Tuesday, June 30, 2015
Saving Greece via Crowdfunding?
A peppy and refreshing story is making headlines today: a 29-year-old shoe salesman from London has started an IndieGoGo campaign to help Greece pay its 1.6-billion-Euro debt to the IMF.
For the campaign itself, click here.
I'm curious to hear what colleagues who teach European Union Law think about all this.
Strange Bedfellows #12: Closing Thoughts on The Science of Learning
This post is part of the Strange Bedfellows series.
In this guest blogging series, I’ve had fun identifying connections between canonical cases not ordinarily taught together. But is it any more than a parlor game?
For a teacher with years of familiarity with the cases, it can be invigorating to rearrange the furniture—and students always benefit from an invigorated teacher. The fear is that giddily wandering away from the orthodox doctrinal silos might create an obstacle for students who need to know and apply the orthodox solutions to problems. I’m convinced that when handled properly, exposure to these strange bedfellows actually leads to better comprehension of the orthodox approach. This is primarily because a semester with a healthy amount of unexpected (but valid) juxtapositions will inevitably take advantage of two strategies favored by researchers into the science of learning: interleaving distinct but related topics, and repeated exposures spread over time.
The silo approach (a unit on the Commerce Clause, followed by a unit on the Spending Clause, and so on) presumes that it would be unduly confusing for students to shift gears, hurting their comprehension. But studies show the opposite: interleaving the presentation of related but distinct topics results in better mastery of each topic. Learners understand the relationships among silos better, and also—perhaps unexpectedly—they understand each silo better.
In Make It Stick: The Science of Successful Learning (2014), authors Peter Brown, Henry Roedinger, and Mark McDaniel describe a study that compared different methods to teach students how to identify works by different painters:
Researchers initially predicted that massed practice in identifying painters’ works (that is, studying many examples of one painter’s works before moving on to study many examples of another’s works) would best help students learn the defining characteristics of each artist’s style. Massed practice of each artist’s works, one artist at a time, would better enable students to match artworks to artists later, compared to interleaved exposure to the works of different artists. The idea was that interleaving would be too hard and confusing; students would never be able to sort out the relevant dimensions. The researchers were wrong. The commonalities among one painter’s works that the students learned through massed practice proved less useful than the differences between the works of multiple painters that the students learned through interleaving. Interleaving enabled better discrimination and produced better scores on a later test that required matching the works with their painters. The interleaving group was also better able to match painters’ names correctly to new examples of their work that the group had never viewed during the learning phase.
Similar results occurred in a study teaching people how to identify different families of birds, how to hit different kinds of pitches, and how to solve different kinds of math problems. These tasks strike me as similar to what we expect law students to do: transfer the knowledge gained through study of past cases to help identify, categorize, and resolve issues when they arise in previously unseen circumstances.
However, the studies showing the power of interleaving also reveal a cognitive illusion: students who learn interleaved material routinely underestimate their progress when compared to the silo method. This is largely because the advantages of interleaving tend to reveal themselves slightly later in time. From Make It Stick:
The learning from interleaved practice feels slower than learning from massed practice. Teachers and students sense the difference. They can see that their grasp of each element is coming more slowly, and the compensating long-term advantage is not apparent to them. As a result, interleaving is unpopular and seldom used. Teachers dislike it because it feels sluggish. Students find it confusing: they’re just starting to get a handle on new material and don’t feel on top of it yet when they are forced to switch. But the research shows unequivocally that mastery and long-term retention and are much better if you interleave practice than if you mass it.
In my experience, students actually do not dislike the type of interleaving described in these blog posts and in my casebook, so long I am transparent with them about the logic. A few months into the semester they can feel the benefits of better comprehension and retention as they solve problems across silos. By the end of a semester, they know they are further ahead than they would have been, despite the initial feeling of unfamiliarity.
One advantage of interleaving is that it forces some delays and spreads given material over a larger stretch of time. Instead of studying everything about the Commerce Clause in a one week silo, it is studied a bit at a time over several weeks or months. Repeated work with a topic over time, with enough lapse between exposures for a little forgetting to occur, improves a student’s ability to later retrieve and apply the knowledge. This passage from Make It Stick describes some of the research:
For a vivid example [of the benefits of spacing out lessons] consider this study of thirty-eight surgical residents. They took a series of four short lessons in microsurgery: how to reattach tiny vessels. Each lesson included some instruction followed by some practice. Half the docs completed all four lessons in a single day. … The others completed the same four lessons but with a week’s interval between them.
In a test given a month after the last lesson, those whose lessons had been spaced a week apart outperformed their colleagues in all areas—elapsed time to complete a surgery, number of hand movements, and success at reattaching the severed, pulsating aortas of live rats. The difference in performance between the two groups was impressive. The residents who had taken all four sessions in a single day not only scored lower on all measures, but 16 percent of them damaged the rats’ vessels beyond repair and were unable complete their surgeries.
Why is spaced practice more effective than massed practice? It appears that embedding new learning in long-term memory requires a process of consolidation, in which memory traces (the brain’s representations of the new learning) are strengthened, given meaning, and connected to prior knowledge—a process that unfolds over hours and may take several days. Rapid-fire practice leans on short-term memory. Durable learning, however, requires time for mental rehearsal and the other processes of consolidation. Hence, spaced practice works better. The increased effort required to retrieve the learning after a little forgetting has the effect of retriggering consolidation, further strengthening memory.
In addition to Make It Stick, interested readers can consult two free online books about the science of learning:
- Susan Ambrose et al., How Learning Works: Seven Research-Based Principles for Smart Teaching (2010)
- Victor Benassi et al., Applying Science of Learning in Education: Infusing Psychological Science Into The Curriculum (2014)
The Link between Writing Style and Elite Consensus: Obergefell v. Brown
In his typically thoughtful post on Justice Kennedy's prose in Obergefell, Paul offers the following tongue-in-cheek advice to the Justices' clerks:
Before this opinion came out, I used to joke that all of Kennedy's current and former clerks should conspire together. Each should send him a copy of the Court's opinion in Brown v. Board of Education with a suggestive little note along these lines: "I reread this recently and thought of you. What a great opinion--short and simple with little grand emotion!"
Paul's point is that simplicity beats attempts at grandeur in prose when marking grand occasions, because grand words generally, if not inevitably, fail to capture the gravity of the moment.
Paul is surely correct, but I think that he underestimates the difficulty of achieving a simple style in the face of four dissenting votes. Warren could write a plain and dignified opinion because he had no need to respond to, or distract from, angry dissents with hand-waving citations to Confucius and Cicero. It is easier to achieve plain, stately prose when your colleagues are not spewing invective from the sidelines (Scalia) or offering dozens of pages of legalistic reasons crying out for response (Roberts). To offer plain, abstract statements and nothing more in the face of such opposition would seem insolent at worst and ham-handed at best.
Unanimity, not writing style, was Warren's great achievement. Warren struggled to get the votes of Stanley Reed, Fred Vinson, and Tom Clark, the Court's Southerners, precisely because he knew that the rhetorical power of the opinion hinged on its being the voice of a united Court and united national elites, North and South. In our polarized times, Kennedy did not have that option of achieving such unanimity. Our elites are divided over same-sex marriage, whereas the elites of the 1950s were solidly against Jim Crow in public schools. In the face of dissenting colleagues reflecting a dissenting public, Kennedy had to offer more than a simple manifesto of Roman simplicity. That the result is less rhetorically satisfactory and nationally unifying than Brown says more about the fractured times in which we live than about Kennedy's prowess as a writer.
Promising Signs of Foot-Voting in Communist China?
Citizens of Communist China, of course, lack the power to cast a meaningful ballot. But could they ever get a meaningful right to vote with their feet, by choosing to reside in a jurisdiction (city, town, county, district, province, etc.) that competes for their affiliation with respect for rights, decent services, low(er) pollution, and the like?
Such foot-voting has hitherto been suppressed by limits on information, limits on citizen mobility (i.e., the hukou system), and centralized control of the part cadres who run Chinese ostensibly "local" governments. But some hope-inducing cracks are beginning to show. The top two Chinese universities, Peking and Tsinghua, are accusing each other of poaching each other’s students with competitive offers of financial aid. Students who take the gaokao tend to be well-informed about China’s elite schools, so, if the Party leaders of rival universities fight with each other for recruits, then students’ foot-voting for the rivals could be a meaningful move towards – well, not democracy, but something better than the monopolistic oligarchy now governing the country.
An unusual role
During Monday's SCOTUSBlog opinion-announcement LiveBlog, a reader asked about how often Justice Thomas assigns opinions. And I realized that the answer is "not very often." Given seniority and the ideological/jurisprudential position of the various justices, Thomas only assigns the opinion if he is in the majority and the Chief, Scalia, and Kennedy (the three justices senior to him) are not. And that just does not happen very often. Thomas is in agreement (at least as to judgment) with the Chief 69% of the time, with Scalia 77 % of the time, and Kennedy 65 % of the time. And then he assigns only if he also has four of the justices who are junior to him (with whom, other than Alito, he agrees far less often) going along with him.
And I then realized that one of his rare assignments was Walker v. SCV. And he gave the opinion to Breyer, which is an interesting move. Ron Collins argued that Thomas's vote in this case may have been influenced by his unique perception of a racist symbol such as the Confederate Flag and how the First Amendment should treat such symbols. (Dahlia Lithwick and Garrett Epps made a similar point about Walker in a podcast and Epps wrote about it in the Atlantic). If so, one might have expected Thomas to keep the case for himself, precisely so he could talk about that unique symbol and how it might have affected the First Amendment analysis. Or we might have expected him to keep the case simply because he so rarely gets to assign.
Anyway, another unique feature of Walker, a case which could have some long-ranging effects.
Some movement in Alabama
1) Counsel for the plaintiff class in Strawser has taken the position that the stay on Judge Granade's class injunction lifted as soon as SCOTUS issued its opinion. Granade's order stated that the injunction was stayed "until the Supreme Court issues its ruling" in Obergefell, which happened at 10 a.m. Friday. Thus, the injunction--binding every probate judge in the state to issue a license to any same-sex couple who requests one and otherwise qualifies--is in force and readily enforceable by contempt. Unlike in Nebraska, there was no need for a motion to lift the stay.
2) Plaintiff counsel notified defense counsel of this view and asked defense counsel to notify each probate judge that they were subject to the injunction and could be subject to contempt proceedings if they failed to comply. Plaintiff counsel particularly noted the variance, including some probate judges waiting for SCOTUS to issue its mandate, others issuing licenses to opposite-sex but not same-sex couples, and others not issuing licenses at all.
3) The Association of County Commissions of Alabama, which provides probate judges with liability insurance, recommended "that probate judges begin issuing marriage licenses to same-sex couples in the same manner and pursuant to the same requirements applied to traditional couples." Not sure about that "traditional couples" phrasing, but you get the point. This is just a recommendation. But since the ACCA is the one that indemnifies the probate judges if they get sued, hit with attorney's fees, or held in contempt for non-compliance, the recommendation might carry some weight.
