the case.
“Florida strips the right to vote from every man and woman who commits a felony,” Walker wrote. “To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration … The question now is whether such a system passes constitutional muster. It does not.”
The policy at issue, adopted in 2011 by Governor Rick Scott, represents a departure from one adopted by then-Governor Charlie Crist in 2007 to streamline the process of restoring voting rights to felons other than murderers and sex offenders. Its guiding principle appears to be to restore voting rights to as few people as possible. The official policy imposes a 5-year minimum wait for felons who have completed their sentences and paid any restitution to petition for restoration, and this delay is compounded by the fact that the clemency board meets four times a year and typically considers fewer than 100 cases each meeting, thereby contributing to a backlog exceeding 10,000 cases.
What happens when the clemency board does meet can hardly instill confidence among believers in the rule of law. Each petitioner has five minutes (ten, if someone else is also speaking on the petitioner’s behalf) to explain to the board about why his or her voting rights should be restored, much as a Shark Tank contestant might pitch a business proposal to the panelists. The board may consider a wide range of factors in making its decision, but the policy provides no guidance as to how much weight each factor shall receive, or whether certain factors would automatically guarantee or preclude restoration. The result is a process in which a board dominated by the governor exercises arbitrary authority over a right central to modern conceptions of citizenship, and exercises its authority to favor those who share the governor’s political views .
To be sure, the ruling came from a federal district court, and there’s a non-trivial chance that either the Eleventh Circuit Court of Appeals or the Supreme Court will reverse. So opponents of state policies akin to Florida’s will have to temper their enthusiasm for the moment. But should this ruling stand, it will tilt the playing field in the foremost battleground state. Consider the demographics of the approximately 1.7 million Floridians–approximately one-tenth of its eligible voting-age population in 2016, or four times the national percentage–who are currently denied the franchise because of past felony convictions. Around one in five eligible black Floridians, or about three times the national percentage for African-Americans–would be affected by a liberalization of the restoration procedure. Then consider the expected partisan makeup of this group. Viewed through this prism, Florida’s Republican leadership has little choice but to defend the state’s unusually stringent procedures, lest the party leave itself vulnerable to becoming a minority party for the foreseeable future.
The district’s court ruling might also prove meaningful in two other ways, even if the Court of Appeals eventually reverses it. First, the First Amendment argument comprising the heart of the decision could be adopted by courts in other states where felon disfranchisement laws might be challenged. Second, it might, in conjunction with a ballot initiative this November that would greatly liberalize voting rights restoration, exert pressure on the state legislature to adopt its own reform, lest Florida’s voters opt for a more sweeping measure. But regardless of the eventual outcome, Judge Walker has done a great service in turning the spotlight on one of the more persistent remnants of a disgraceful era.