4) The Supreme Court of Alabama issued an order in the mandamus case reminding probate judges that the parties in Obergefell have 25 days to seek rehearing and ordering new briefing and motions to be filed by July 6. Presumably, the briefing on two points: 1) arguing that the mandamus must be vacated because its underlying reasoning does not survive Obergefell and/or 2) arguing that each probate judge should be released from the mandamus because each is bound by the now-enforceable district court injunction.
This order sent everyone scrambling to figure out what it meant. The confusion was compounded (naturally) by Roy Moore, who apparently believes that SCOTUS decisions do not take effect until the period for rehearing has passed. Moore first argued that probate judges were prohibited from issuing marriage licenses until the period for rehearing lapsed; he then said that no probate judge was required to issue licenses within that period, insisting that the issue is "stalled" in Alabama until SCOTUS can no longer grant rehearing. Of course, that ignores the fact that the real work in Alabama is being done not by Obergefell, but by Judge Granade's injunction, which became enforceable immediately.
Monday, June 29, 2015
So how are you doing after Glossip?
This is the question I’ve gotten all day long. I feel like a widow at a funeral, with well-wishers stopping by to pay their respects and offer condolences. Thank God I wore black.
For the record, my take on Glossip is that the Justices upheld the use of midazolam in executions because they wanted to. This shouldn’t come as new news (after all, this is how many, if not most Supreme Court decisions are made) but let’s just take a moment to call a spade a spade. The law didn’t make them do it. The facts didn’t make them do it. Indeed, both cut the other way, as Sotomayor’s dissent shows in painstaking detail.
For those who want the Cliff’s Notes version of this 127-page decision, the ruling in Glossip had two bases: (1) the district court didn’t err in finding that midazolam was likely to render a person insensate to pain; and (2) in any event, the petitioners didn’t meet their burden of showing a known and available alternative to midazolam.
I’ve already posted on the first point, and I stand by everything I said there. To understand how bad this ruling was on the merits, you really have to get into the weeds of the pharmacology of midazolam. Sotomayor does that in her dissent. The anesthesiologists’ amicus brief does that too. My sense is that the Justices in the majority just didn’t want to hear it.
Indeed, they all but say so, claiming that scientific knowledge pushes the boundaries of the judiciary’s expertise. True enough, but after Daubert, isn’t it a little late in the day to be figuring that out?
That’s all I have to say on the first point (again, other than what I’ve already said). Oh, and this—if you’re curious, just ask any doctor if they’d perform surgery, as in cut someone open, using only midazolam to make the person insensate. Do me a favor and let me know how that goes, we can swap stories.
That leaves the second point—that the petitioners didn’t show the feasibility of other execution methods in lieu of midazolam. The majority credits Oklahoma’s claim that it turned to midazolam because pentobarbital wasn’t available.
But pentobarbital was used in 15 of the last 17 executions, so someone’s getting it. Heck everyone’s getting it except apparently Oklahoma, which now has no need to get it because the Supreme Court said midazolam was just fine. That’s pretty important because a single shot of pentobarbital is what is used to put down pets, and what is used in physician-assisted suicide. There is virtually no risk of excruciating pain (other than that caused by inept executioners) because it’s not followed by drugs that cause excruciating pain.
But what about this required showing of feasible alternatives in the first place? The majority states matter-of-factly that Baze “imposed a requirement that the Court now follows.” Really? Where? The only place you can find such a thing is in the plurality opinion in Baze, which only three Justices signed onto—good luck finding the fourth and fifth votes for such a requirement. Here’s the real deal: the majority made a move, and tried to pass it off as precedent. It’s not.
But even if it was, that alleged showing comes from the claim that since the death penalty is constitutional, there must be a constitutional way of carrying it out. That’s more controversial than it might seem at first blush, but taking it as a given, there are plenty of ways to carry out a death sentence besides using midazolam, or even pentobarbital—firing squad, electrocution, and gas (all of which have been blessed by the Court) being chief among them.
Let’s be clear—Oklahoma is not saying that if it doesn’t have midazolam, it won’t be able to execute. This state has more lethal injection protocols on the books than any other state in the Union (5) and more different execution methods to choose from as well (4). The irony here is thick. If there’s any state that has readily available alternatives to a midazolam concoction, it’s Oklahoma.
I’m back to where I started. The Justices decided Glossip the way they wanted to, because they could. Sometimes we celebrate when they make it up, sometimes we lament. Over the past several days, I’ve done both.
I suppose that’s as good a note to end on as any. Thanks to Prawsblawg for the invitation to guest blog this past month, and thanks to the rest of you for reading.
The Most Dangerous Precedent (or, A Silly Extravagance)
In today’s concurrence to Glossip v. Gross, Justice Scalia identifies a precedent that “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.”
The villain is Trop v. Dulles, 356 U.S. 86 (1958), which held that it was unconstitutional to strip a native-born American of his 14th-Amendment-provided citizenship as punishment for briefly deserting his military post while serving in Morocco in 1944. (“He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base.”) The mischief arises from a passage frequently quoted from Chief Justice Warren’s plurality to the effect that the Cruel and Unusual Punishment Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Let’s leave aside that the Trop language is a tolerable paraphrase of Weems v. United States, 217 U.S. 349 (1910), which rejected an originalist approach to the Eighth Amendment to hold that fifteen years of hard labor for falsifying a public document was unconstitutional. Has Trop caused more mischief “to our society” than any other case that Justice Scalia can think of? Even if you disagree with the Trop language, at worst it means that a handful of persons can successfully challenge an extraordinary criminal sentence, and that a larger handful can make colorable but unsuccessful challenges to theirs. This is worse for society than any other case that the justice has decried? Than the decisions mandating a right to abortion, to sodomy, to same-sex marriage, or to coeducation at the Virginia Military Institute? No, society is most harmed by jurisprudence that prevents the government from getting as close as it possibly can to the very edge of cruel and unusual punishment.
In a post from last week, I argued that some fire-breathing dissents can be worth teaching in an introductory Con Law class. But now that Justice Scalia has declared, in his Obergefell dissent, that one should expect “separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression,” I need to add a note of caution. A silly extravagance like the overblown attack on Trop v. Dulles can teach students lessons that I would prefer not to impart: that it’s more important to sound good than to be correct (long live truthiness); that consistency is the hobgoblin of small minds; that picking your battles is for suckers; and that once you’ve risen to a prominent place in your profession, nobody can stop you from phoning it in. These lessons may have bits of truth to them, but I’d rather focus on others.
(Apologies for shooting fish in a barrel, but since we're talking about the quality of legal prose...)
Two thoughts on Paul's post about the prose in Justice Kennedy's Obergefell opinion:
1) If you had asked me as of 9:57 a.m. Friday, I would have predicted the vote would be 6-3, with the Chief joining the majority. And at least part of the reason I thought he would join the majority was to keep the opinion away from Kennedy--either by writing it himself or giving it to Justice Ginsburg--so as to get a narrower, less flowery, clearer, likely more Equal Protection focus.
2) Judge Posner's opinion, while a blast to read (at least if you agree with his conclusions), was criticized in some circles as similarly not placing itself within the ordinary (he uses "conventional") doctrinal framework. He did not commit to a standard of review, not resolving the fundamental rights questions, using cost-benefit balancing analysis that was neither heightened nor strict scrutiny, while insisting that the difference was semantic more than substantive. Posner's opinion is noteworthy for the way it tears apart (and makes fun of) the state's arguments in support of SSM bans. But Posner departs from the typical judicial style as much as Kennedy does.
Standing in the Arizona Redistricting Case: Some Initial Observations
There's much to be said about standing in Arizona State Legislature v. Arizona Independent Redistricting Commission. The Arizona Legislature, the Court held, had Article III standing to sue to remedy the "deprivation" of "its alleged prerogative to initiate redistricting."
Justice Ginsburg's standing decision for the Court is an important precedent for "an institutional plaintiff asserting an institutional injury." Writing in dissent, Justice Scalia would have held that Article III courts have no business deciding "suits between units of government regarding their legitimate powers." Coleman v. Miller, which seems to the contrary, was, in Justice Scalia's view, "a peculiar case that may well stand for nothing."
Now that Coleman's peculiar no longer, what's next for institutional standing? I'll offer some initial observations.May Congress sue the President for violating federal law? We're not deciding that, Justice Ginsburg pointed out as she noted "a suit between Congress and the President would raise separation-of-powers concerns absent here." In other words, to answer that question we can't look just at Article III.
What about individual members or a single house of the legislature? Does, for instance, the House of Representatives have standing to sue the Executive Branch? That depends on the separation of powers concerns that are unique to suits between the branches. It also depends upon how much it mattered that, as Justice Ginsburg took pains to point out, "The Arizona Legislature . . . is an institutional plaintiff asserting an institutional injury, and it commenced this action after authorizing votes in both of its chambers."
What about the states --- can they sue to enforce their sovereign rights against the federal government? In footnote 10, Justice Ginsburg said that an intersovereign suit "bears little resemblance to this case," but then suggested that cases on state standing are "'hard to reconcile'" and perhaps worth rethinking.
Justice Scalia would have answered "no" to all these questions. No less an authority than Chief Justice Marshall in Marbury v. Madison, after all, opined that "the job of the courts [is]. . . 'solely, to decide on the rights of individuals.'"
Seems like it's time to revise the job description.
Southern California Law Review on "Religious Acommodation in the Age of Civil Rights"
Not that it would be of much interest to anyone. I mean, it's not like it's been in the news much lately. But I commend to readers the new issue of the Southern California Law Review, which contains a number of interesting articles, of distinctly varied views, on this topic, stemming from a conference at Harvard Law School last year. A link to the Law Review page is here. Alas, the articles are kind of interspersed with other recent material in the journal, but the titles are pretty clear. I haven't read all the articles in it yet, but I can at least recommend those I have read, by Rick Garnett, John Inazu, Andy Koppelman, Steve Smith, and Mike Helfand. Other papers from the conference, published in the Harvard Journal of Law and Gender, can be found here. (I don't know how they determined which article would go in which journal.) Again, I have not read everything in that issue, but can highly recommend the articles by Mark Tushnet and Tom Berg.
A propos of John Inazu's article, I will just note that I think both Hobby Lobby and the next storm of religious accommodation cases and controversies make the question of pluralism an especially important one. In particular, I think it is the best source of ideas for those of us who continue to believe that there is an important role for religious accommodation (without prejudging here the limits of that accommodation), and who may want to find new language and arguments both to explain that view and to offer an alternative to some of the recent memes that have gained some popularity around these issues. It's not as if nothing has been written on the subject of pluralism before, but I think the subject is due to undergo something of a revival. I hope to write in that vein in the next little while, and I know John has a lot more to say on the subject.
A Hallmark of an Opinion: Justice Kennedy's Writing Style and How Much--or Little--it Matters
Although I think I disagree with him on some aspects of his post, I very much appreciate that Richard's post on Justice Kennedy's opinion in Obergefell doesn't simply line up on one side or the other of the usual "tastes great"/"less filling" debate on Kennedy as writer (or editor--I don't know how much Kennedy writes versus edits, although in the "big cases" the chambers voice is quite consistent). My sense is that Richard is positively disposed as far as the writing in Obergefell is concerned, whereas I opt for the "less filling" side. But Richard's post is mostly concerned with saying some more interesting things about the opinion and judicial opinion writing more generally. Let me try--mostly--to do the same thing here. I want to ask whether and how much it matters that Kennedy tried to write an opinion for "the people" instead of a more specialized audience. I conclude that the answer is: not much. An opinion on a deeply personal hot-button issue of this sort will attract attention regardless of how it is written, and a ruling that one favors on such an issue will receive praise regardless of how poorly written it is. Kennedy's continual striving after deep emotional affect in opinions of this kind is not only poorly accomplished, but mostly needless.
Just to lay my cards on the table at the outset, I don't think the writing in Obergefell--especially the most-cited, most-shared writing, such as the peroration--is very good at all. Andy Koppelman, long an ardent supporter of same-sex marriage, writes of it: "All of Kennedy’s worst traits—the ponderous self-importance, the leaps of logic, the worship of state power—were on display." It is noteworthy but not surprising that Kennedy's writing is often worst precisely in those cases where it clearly matters most to him. In those cases he displays the same failing as a writer regularly enough for it to be a pathology: The deliberate and strenuous effort to achieve the grandeur that he believes fits the occasion. The double-entrendre of the word "Hallmark" in the title of the post is intended. Why do we turn to Hallmark cards on important occasions, and why are they so trite? It's not because the occasions are unimportant or meaningless. To the contrary, experiences like love, marriage, and death are inexpressibly important and moving. Therein lies the problem. Writing that manages to convey something of that sense is great but passing rare. Most of the time, the wisest approach is simplicity and even silence. Generally, when one tries to do more than that, the words used are not only inadequate, but extremely well-worn. Hence, even sincere efforts end up in triteness. I'm not sneering at Hallmark. No wonder many of us, knowing our own words fail us, turn to it on such occasions! And, given those occasions, no wonder its hackneyed phrases are such poor tokens of our feelings.
When he waxes mystical or sentimental or homiletic, Kennedy cannot help but write Hallmark card sentiments. His peroration in Obergefell is one such instance. Given what I have said about the difficulty of expressing the inexpressible, one may sympathize--up to a point. By now, however, he ought to have recognized the problems of trying to do so, so hard and so earnestly. It's like attempting to hang-glide over a huge and gorgeous cliff: the idea is romantic enough, but there's no half-measure of success--just complete success or crashing disaster. Kennedy does not succeed--and an attempt at this sort of writing, if it fails, ends up in hackneyed and clichéd prose. He seems utterly incapable on these occasions, when deep feelings and his own historical legacy are at stake, of remembering that less is more.
In a roundabout way, this critique brings me to my primary point, one that is closely related to some of what Richard writes below. Before this opinion came out, I used to joke that all of Kennedy's current and former clerks should conspire together. Each should send him a copy of the Court's opinion in Brown v. Board of Education with a suggestive little note along these lines: "I reread this recently and thought of you. What a great opinion--short and simple with little grand emotion!" Perhaps he might be persuaded, or reminded, to write such an opinion in the SSM case. For surely it was clear that Kennedy would, and did, seek to write the opinion in this case for the American public--or at least for those citizens, not necessarily lawyers, who would judge his eventual legacy and place in history. Richard emphasizes this point and writes below, "[T]he key question is whether Obergefell speaks to the people." Famously, this was also the goal of Chief Justice Warren when he wrote the opinion in Brown.
Kennedy's peroration was indeed widely shared in what, for those of my class and political cohort, is the usual places: Facebook posts, The New York Times, Slate, and so on. But I wonder if that is especially good evidence that Kennedy's writing in Obergefell was a success. I doubt it, for two reasons.
First, consider Brown itself. Warren wrote a short, non-professional opinion in Brown with the intention that the whole opinion would be widely republished in full in newspapers, and read by millions of average Americans. And Brown does indeed matter to millions of Americans and command their loyalty and affection. But the fact is that Warren's opinion has always been more cited than quoted. And what is most likely to be quoted is not an emotionally affective sentence of the Kennedyesque sort, but a simple, dry, powerful legally oriented sentence: "We conclude that, in the field of public education, the doctrine of 'separate but equal' has no place." Warren never attempts to capture the emotional depths of the evils of slavery or segregation--sensibly enough, since it would be nearly impossible. The few sentences in the opinion concerning things like feelings of stigma suffered by children are still not of the Kennedy school of emotional "eloquence," and in any event they're not half as well remembered as the simple sentence quoted above. In Obergefell, Kennedy seeks not just to be read, as Warren did with Brown, but to be wept over, for the opinion to become a sentimental favorite and provide evidence of the writer's great sensitivity of feeling. Warren decidedly did not seek these things. But twenty years from now, I suspect that Brown will still be the better known and more fondly remembered of the two opinions. Warren made the wiser choice here.
What about all that glad and grateful sharing of the peroration? By no means do I wish to belittle the positive public reaction. (I will note, however, that in any other context, I would be quite surprised if so many of my peers would agree so readily that "no union is more profound than marriage," and in other contexts I could imagine a statement like that coming in for much criticism by the same people.) But I must discount it a little. I want to suggest here that almost any quotable sentence--good or bad, emotional or not, voicing this sentiment or some other idea altogether--that Kennedy wrote in an opinion making clear the constitutionality of same-sex marriage would be shared and praised by the same people, for the simple reason that it is a quote from an opinion upholding same-sex marriage.
Consider a couple of examples from Slate, which is more or less designed to embody the mainstream of professional/managerial-class, politically liberal or "progressive" opinion. Naturally, it hailed the last paragraph of Obergefell as "one of the most beautiful passages you'll likely read in a court case." Fully in line with Kennedy's almost certain hopes, the author notes that he teared up on reading it. This past fall, Judge Richard Posner issued an opinion upholding gay marriage in Baskin v. Bogan. Unsurprisingly, it was shorn of all the ponderously voiced Hallmark sentiments that Kennedy can never resist. But Slate, while recognizing that Posner was not appealing to those kinds of sentiments and certainly did not "sound like a man aiming to have his words etched in the history books or praised by future generations," liked it just as much, if not more, calling it a "deeply moral masterpiece."
I would suggest that one conclusion one might draw from the similar reaction to these two very different opinions is that it just didn't matter that much what Kennedy wrote. The ruling--not the sentiment, and certainly not Justice Kennedy's sentimentality--was the thing. That the paragraph was shared does not mean that it was good writing--with all due respect, it clearly is not--or that it managed to express the inexpressible (it didn't), or that it voiced just the right sentiment for the occasion. (Many people who shared it do not always believe that marriage is the most profound of unions.) It was shared because people were thrilled that the Court had just upheld same-sex marriage rights. Just about any phrase, sentimental or not, fresh or clichéd, conveying the basic result would have done just as well. What Kennedy did was far more important than what he said, or even whether he was attempting to speak to the public or not.
Of course, many people, lawyers most certainly included, don't care much one way or the other about the style, or writing competence, of a judicial opinion. I have no complaint about that. I do tend to be interested in those matters, and have been for some twenty years. In Kennedy's case, my interest is enhanced by a combination of the particular style--the strenuous reaching after grandeur--that he consistently adopts, the remarkable failure of those efforts in the hot-button cases on which he writes, the importance of those issues to me and others, the overwhelming amount of attention devoted to Kennedy and his words in legal and non-legal circles, his occasional tendency to talk about that fame in portentous terms, and the remarkable degree to which he continues making the same mistakes. For people who care about those things, it is understandable that his writing style and its shortcomings in Obergefell should draw attention. I have no problem with those who are not interested in the style of the opinion, who care only about the outcome or the quality of the reasoning; my disagreement is aroused only when what is evidently poor writing is praised as writing.
I will note, however, that many critics, including supporters of the outcome reached here, have on this and other occasions criticized Kennedy for, in effect, devoting more effort to reaching grand and emotionally affective language than to achieving clarity or logic in these cases. In the post I linked to above, for example, Andy Koppelman suggests that Kennedy's opinion in Obergefell suffers from "leaps of logic." One might forgive those lapses more readily if there was a strong public need for the kind of opinion Kennedy did write. To the extent that the real outpouring of public emotion comes from the outcome and not the language, however, that allocation of his time and resources seems all the more needless. Under the circumstances, why not aim for clarity rather than depth of feeling?
Texas responds to Obergefell
Texas Attorney General Ken Paxton has issued a non-binding opinion letter about implementation of Obergefell. Paxton concludes that 1) county clerks and their employees retain religious freedoms that may allow them to opt-out of issuing licenses to same-sex couples, but it will be fact-dependent and 2) State judges and county justices of the peace may similarly seek an opt-out, depending on the facts. The county clerk in Bell County followed the letter to announce that her office would issue licenses to same-sex couples, with individual employees able to seek an opt-out. Josh Blackman has detailed thoughts; Josh argues that this becomes a matter of staffing, rising to a constitutional problem only if no one in the office is willing to issue licenses to same-sex couples or if there are excessive delays or administrative difficulties.
I believe Josh basically has it right, although I would offer a few caveats.
First, as Josh notes and as I argued in a listserv discussion, dignitary harms caused by discriminatory delays or by being sent to a special line or a different clerk (to say nothing of the extreme case in which the clerk gives a lecture against same-sex marriage before moving the couple to a different line), may be challenged in an action for damages, even if the couple gets the license. The claim probably is worth only $ 1 in nominal damages, but it could proceed and could produce a judgment against the clerk and/or the office. There is a qualified immunity question that goes to the scope of Obergefell--does it mean there is a right of same-sex couples to obtain licenses and to marry in all respects on the same terms (vis a vis the State) as opposite-sex couples. A supervisory or municipal liability claim also is likely if the delays and dignitary harms were caused by employees carrying out formal policies.
Second (and this may be because my religious beliefs do not cause me to oppose same-sex marriage), even recognizing the administrative need, this makes me uneasy because it smacks bit of separate-but-equal. It relies on separate lines and separate clerks. Only it now is being presented as the least restrictive means for the government to satisfy its compelling interest in issuing marriage licenses to qualifying couples. I suppose if it is done respectfully (and a listserv comment indicated this has been working well in Utah), there is not a problem. But if we all can agree that a clerk's office could not have a special line for mixed-race or interfaith couples (assuming we can), why are same-sex couples and same-sex marriages different? Alternatively, could that concern be resolved by broadening the opt-out to extend not only to opposition to same-sex marriage, but also to other religious objections to other licenses?
Third, what happens if there is only one clerk in the office who will issue these licenses? Can he never break for lunch? Must the office, at least for marriage licenses, shut down for that hour? I do not imagine the office could say "No licenses to same-sex couples from noon-1 p.m."
U.S. Hostage Policy and the Need for a "Czar"
Yesterday, I attended a memorial service celebrating the life of Warren Weinstein, the father of a dear friend of mine. As was widely reported, Warren was an aid worker who was killed in a U.S. drone strike last January after being kidnapped in Pakistan and held captive by al Qaeda for more than three years. Many people spoke at the memorial about how remarkable Warren was--a true humanitarian, a great intellectual, a devoted family man, a generous mentor, and a loyal friend. Warren will be sorely missed by those who knew, loved, and respected him.
Barbara Mikulski, the senior U.S. Senator from Maryland, was among the speakers at the service. Sen. Mikulski, together with Sen. Cardin (Md.) and Rep. Delaney (Md.), have worked closely with the Weinstein family through this terrible ordeal. Sen. Mikulski discussed the policy changes that have come about in part because of Warren's tragic death. As discussed here and here, President Obama announced a policy overhaul last week that (1) authorizes the government, families, and third parties to communicate with captors; (2) ensures that families who pay ransoms will not face criminal charges; and (3) reorganizes the government's hostage recovery efforts.
While a step in the right direction, Sen. Mikulski believes that more should be done for the families of hostages. To that end, legislation has been proposed in both the House and Senate to create a "hostage czar" charged with coordinating and directing governmental efforts to secure the release of U.S. hostages held by terrorist groups. For families like the Weinsteins, knowing that someone in the government is waking up every day focused exclusively on bringing their loved ones home would go a long way.
Obergefell in Haiku
At McSweeney's, Daniela Lapidous has helpfully condensed each of the opinions in Obergefell to a haiku. Chief Justice Roberts, for example:
I support you all
No, really, I do, but this
Isn't our problem
For the rest, see The SCOTUS Marriage Decision in Haiku. (Hat tip to Leah Lee.)
Strange Bedfellows #11: Subsequent History Surprises
This post is part of the Strange Bedfellows series.
Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.
It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.
But I confess that I have not had the stomach to tell my students about some of them. Which of these would you put into your casebooks, and which stories would you save for the teacher’s manual?
Cooper v. Aaron
The issue in Cooper was whether the Little Rock School District could postpone further compliance with a court-approved desegregation plan. The tumultuous experience with the Little Rock Nine during the 1957-58 academic year involved so much “chaos, bedlam and turmoil” (in the words of the trial court that granted a postponement in Cooper) to justify a cooling-off period. SCOTUS unanimously disagreed. Desegregation must proceed as previously scheduled for 1958-59, and Governor Faubus and the segregationist legislature must get nowhere with their noises about not being bound by Brown v. Board of Education. State obedience to SCOTUS’s interpretations of the US Constitution is “indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us.” Score one for the federal judiciary.
Except that the desegregation plan did not proceed in the 1958-59 school year. Instead, the legislature authorized the governor to shut down any school if “an efficient educational system cannot be maintained because of integration of the races.” Using this power, the governor shuttered the four Little Rock high schools that were scheduled to desegregate, and the Arkansas Supreme Court upheld the order. Garrett v. Faubus, 230 Ark. 445 (1959). The postponement that Cooper refused to authorize occurred anyway.
The end came not through direct enforcement of Cooper, but through the political process. After a year without high schools, Little Rock began to rethink its commitment to segregation now that white families were personally experiencing the costs of maintaining it. In early 1959, an extreme segregationist who had joined the school board was removed from office through a recall election. The Little Rock Chamber of Commerce issued a statement urging the District to reopen its schools because continuing the controversy would be bad for business. The four closed high schools reopened in fall of 1959, and the desegregation plan slowly resumed.
This political process was no doubt affected by Cooper, but teaching Cooper as the end of the story paints a misleading picture. With its surprising subsequent history taught as part of the case, Cooper works better as a demonstration of how complex the constitutional system can be, rather than as a demonstration of the supremacy of judicial interpretation. As a result, Cooper strikes me as a case worth teaching with its subsequent history, or not at all. It may well be worth it for the next few years, since a potentially significant story will be whether Obergefell (and perhaps the Obamacare cases) end up generating political backlash comparable to that following Brown.
Palmore v. Sidoti
By contrast, I have not had the heart to use Palmore v. Sidoti to teach a related lesson about the limits of litigation.
In Palmore, a Florida family court awarded custody of a girl to her father because the mother had entered into an interracial relationship. The Supreme Court found this to be an invalid consideration: even if community prejudice might make a placement with the mother and her new husband stressful for the girl, the law cannot “directly or indirectly” give effect to private biases. (That point is similar to the reasoning in Shelley v. Kraemer, as discussed in a previous post.)
SCOTUS reversed the custody ruling and remanded the matter to the Florida state courts to make a ruling untainted by invalid racial considerations, but by that time, the father had remarried within his race and moved to Texas with the daughter (as allowed by the Florida custody award). The state trial court in Tampa relinquished jurisdiction to Texas, and the decision to close out the Florida action was affirmed on appeal. 472 So.2d 843 (Fl. App. 1985). I have been told that the Texas courts decided in unpublished opinions that it would be in the best interests of the child to remain with the father.
Assume for purposes of discussion that the Texas court considered only questions of family stability and not race. Nonetheless, one may wonder if the same result would have been reached had the Florida courts not originally removed the daughter from the house for constitutionally improper reasons; stability may have favored the mother in that alternate universe. The subsequent history makes Palmore a story about the limitations of individual rights litigation, and not about its glorious aspirations. This could be a valuable discussion, but I have been loath to tell my students how all of a lawyer’s principled hard work may not ultimately benefit the client, who sometimes becomes a martyr with little to show for her Pyrrhic victory.
After Carolene Products, the Filled Milk Act has been remembered in the Con Law canon as the paradigm of a law that has a rational basis. Except that as of today, it officially doesn’t.
As explained in Geoffrey P. Miller, The True Story of Carolene Products, 1987 Sup. Ct. Rev. 397 (1987), the Act was held to be irrational in Milnot Co. v. Richardson, 350 F.Supp. 221 (S.D. Ill. 1972), a case brought by the Carolene Products Company’s successor corporation. The government did not appeal. As a result, filled milk is now readily available online. No semester is complete without me drinking a can of filled milk while my students clutch their stomachs and gasp in fear for my nutritional safety. (Your students will never forget Carolene Products after that bit of show and tell!)
It’s been a hard choice, but I have chosen to keep the demise of the Filled Milk Act a secret from my students—it would cause too much cognitive dissonance. Yet it makes a potentially valuable exploration of how constitutional judgments can change—and whether they should. In Carolene Products (the famous one), Justice Stone said that “the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.” Evidently they did. The later invalidation of the Filled Milk Act can potentially be an interesting counterpoint to Shelby County v. Holder (2013), which similarly found that changed facts made a statute unconstitutionally irrational.
I’d be interested to know if you dare to share these subsequent histories with your students. And if there are other similar stories we should consider teaching.
The Machinery of Death Lives to Kill Another Day
The Supreme Court has just issued its decision in Glossip v. Gross, a petition on behalf of Oklahoma inmates along the familiar lines of tinkering with the machinery of death. After the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce (partly because European countries, disgusted with our retention of the death penalty, stopped exporting it.) As a solution to the problem of not being able to kill people, Oklahoma has introduced a substitute, the anesthetic Midazolam. This morning's decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method.
I hope that Corinna, who has blogged knowledgeably and extensively about various aspects of the decision, will chime in soon enough with interesting commentary. I just want to add a few words about the futility of this entire litigation avenue, which is based on perpetuating a farce for symbolic reasons.
As you, gentle readers, probably already know, the reason death row inmates and their attorneys have to resort to the "tinkering" line of arguments stems from the post-Gregg convention that the death penalty is constitutional in principle, and therefore there must be a constitutional way to administer it. The problem is that, in the search for such a way, we have tried and abandoned several methods. As Austin Sarat shows us in Gruesome Spectacles, there really is no good way to kill people: approximately 3% of all executions are botched. The line between an execution that "went well" and one that didn't becomes remarkably blurry with the modern, pseudomedical ways to kill people. Still, there are enough documented lethal injection cases in which things did not go as planned to remind us that, no matter how clean and medical they appear, all of these methods will essentially fail to achieve the impossible distinction between death and suffering.
But moreover, can we really say that an execution that "went as planned" is a victory? I remember telling students, who argued a version of Glossip last spring in moot court, that using the sentence "the execution was successful" was grating on my nerves (and surely of those of others who are uncomfortable with state-sanctioned killings.) You can't divorce death from suffering: death is suffering. And it is clinging to the farce that the two are separable that makes court decisions on this matter farcical as well. Today's decision complains about "activists" that have made the drug scarce--as if it is their obligation to mitigate the harm. It also finds that the inmates have not offered a better solution to the state, as if they should wrap the executioner's ax with velvet: "here, this might be more comfortable for me."
What would happen if we let go of the assertion that there must be a way to kill people? If we let go of incessant litigation about the technologies of death? If we let go of the immensely costly post-conviction mechanism in which death row attorneys, completely out of options that invoke a true fundamental conversations about the heart of the matter, have to juggle chemicals and contraptions arguing that no, this one ain't good enough, either?
(I should say: I don't fault litigators one bit for engaging in this chatter. You do what you can with what you have to zealously defend your client. The abolitionist movement contains multitudes, and it is okay to fight for one's client's life by any means necessary while others continue to tackle the death penalty itself.)
The tenor of today's decision, which clings to the moral imperative to kill people in the face of medical and scientific evidence that doing so is truly not possible without flukes and silences the truth behind the farce, that death and suffering are inseparable regardless of whether the executions is regarded as technically "botched", further supports my conclusion from the last couple of years of this, namely, that the death penalty will not, itself, be executed. It will die a slow, costly death from a chronic disease--much like the inmates at San Quentin.
Sunday, June 28, 2015
Rhetoric and Reason in Obergefell
It’s not the most important thing about Obergefell—or even the second most important—but it’s noteworthy that rhetoric played a remarkably overt role in the Court’s opinions, particularly in the sharp criticisms leveled by the dissenting justices. I offer a few thoughts below. By way of disclosure, several years ago I clerked for Justice Kennedy, author of the Obergefell majority.
1. Speaking to the People. Justice Kennedy’s majority opinion proceeded under due process and equal protection but eschewed doctrinal categories like strict scrutiny. This may strike some lawyers as odd—and it certainly flummoxed some of the dissenters. As Chief Justice Roberts complained, the majority opinion lacks “anything resembling our usual framework for deciding equal protection cases,” which he called “casebook doctrine.”
But there’s a fairly apparent reason for Obergefell’s lack of lawyerly terminology: this is the rare opinion that is actually going to be read by large numbers of non-lawyers. And regular people won’t ask whether Obergefell reads like a casebook or has jargon phrases like “strict scrutiny” and “least restrictive means.” Instead, most people will want to understand the reasons beneath the jargon. Those reasons, like Obergefell itself, could well outlast whatever doctrinal categories and buzz phrases are popular today. So the key question is whether Obergefell speaks to the people. History will judge Kennedy’s rhetoric against that standard.
2. Civility in Disagreement. The majority opinion also illustrates Justice Kennedy’s view of how to express judicial disagreement. As others have noted, the overall tone of the dissenting opinions is unusually sharp, and Justice Scalia seemed intent on breaking his own records for stridency. But while Scalia uses terms like “pretentious” and “egotistic” to describe the majority, the majority does not respond in kind.
Scalia himself gives a reason for this when he notes that “[i]t is one thing for separate concurring or dissenting opinions to contain extravagances,” but “something else for the official opinion of the Court to do so.” Scalia makes this point in the course of calling the majority “silly.” But, perhaps unintentionally, Scalia’s observation suggests that he feels free to let off steam in Obergefell precisely because he is in dissent.
Still, Obergefell is restrained even by the standards of majority opinions, as it doesn’t directly respond to the dissents at all. This unilateral disarmament may understandably strike some readers as confusing or disappointing, but it’s no accident. Throughout his long career, Kennedy has usually avoided directly responding to dissents, or even acknowledging that they exist. This restraint is especially remarkable when you consider how easy it would have been for Kennedy to fire back at Scalia.
At one juncture, however, Kennedy did obliquely respond to the dissents. In the fact section, the majority notes that lower courts have recently written extensively on the constitutional issue of same-sex marriage. And, in making this point, Kennedy emphasizes that lower courts have debated the issue “without scornful or disparaging commentary.” Some might well disagree that every lower court decision actually exemplified civility. Be that as it may, the intended message here seems plain: why can’t civil discourse prevail in the highest court in the land?
3. Disagreement about Disparagement. Given what I’ve said so far, it’s ironic that the only explicit accusations of disrespectful rhetoric are leveled by the dissenters against the Obergefell majority. The most serious example appears in the Chief Justice’s dissent, which accuses the majority of launching “apparent assaults on the character of fairminded people.” The Chief labels these assaults “entirely gratuitous” and argues that the Court portrays everyone who doesn’t agree with it “as bigoted.” The Chief even asserts that “the majority feels compelled to sully those on the other side of the debate.” Justice Alito makes a somewhat more modest point, asserting that the majority opinion “will be used” by unnamed third parties “to vilify” same-sex marriage opponents, who henceforth “will risk being labeled as bigots.”
Perhaps Alito is correct that some people will “use”—one is tempted to say, misuse—the Obergefell majority to disparage individuals with sincerely held views. People appropriate the ideas of others for many purposes, after all. But the Chief’s accusation that Obergefell itself engages in such disparagement seems unfounded. By way of illustration, here is a sentence from Justice Kennedy’s majority opinion:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.
I'm open to hearing other interpretations, but to my ears, that sounds like an extraordinary effort to maintain civility and respect in the face of strong disagreement. To be sure, Kennedy also writes that the denial of same-sex marriage rights “demeans,” “stigmatizes,” and “disparage[s]” same-sex couples and their children. But those statements aren’t an accusation of bad intent so much as bad effect. It's not an accusation of bigotry to say that a law is demeaning to those it harms.
To some extent, the disagreement here has to do with one’s point of view. That is, Kennedy largely takes the point of view of same-sex couples, whereas the Chief and Alito focus on the perspective of same-sex marriage opponents. But it's entirely normal to adopt the viewpoint of rights holders in cases about constitutional rights—not the viewpoint of offended third parties. In any event, the majority’s different perspective is consistent with civility, not proof of its absence.
* * *
Justice Kennedy is bound to have a controversial jurisprudential legacy, and Obergefell will feature prominently in it. In evaluating that legacy, commentators should consider Kennedy’s attempts to foster civility, even during fervent legal disagreements.
Is the question moot?
Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.
This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.
I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.
But this seems a dodge when litigation is already pending and when the district court already has entered an injunction prohibiting enforcement of this particular law. The point of Obergefell is to make clear that the district court decision and injunction both were correct. It seems appropriate to allow that declaration about Nebraska law and that injunction (which, as I have argued, only affects the plaintiff couples anyway) to take effect in light of Obergefell. Otherwise, wouldn't most cases become moot after many GVRs?
Of course, this just may be one more way in which marriage-equality litigation is unique. We have multiple states with identical laws all being challenged at the same time by plaintiffs seeking to engage in identical conduct, with one Supreme Court decision resolving the constitutional of every law in every state as to all possible sets of facts. That is not true of all constitutional litigation.
Sentencing, Vagueness, and Facial Invalidation in Johnson v. United States
In a rare decision that will earn plaudits from both the defense bar and many government attorneys, Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague. Enjoying a kind of personal vindication, Justice Scalia wrote for the six-justice majority and so got to turn several of his prior dissenting opinions into the holding of the Court. By contrast, Justices Kennedy and Thomas would have found simply that the statute didn’t apply to this defendant. Finally, Justice Alito dissented on grounds partly endorsed by Kennedy and Thomas.
I’ve covered Johnson before. In short, I’ve basically argued that the Court’s repeated interactions with the residual clause are what rendered it vague. That explains why, for nearly 30 years, the allegedly vague residual clause has been able to function on such a massive scale, including during numerous trips to the Court. Only recently has there been any serious interest in finding the residual clause to be vague, for only after the clause had generated repeated judicial opinions did that vagueness come to exist.
So that means that I tend to agree with important features of both the majority and the dissent in Johnson: the majority is right that the residual clause is vague today, but the dissent is right that the vagueness is the judiciary’s own doing. This raises the question: what to do about it?
The majority argues that the entire residual clause must be declared unconstitutional. By contrast, Alito proposes two ways out of the bind. Though six justices disagreed with this aspect of Alito’s opinion, both of Alito’s proposals are thoughtful and reward serious consideration.
Alito’s first proposal is to revisit the Court’s whole approach to the residual clause. Instead of asking whether a predicate offense poses a substantial risk of violence in the typical case, Alito proposes asking whether each offender’s actual conduct in fact posed such a risk. But that approach would require overruling or narrowing a decision from 1990 that the Johnson majority says was correct as a matter of statutory interpretation. Perhaps more significantly, it would be a bold move for the judiciary to reboot this area of law after so plainly failing to manage it in recent years. While doing so might arguably be legally correct in some sense, Alito may not give his colleagues quite enough credit in criticizing them for being “tired” of handling these cases.
Alito’s alternative proposal is even more interesting. Quoting strongly supportive case law, Alito argues that facial invalidation is inappropriate in due-process vagueness cases unless a statute is vague in all its applications. And, Alito continues, the residual clause isn’t vague in all of its applications, since some crimes—like attempted rape—are surely violent in the normal case. The majority responds that the precedent Alito quotes, while clearly supportive of him, is dicta. Further, even paradigmatically vague laws that have been facially invalidated—like proscriptions on “annoying” public behavior—aren’t vague in every single one of their applications. After all, everyone knows that spitting in someone’s face is annoying. The Court accordingly narrows its own precedent on facial invalidity by reading the relevant statement as a mere “tautology.”
This reasoning about facial invalidation may be the most doctrinally far-reaching aspect of Johnson’s holding. Not only does it arguably change the baseline rule for remedying an important category of due process claims, but the Court’s reasoning also supports making facial invalidation more broadly available in general. As Alito points out, his preferred vagueness rule “is simply an application of the broader [Salerno] rule that, except in First Amendment cases, we will hold that a statute is facially unconstitutional only if ‘no set of circumstances exists under which the Act would be invalid.’” Alito suggests (or hopes) that the Court’s refusal to follow Salerno’s logic is confineable to vagueness, but it may not be.
In this respect, Johnson is a companion to this term’s Fourth Amendment case Los Angeles v. Patel, which also allowed a facial claim. In his Patel dissent, Scalia noted almost in passing that the claim there “must fail because the law is constitutional in most, if not all, of its applications. See United States v. Salerno, 481 U. S. 739, 751 (1987).” In retrospect, Scalia’s choice of language in Patel may be significant. As Alito rightly points out in Johnson, Salerno said that facial invalidation is generally appropriate only if a law is valid in “no set of circumstances,” whereas Scalia's Patel dissent seems to allow for facial invalidation when a law is invalid in “most, if not all” situations. So perhaps Johnson was meant to be a blow against Salerno after all.
Notably, Scalia’s opinion for the Court presents a certain irony. On the same day that Johnson came down, Scalia dissented in the same-sex marriage case Obergefell v. Hodges on the ground that the Court lacked legitimate authority to override the political system based on due process and about fifteen years' worth of experience with same-sex marriage. Yet in Johnson, Scalia led the charge in invalidating a federal statute based on due process, while also overcoming stare decisis based on a scant “[n]ine years’ experience.” Obviously, these cases are different in many ways. But still, a little ironic.
Courts now have to grapple with the question of remedy: who will get out of prison because of this decision? For thoughtful discussion of the practical fallout, see this short piece by Leah Litman, as well as posts over at SentencingBlog. And, of course, Johnson also raises important questions for legislators, since Congress might try to fashion a less vague replacement statute and thereby restore the punitive policy that the Court has now undone.
Saturday, June 27, 2015
More on SSM in Alabama
According to WSJ, Alabama Attorney General Luther Strange (who remains under a district court injunction not to enforce the state ban), announced "While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land." Although the Association of County Commissions yesterday recommended that probate judges wait for further word from either SCoA or Judge Granade, probate judges in many parts of the state declined to listen, including in Birmingham and Mobile. Four counties have refused to issue licenses to same-sex couples and eight are not issuing licenses at all.
Always read beyond the headline
Admit it. How many of you see this headline--Alabama judge: Marriage ruling worse than segregation decision--and thought Roy Moore was talking about Brown?
More of what happens next (Updated)
A follow up to this post and more details:
1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.
2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."
3) I want to say a bit more about the remarks by Mississippi Attorney General Jim Hood that "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction. I said this was inartfully stated, but basically right. And it goes to the basic distinction at work here, between precedent and injunction (and the question of its scope).
The Supreme Court's mandate requires district courts in four states to issue injunctions against enforcement of the laws in four states by some defendants as to certain plaintiffs. None of them are in or about Mississippi. There is an injunction barring the Governor and A/G of Mississippi from enforcing that state's ban as to two couples; that injunction is presently stayed, meaning they are not obligated to comply with the injunction and to issue licenses to the two named couples until that stay is lifted. So Hood is correct as a matter of the law of injunction.
But Obergefell is precedent, binding on all courts, even those in Mississippi, that bans on same-sex marriage are unconstitutional. So any other couple in the state could have filed a new lawsuit against Hood seeking an injunction prohibiting continued enforcement of Mississippi's ban and compelling issuance of licenses; that court would have to issue the injunction, under the binding authority of a SCOTUS decision. The judge might be swayed by the continuing Fifth Circuit stay, but perhaps not; since the stay was in place pending Obergefell, the district court might feel free to issue a new injunction now that SCOTUS has spoken. So Hood is incorrect as a matter of the law of precedent.
The point is it is not as simple as saying Hood is wrong or issuing dangerous advice, as someone says in this article. Hood is right that the existing injunction does not take effect until the stay is lifted--but that only applies to two plaintiff-couples. He is wrong that SCOTUS precedent is not yet effective in the state, as a matter of influencing a court in a new case.
According to this story, Louisiana Governor (and GOP presidential candidate) Bobby Jindal essentially made the same argument as Hood--no mandate has issued for Louisiana to issue licenses, thus Louisiana officials are under no obligation to issue licenses to same-sex couples. And like Hood, he is right, unless and until a federal judge slaps an injunction on Jindal and others.
Critical Theory and Ideological Drift: Normal, Mutual, and Potentially Productive
It takes a while--a very long while, sometimes--for serious analyses of a new Supreme Court opinion on a socially contested issue, let alone one often cast as the contested issue of our times, to shake out and emerge from the welter.
There is a kind of common pattern to events. First comes the unstinting praise, the joy and relief, the casual forgetting of inconvenient predictions--and, on the other side, outrage, defiance, scorn, calls for constitutional amendment, the campaign posturing, and so on. Perhaps a few voices emerge, a couple centrist and a couple radical, with serious critiques, but they are rare and rarely heard. Certainly, given the usual divvying up of sources in news stories between the representatives of liberal conventional wisdom and those of conservative conventional wisdom, those views rarely gain any hearing outside limited niches. People who support the outcome but question some of the reasoning, or much of the writing, are also often understandably wary of speaking too early. They do not want to spoil the moment, or be misunderstood as not supporting the cause. They also fear professional obloquy for going against the consensus; they know that in the academy as elsewhere, one is generally better off being conventional or silent on such matters rather than taking the risk of unconventionality. Or--somewhat like me--they think of profound wrongs and injustices done to the group served by the opinion, weigh the little wrongs of the opinion against the greater good gained and joy felt, and are reluctant to seem like spoilsports, even though they know that this is surely not a sound academic consideration. A conventional wisdom emerges and solidifies. The discussion that follows later may be more credible and thoughtful, but now faces an uphill battle.
In the medium term, over the next year or two, one can expect much of the constitutional law division of the academic corps to turn to what one might call its primary job description in our times: serving as a kind of collective esprit d'escalier for Justice Kennedy. A similar call to duty arose after United States v. Windsor was released. Volumes of articles since then have sought to rewrite Kennedy's opinion in Windsor, to explain what it "really" meant, to uncover its purported hidden genius, to argue more or less convincingly that it's much better or clearer than people have said--or, failing all that, to defend the virtues of obscurity in judicial opinion writing. It is astonishing how much of the legal academy and its resources have become devoted to serving as post-issuance re-drafters of the opinions of one lone judge. Some time after all that, the real work of analysis may begin--although now, as I said, it will labor in the face of the headwind provided by the conventional wisdom that by now has already formed.
All this is to say that I'm holding off for a while on offering my broader thoughts about Justice Kennedy's opinion in Obergefell, other than to note that it is shorter than I expected but still suffers from Kennedy's usual failings as a writer, that I am very glad at the outcome but not enough so to treat poor writing as great writing, and that this case will be much easier to teach than Windsor.
I did, however, want to pick up on Jack Balkin's post from yesterday titled Sam Alito, Critical Race Theorist. Balkin writes, on the evidence of Alito's dissent, that "social and religious conservatives are reviving left-wing arguments made in the 1980s and 1990s by radical feminists like Catherine MacKinnon and by critical race theorists like Mari Matsuda." He concludes, on a note of--what, exactly? Amusement? Disbelief? Scorn? None of the above?--as follows: "Sam Alito as Mari Matsuda and Catherine MacKinnon. Talk about your ideological drift."
Although I saw it somewhat differently, I agree in general terms. I am moved to point out that I wrote something similar three weeks ago. There, I focused less on Critical Race Theory in particular than on critical legal theory more generally. I wrote, similarly if more cheerfully:
The scholarly legal analog to the "left-wing postmodernist criticisms of truth" and "Continental intellectual"-aping literature that McIntyre refers to above is Critical Legal Studies. As I've suggested elsewhere, in the fields that I'm most concerned with, especially law and religion, the most fertile population for such skeptical criticism these days comes from the right, not the left. There are a variety of reasons for this, I'm sure, but I suspect the most important one is that conservative positions on these issues are now more clearly minority positions than they used to be in the legal academy (as opposed to the courts themselves, although the ground may be evening up there as well). Insofar as CLS was born and used in large measure as a device for fighting guerrilla actions by undermining and sabotaging the overly confident assertions and assumptions of the majority, it makes sense that it would now be more useful for legal conservatives. In my view (see the linked article above), Steve Smith has for a long time made particularly productive and skillful use of it in his work. . . . I would not be surprised if its use increased on the right in public/constitutional law scholarship. This is a good thing, in my view, and has been little remarked upon.
I do not mean to minimize the differences of detail or perspective between our two posts. Among others, I focused on "CLS" while Balkin focuses on "CRT." Still, I am understandably receptive to the argument that some of the ideas that characterized critical legal theory of either variety in the 80s or early 90s, or some of the identity politics of that era, are now re-emerging on the right side of the field. I think it sensible and unsurprising. I do not think it takes much cheek on Alito or anyone else's part. There is no doubt that Alito is not one's idea of an "outsider." But then, neither is Hillary Rosen. Such is the nature of American pluralism, of shifting social tides, and of the vast and varying circles of the American elite, that its members may feel, rightly or wrongly, simultaneously like insiders in some arenas and outsiders in others. In any event, as I argued in the earlier post, critical approaches are in large part strategic devices, and it makes sense that individuals or communities within the legal or political sphere that consider themselves to be fighting a rearguard action will take up the tools that fit their perceived position.
Apart from agreeing in broad terms with Balkin while thinking that this is neither terribly surprising nor especially "rich" of Alito, I do want to offer two somewhat different points. First, Balkin focuses entirely on Alito and on "social and religious conservatives," and not at all on the majority, or on liberalism or the left. As I suggested in my earlier post, however, one may expect to see reversals or "ideological drift" on both sides. In an era in which the Court and the legal establishment were viewed by the left as bastions of conservative ideology, it was not uncommon to see writing that critically challenged the clarity, determinacy, or the very meaning of general values like the "rule of law" and mocked rote invocations of those values as pompous, credulous, strategic, manipulable, deliberately obscuring of true power relations, or all of the above. In contrast, these are the days of frequent naive enthusiasm among liberals on the left about the rule of law and of capacious legal values like equality or dignity; of regular invocations of those terms and values without much critical second thought; and of appeals to legal approaches, like originalism, that used to be the sole province of the right and the target of specifically "critical" criticism on the left. Ideological drift, like Freaky Friday, generally involves two partners switching places.
Second, let me suggest that in the longer run, once the initial run of praise, condemnation, and rewriting has taken place around Obergefell, there will be a continuing role for critical theory, of the CLS or especially the CRT variety, that involves more than just poking fun at Alito or giving new strategic tools to the right. It is neither a controversial nor, as I am making it here, a critical or negative point that the decision to treat SSM as the spearhead of the movement for LGBT rights was a strategic one, and that part of the goal involved focusing on an issue and an institution seen as solidly bourgeois and middle-class. Although considerable consensus emerged around this issue for various reasons, including both sincerely held views and strategic ones, as well as the lockup of financial resources within the movement, it was the subject of significant initial debate within the LGBT community. There remain critics who worry about the reification of institutions, like marriage--that most profound of unions--that ought to be queried, queered, or even eliminated. For the most part, and whatever their self-conception may be, American progressives are basically bourgeois individuals with solid middle-class values. They talk more these days about economic inequality and reform, but end up doing and achieving more on non-economic social issues that concern themselves and their own interests (although those interests are certainly also shared by others outside their class). They would rather win with Hillary than lose with Warren or Sanders, and that means focusing on social and culture-war gains and once again relegating more thorough or radical economic reform, let alone the serious rethinking of basic social institutions or conventional power relations, to the sidelines.
None of this ought to be surprising, although it is raised nowhere near as often as it might be. I do not raise it here for purposes of criticism or derision. My point is simpler than that. Surely, beyond simply pointing to Alito and likening his words to those of critical race theorists of the past, there will remain a more serious and fertile task for the remaining devotees of CLS or CRT. Obergefell is an obvious rich subject of analysis and criticism through lenses of that sort. The decision, and our generation, surely merits a new and equally applicable go-around with some old ideas. No doubt an article is out there just waiting to be born, with the title of Obergefell and the Interest-Convergence Dilemma.
Friday, June 26, 2015
What happens next?
I still have not had a chance to read Obergefell, but I wanted to throw together a quick post on what is happening in the decision's immediate aftermath. This Slate piece collects responses from governors and AG's in several states; in ten states, the executives announced that they would immediately implement the decision and begin issuing licenses, which happened almost this morning and afternoon in a few places (includes photos).
Other states appear ready to at least demand that the process run its course. As a commenter on my earlier post noted, Mississippi's A/G, Jim Hood, told circuit clerks not to issue licenses; he said "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction, which Hood suggested might take longer than many expect. This is inartfully stated, but actually correct. The Court's actual mandate is not directly binding on anyone in Mississippi with respect to anyone in Mississippi, who were not parties to the case. Hood overstates it, however, in that any new couple could initiate a new lawsuit against Hood and a circuit clerk and obtain an injunction in light of Obergefell as binding precedent. In any event, it should not take long--the attorney for the plaintiffs has already indicated his plan to file a motion to lift the Fifth Circuit stay, which should be immediately granted.
And what about Alabama, my favorite bastion of procedural nuance? No official word yet. The probate judge in Pike County announced that he would no longer issue marriage licenses to anyone, insisting that the state law empowering probate judges to issue licenses uses the word "may," giving the judge the discretion whether to issue licenses (so long as he does not discriminate). The Alabama Association of County Commissions recommended that probate judges accept applications but delay issuing licenses until resolution of both the Supreme Court mandamus and the stayed federal injunction. I expect the federal plaintiffs to quickly lift ask Judge Granade to lift her stay of the injunction, against a defendant class of all probate judges in favor of a plaintiff class of all same-sex couples; doing so will immediately bind all probate judges to issue licenses on equal terms to all couples. And I imagine someone will ask the Supreme Court of Alabama to vacate its mandamus, since its reasoning has been superseded and cannot stand after Obergefell. And if the court declines, look for someone to ask SCOTUS to stay the injunction, if not to summarily reverse it.
Two Cheers for Obergefell
Today’s decision in Obergefell raises an interesting conflict between constitutional substance and constitutional process – or, put another way, the conflict between recognizing that a change is due and bringing about that change in the right (meaning democratic) way. On the whole, as I explain after the jump, I regard Obergefell as a minor setback for gay and lesbian equality, but probably an inevitable and necessary one.
On one hand, as a matter of substance, I am elated, like many others, that gay and lesbian equality has won such emphatic recognition from the SCOTUS. I have been rooting for judicial promotion of the cause for a long time. Twenty-three years ago, Jean Dubofsky, my then-boss, argued Romer v. Evans before the SCOTUS. (I had the privilege of sitting in the second chair and watching her face light up when Kennedy told Colorado’s SG, Tim Tymkovich, that Kennedy thought James v. Valtierra was not apposite).
On the other hand, it seems to me that Obergefell provides political cover for the enemies of gay and lesbian equality. Now, instead of having to defend anti-gay policies on the merits, they can invoke the principle of popular sovereignty, piously disclaiming any opinion on the merits of the controversy while vociferously insisting that it is the right of the people to decide the question. If I were the chair of the GOP, I would greet Obergefell with intense relief, anticipating that now would be able to pander to my evangelical constituents on procedural grounds while avoiding the alienation of suburban seculars, simply by trotting out the “anti-judicial activism” script.
It is also hard to see how the legitimacy of gay and lesbian equality is advanced by a 5-4 decision from SCOTUS. Such a decision cannot add much to the victory being achieved in the state legislatures, where the enemies of equality are suffering repeated defeats. It seems plain to anyone who reads the newspapers that laws discriminating against same-sex couples are on the fast garbage truck to the landfill of history. The best way to discredit bias against same-sex couples – or so it seems to me – is to promote democratic internment of such bias by statute and ordinance. These laws would make it unmistakably plain that those opposed to gay and lesbian equality stand against a solid majority of Americans – the worst of political sins in a land ruled by popular sovereignty.
Instead, SCOTUS stole democracy’s thunder, dashing in at the last minute to declare a victory already won by democratic means.
Nonetheless, I believe that Obergefell, although providing no great benefit for the cause of gay and lesbian equality, was probably unavoidable.
The reason is that it is now impossible to write an opinion upholding discrimination against same-sex couples using conventional “rational basis” arguments. The arguments against gay and lesbian equality have become so threadbare, so empty, that they cannot be read with a straight face. There are no substantive “legitimate governmental interests” that one can invoke without lending comfort to purest prejudice.
To uphold anti-gay discrimination, therefore, one would have to write a purely procedural opinion. Such an opinion would justify discrimination against same-sex couples by declaring that 1) many people believe such discrimination to be justified, 2) such discrimination has been around for a very long time, reenforcing those beliefs with the venerability bestowed by time, 3) judicially eliminating such discrimination would alienate people who believe that such discrimination is justified, ultimately impeding the triumph of the non-discriminatory position through democratic means, 4) those who resist equality tend to be older and their numbers are rapidly diminishing either through persuasion or death, 3) legislatures will, therefore, probably eliminate such discrimination soon, and 5) such a legislative fix will make the change more durable and effective in the eyes of those who oppose it than a judicial fix.
The doctrinal resources do not exist in the case law to permit the writing of such a purely procedural opinion. No due process or equal protection doctrine allows a court to justify an otherwise unjustifiable law merely because that law is better eliminated democratically rather than judicially. Even under the most lenient “tier” of scrutiny, one needs to come up with some minimally plausible substantive justification for the burden. The problem with these burdens on same-sex couples is that any such justification sticks in one’s craw.
And so, for supporters of gay and lesbian equality, Obergefell was a necessary evil. Two cheers, then, for the opinion – but a steady march of legislative victories seems far more legitimizing to me than a 5-4 decision from SCOTUS.
Obergefell and the Future of Polyamorous Marriage
In The Future of Polyamorous Marriage, Gwyn Leachman and I examined the complicated relationship between the same sex marriage struggle and the future struggles of underserved sexual communities. As we argue there, the "spillover" effect of rights on subsequent movements can be ambiguous: on one hand, it opens the door for future arguments as an incremental step on the path to change, and on the other hand, it may generate difficulties based on how movements situate themselves.
The oral arguments in U.S. v. Windsor were a case in point: Ted Olson argued there that gay and poly marriage differ in that the first one targets status and the second, behavior. The distinction struck us as very unconvincing, but when we looked at the legal doctrines, we were able to point out possible paths and obstacles for poly activists.
Today's decision in Obergefell v. Hodges adds an interesting data point--not so much in the opinion of the court, but rather in the Chief Justice's dissent. As he argues, "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage".
To which many advocates of legal recognition for poly families might answer, "you say it like it's a bad thing". But is Roberts right to point out that the entire decision applies to poly families with equal force? I suspect that antagonists of poly marriage will argue that the fundamental right to marry differs from the arguably non-fundamental right to marry more than one person at a time. And given Olson's argument in Windsor, I expect some of these antagonists to be gay marriage proponents (though in the aftermath of their total victory, they may be less afraid of what they might perceive as an unsavory association). For reasons that Gwyn and I point in our article, there may be snags in the legal arguments about equal protection, too--whether it's made on the basis of sex or sexual identity. I don't think I'll see poly marriage in my lifetime, but I wonder if I'll at least witness some forms of legal recognition extended to poly partners. Thoughts?
Chevron's Magical Disappearing Act?
I want to add a few words to Adam Zimmerman's post here on Chevron and King v. Burwell and Chris Walker's post at Yale JREG on the same topic. There's something that yesterday's blockbuster cases share: Neither one relies on the Chevron doctrine to uphold the government's statutory interpretation.
As Adam and Chris discuss, Chevron made a brief appearance in King when the Court explained it did not apply because the interpretive question had "deep 'economic and political significance.'" In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., yesterday's decision interpreting the Fair Housing Act, the Court didn't apply Chevron and didn't even explain why. And that's surprising because, as I discussed here yesterday, HUD had promulgated a rule addressing the interpretive question before the Court.
What accounts for Chevron's magical disappearing act in Texas Department?
Maybe the briefs didn't discuss it? No, that's not it. The petitioner's opening brief (at 17 n.9) "assume[d] . . . that the Chevron framework remains applicable." The respondent's brief (beginning at 66) devoted an entire argument to show that "HUD's determination . . . is an authoritative interpretation entitled to Chevron deference." The Solicitor General's amicus curiae brief (at 15) offered this as its first argument: "HUD's regulation, promulgated after notice-and-comment rulemaking pursuant to express statutory authority, is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984)."
Here's where the question gets a little more interesting. Adam and Chris discuss King v. Burwell's invocation of Brown & Williamson and the exception to Chevron for questions of "economic and political significance." In Texas Department, the petitioner's reply brief (at 18) made the following argument: "HUD's position requires this Court to locate an enormous delegation in statutory language that is poorly suited to the task. Congress does not delegate 'decision[s] of . . . economic and political significance' in 'cryptic . . . fashion,' FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)[.]" I don't read Brown & Williamson to preclude deferring to HUD on whether the Fair Housing Act encompasses disparate-impact liability. But did Justice Kennedy, who wrote the majority opinion in Texas Department, think there was something to the petitioner's argument? We don't know because Kennedy's opinion cited Chevron only once (at 10), and that was when it discussed a separate opinion in Smith v. City of Jackson, 544 U.S. 228 (2005).
We're left, then, with the puzzle of this post's title. Maybe the Court avoided Chevron because a district court concluded in November 2014 that the Fair Housing Act prohibits only intentional discrimination and therefore vacated HUD's rule, though even the petitioners in Texas Department didn't make much of that. See Pet. Br. 11, 17 n.9. Maybe the majority thought the Act was clear, particularly in light of its purpose and legislative history. If so, then ignoring Chevron was a way to preclude a future HUD from changing its interpretation of the statute. Or maybe, to borrow from Adam's post, Texas Department, when read alongside King, "reflects growing unease" among some Justices "with opinions that defer to agency's interpretations of statutes and rules."
Which brings me to Justice Alito's dissenting opinion in Texas Department. Alito doesn't cite Chevron. But he does argue that HUD's interpretation isn't entitled to deference because of an "unusual pattern" of behavior at HUD. In a nutshell, Justice Alito suggests HUD adopted its regulation in anticipation of the Supreme Court deciding the issue. That's a reason not to give Skidmore weight to an agency's interpretation, he points out. And, he suggests, it's a reason not to give Chevron deference here. (At oral argument Chief Justice Roberts and Justice Scalia also piped up when Justice Alito asked the Solicitor General, "Should we be concerned here about the use of Chevron to manipulate the decisions of this Court?" Arg. Tr. 45-46.)
King extends one exception to Chevron --- perhaps we should call it the "deep questions" exception. Texas Department doesn't tell us why Chevron didn't apply, and Justice Alito's "unusual pattern" argument isn't precedential. But maybe there's more than one emerging exception to Chevron deference in yesterday's blockbuster decisions.
Johnson v. U.S.: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?
Amidst the good news that are not this blog's topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.
The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines "violent offense" as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”
In Johnson's case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard--so you can be sure that this decision is not about his niceness).
The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of "violent offense" itself. Today, the Court sided 8-1 with Johnson, finding that the definition of "violent offense" was too vague and did not provide sufficient warning about conduct, and framing its argument in a way that bodes well for those of us concerned about the "new penology", the language of risk, and the retrenchment of punitive opinion against violent offenders.
The vagueness, according to Justice Scalia who wrote for the majority (!!!), lies in the fact that the clause provides no guidelines for what counts as "risk" posed by the crime (statistics? similarity to enumerated offenses? precedents have taken various and different tacks) and for assessing the amount of "risk". Even seemingly easy issues turn out to be difficult to call. Notably, Scalia gives the example of "prison rioting", which he is willing to say is an offense that is defined so broadly that it doesn't necessarily generate "risk" of injury (!!!). Moreover, it is not necessary that a vague statute be "vague in all its applications".
The court also rejects the suggestion that "risk" be interpreted based on what each defendant actually did, rather than based on the average case. This is important in the facts of Johnson itself: It may well be that many felons in possession of a firearm don't pose as much risk as Johnson, a white supremacist with violent plans against progressives and minorities, but Johnson needs to be judged by the overall risk of the offense, not by his particular plans.
Finally, the court states that its decision is prompted by the massive confusion among lower federal courts on how to interpret the clause.
Justice Thomas arrives at the same conclusion via a different path--finding that possession of a firearm does not the definition in the residual clause. He agrees with the sole dissenter, Justice Alito, that the statute is not so vague as to merit its invalidation.
A few thoughts:
- It's hard to ignore the particular facts of this case given the tragic events of last week in South Carolina. Johnson's plans were similar to those that Roof put into action. Is the 8-1 decision here explainable, politically, via pro-gun sentiments among the conservative Justices?
- This decision might suggest that the Court has lost its appetite for sentencing enhancements. In Criminal Procedure II, I teach cases that have bent over backwards to uphold enhancements--including, in the case of California's Three Strikes, the ability to add two strikes at the same time (which obviously can't be justified by the need to deter--just by the wish to incapacitate.) Here we see that the Court pays a lot of homage to the idea of behavior modification, invoking the principle of legality. If I were teaching first year criminal law next year, I'd teach this case on the first day of class.
- The decision also highlights a disenchantment with the language of risk and panic, which has characterized so much of American criminal justice in the era of the "New Penology".
- Many commentators on the new state of criminal justice, including me in Cheap on Crime, have pointed out that much of the new project of scaling back mass incarceration addresses nonviolent offenders, and retrenches opinions about violent offenders by lumping them all in the same category. I find it remarkable, and heartening, that this decision strikes at the heart of the issue, arguing against an overbroad category of violent offenses. I'm not sure Johnson should necessarily be on that side of the distinction, but as the Court states, this is about the offense, not about the offender.
- Finally, I find it notable that Justice Scalia--who, in Brown v. Plata referred to inmates as "speciments"--chose, as one of his examples, prison rioting, explicitly stating that the definition of rioting is so broad that it is not necessarily a violent offense. Attorneys in Ashker v. Brown, the lawsuit against long-term solitary confinement, should take note of this comment. I think it's important. It's the third Supreme Court statement this week that is sympathetic to prisoners.
For those of you who are inexplicably here rather than at SCOTUBlog, here is the 103-page opinion in Obergefell. Kennedy for five; dissents from each of the Chief, Scalia, Thomas, and Alito.
Thursday, June 25, 2015
“An Antidemocratic and Largely Foreign Conspiracy”
In my last post, which considered whether abolitionist sentiment should matter to the Justices’ decision-making in Glossip, I noted that part of that sentiment (a good deal of it, actually) is coming from nation-states that have long been abolitionist. Here I’ll expand on that theme, and connect it up with the title of my post, which unfortunately comes from one of the amicus briefs in Glossip.
As most people know, Europe is almost entirely abolitionist (indeed, in all of Europe, only Belarus still has the death penalty, and it’s so close to Moscow that it’s hard to think of it as Europe). And Europe isn’t abolitionist-light—it’s as committed to abolitionism as the United States is to its death penalty. Abolishing the death penalty is a requirement for EU membership, and in 1998, the EU made worldwide abolition a centerpiece of its human rights agenda, declaring that it would “work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states.”
These guys are not fooling around. It was the EU that sponsored UN Resolution 62/149, adopted by the UN General Assembly in 2007, which declared that “the death penalty undermines human dignity” and called for all nation-states to institute a moratorium as a first step towards abolition. The vote was 104 nations in favor, 54 against, with the United States leading the dissenters.
The point here is that European abolitionism has been around for a long time, a lot longer than the current snafu over lethal injection drugs, and these countries are Dixie Chicks serious about abolishing the death penalty worldwide. So when the market for thiopental experienced upstream supply problems, and when thiopental’s producer (Hospira) moved its production plant from North Carolina to Italy for reasons that had nothing to do with any of this, is it any wonder that Italy, then Great Britain, and then the EU as a whole, saw an opportunity, and seized it, to put the damper on death penalty drugs?
For decades, EU governments had tried, and largely come up short, to influence the United States with their anti-death penalty views. To borrow a line from my paper with Jim Gibson, it turns out that the best way for European governments to export their abolitionist norms was to stop exporting their drugs.
What’s wrong with that?
That brings me to the Criminal Justice Legal Foundation’s amicus brief in Glossip. I originally wanted to do the Harry Potter “It that must not be named” thing—my attempt at that was yesterday’s post. But that approach has proven unsatisfactory. I’ve got to name it, because it named me, or rather the paper I just co-authored—all under the heading “The United States must not allow its justice to be obstructed by an antidemocratic and largely foreign conspiracy.” Wait, what?
That’s right, that section of the brief cites the paper, and quotes it, to show that foreign governments are “meddling” in our business—our execution business, which it alleges is of “no legitimate concern of European governments.”
I dissent. We are a sovereign state and so yes, we can execute if we please. If we can’t get the drugs to inject someone to death, we can hang them. Or shoot them. Or electrocute or gas them. We can double-down on death, no matter what the EU does.
But those European countries are sovereign states too, and they aren’t “meddling” in our affairs when they make their own decisions in response to ours.
The EU doesn’t have to sell us its drugs. We’re not entitled to them. It’s a free country (or countries, I suppose). If European countries, or nation-states anywhere else, want to use export controls to express their moral disapprobation of the death penalty, they can do that—just like we’ve done it countless times when other countries do things we find morally repugnant.
The CJLF amicus brief states in a footnote when citing the paper that “Amicus does not endorse the views of the authors, who seem to think that European government meddling in American criminal justice policy is a good thing.”
For the record, we don’t take a stand on whether these developments are a good thing, or a bad thing; they’re just a thing. I can say, however, that I don’t endorse the views of amicus any more than it endorses mine.
The US is sovereign, but no more sovereign than other nation states. Rather than fuming about foreigners meddling, we’d be better served to think about execution methods that don’t require the cooperation of nations that don’t want us to execute.
Chevron After King v. Burwell
As Richard already observed today, in King v. Burwell, the Court upheld the government's interpretation of the Affordable Care Act to allow people to get subsidies on healthcare exchanges created by the federal government. Chris Walker has a nice post at JREG discussing the case.
As I mentioned in an earlier post, there were a few different ways that the Court could have sided with the government. First, the Court could have found that the statute favored the government's position by using a somewhat novel application of the "unconstitutional avoidance" doctrine. The Court could have used that doctrine to reason that Obamacare could not be read to punish the citizens of states that failed to set up health exchanges without raising serious federalism questions under the Constitution. The Court sometimes uses avoidance canons like this before it decides to defer to an agency (at, what administrative law people call "Chevron Step 1," discussed below). See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 (1988); Solid Waste Agency v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001).
Second, the court could have found that the statute favored the government under cases like Pennhurst, Gregory, and Gonzales, which require Congress to speak unambiguously before imposing new onerous conditions on the states. The Court could have reasoned that Congress could not have done so in such an awkward way, buried in an obscure subsection of the tax code. Some commentators, like Mila Sohoni and Nick Bagley, observed that this doctrine would not raise the same kinds of constitutional doubts about the how Congress can interact with states in the future as the avoidance doctrine described above. The Court would simply be saying that Congress didn't write the law with sufficient clarity.
Third, the Court could have found that the provision favored the government because, even though the text was somewhat awkward and unclear, when read as a whole, the structure and purpose of the law unambiguously favored the government. This was the government's primary argument.
Fourth, the Court could have found that the statute was ambiguous, but then deferred to the government's interpretation of the statute under Chevron. One thoughtful commenter argued that this approach would respect the government's position without raising any new questions, under any doctrine, about how Congress interacts with state government.
All of those tacks would have been consistent with the way the court is supposed to apply Chevron--determining (1) whether Congress has spoken to the issue using traditional canons of construction, and if not, (2) deferring to the agency's permissible reading of a statute. But Court didn't do any of those things. The Court instead said the ACA was ambiguous. But rather than defer to the government's interpretation of an ambiguous statute under Chevron, it held that courts, not agencies, have the primary role in interpreting statutes that raise questions of “deep economic and political significance.”
When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id., at 842–843. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.”FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”Ibid.
This is one of those cases.
This "major questions doctrine"—the presumption that Congress “does not . . . hide elephants in mouseholes”—has been around for a while. See Whitman v. American Trucking (2001), FDA v. Brown & Williamson (2000). But it does seem unusual for the Court to use it here for two reasons.
First, the Court relied on this proposition by citing FDA v. Brown & Williamson. But that case didn't acknowledge or claim that it was side-stepping Chevron. Rather, Brown & Williamson said that whether or not the statute gave the FDA authority to regulate tobacco had to be considered against Congress' long history of regulating tobacco in other ways. And when it was considered in that light, Congress clearly could not have given the FDA that power under Chevron's first step. Brown & Williamson ("[W]e find that Congress has directly spoken to the issue here and precluded the FDA’s jurisdiction to regulate tobacco products.")
Second, I wonder how the Court's latest use of the "major questions" doctrine is supposed to interact with two other court cases: Mead and City of Arlington. Under Mead, the Supreme Court said it is supposed to consider two things before determining whether or not to apply Chevron: (1) whether Congress delegated power to an agency to interpret a statute and (2) whether the agency exercised its authority to do so. But, as the Solicitor General observed at oral argument, Section 36B(g) of the ACA expressly gives the IRS the specific authority to make any decisions necessary to implement Section 36B (the provision at issue). And the IRS did so through a formal, deliberative process. The Court never grapples with Mead, but perhaps the court is suggesting that when Congress delegated the IRS interpretive power, it didn't mean to delegate authority to resolve this kind of question.
That seems to square with Justice Kennedy's concerns at oral argument: that the IRS could not have authority to make this interpretation because the decision involved "billions of dollars" of subsidies. But I'm not sure how that fits with City of Arlington. Under, City of Arlington, Chevron is supposed to apply to all decisions--jurisdictional and non-jurisdictional, big and small. The purported reason for this was because it's so difficult and subjective for judges to determine what counts as a big and small question before deciding to defer to an agency. After all, agencies like the EPA, the FCC, and the FTC often are delegated with power to make billion dollar decisions. How specific does Congress have to be when it gives agencies authority to regulate?
If anything, the Court's discussion of Chevron, mirrors the kind of rigorous judicial review that appears in Justice Robert's dissent in City of Arlington-- searching provision-by-provision to determine “whether [that] delegation covers the ‘specific provision’ and ‘particular question’ before the court":
By the same logic, even when Congress provides interpretive authority to a single agency, a court must decide if the ambiguity the agency has purported to interpret with the force of law is one to which the congressional delegation extends. A general delegation to the agency to administer the statute will often suffice to satisfy the court that Congress has delegated interpretive authority over the ambiguity at issue. But if Congress has exempted particular provisions from that authority, that exemption must be respected, and the determination whether Congress has done so is for the courts alone.
More broadly, I wonder whether this case reflects growing unease by the Chief Justice--and possibly other members of the court--with opinions that defer to agency's interpretations of statutes and rules. Or perhaps, this decision just reflects a lack of unanimity on the court about what Chevron really means. (If it's the latter, that's equally surprising given that no member of the court in King v. Burwell questioned the decision to bypass Chevron.)
Fair Housing and the Federal Executive
Today's decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. "acknowledges the Fair Housing Act's continuing role in moving the Nation toward a more integrated society." That requires, the Court held in an opinion by Justice Kennedy, recognizing disparate impact liability under the FHA.
The Court thus joined the Secretary of Housing and Urban Development, who had already interpreted the FHA to encompass disparate impact. HUD's regulation, as Justice Kennedy noted, had influenced the court of appeals in Texas Department. Going forward HUD will continue to play a role in shaping disparate impact law under the FHA. All of which raises a question I've written about before: What role does the Executive Branch have in shaping property lawmaking?
The question may seem a strange one. We don't usually think of the federal Executive when we think about property lawmaking. But we should. Why? Look no farther than the three opinions in Texas Department. Each acknowledges the Executive's role and has a different view of it.I begin with footnote 4 of Justice Thomas's dissenting opinion. As far as I can tell, the footnote aims to impeach "[e]fforts by Executive Branch officials to influence this Court's disparate-impact jurisprudence" and, by extension, the Court's interpretation of the FHA. Justice Thomas summarizes a joint congressional staff report that alleged the DOJ secretly convinced the City of St. Paul, Minnesota to voluntarily dismiss Magner v. Gallagher, 564 U.S. __ (2011), which presented the same question about the FHA the Court decided today. Footnote 4 goes on to say, "just nine days after we granted a writ of certiorari in Magner, and before its dismissal, the Department of Housing and Urban Development proposed the disparate-impact regulation at issue in this case," the implication being, I think, that proposing the rule was also unseemly.
Not all efforts to influence the Court's disparate-impact jurisprudence are equally unseemly, however, given that Justice Thomas joined Justice Alito's dissenting opinion, which made much of the Executive Branch's views of the FHA in 1988. As Justice Alito explains, "the Solicitor General and the Court place heavy reliance" on 1988 amendments to the FHA, which the Court treat as "crucial" evidence that the FHA authorizes disparate-impact claims. As the Court points out, "all nine Courts of Appeal to have addressed the question" by 1988 "had concluded the Fair Housing Act encompassed disparate-impact claims."
In response, Justice Alito marshals a "fact" that he thinks is "fatal to any notion that Congress implicitly ratified disparate impact in 1988." The fact? "Shortly before the 1988 amendments were adopted, the United States formally argued in this Court that the FHA prohibits only intentional discrimination." The Executive Branch's "considered and public view that [the appellate courts'] decisions were wrong" defeat any inference that Congress ratified those decisions. Moreover, "when he signed the  amendments," President Reagan "disapproved of disparate-impact liability." How then, Justice Alito asks, can we now interpret the 1988 amendments to approve of the same?
For the majority, President Johnson's actions, not President's Reagan's, provide important context for interpreting the FHA. Justice Kennedy explains: "The mid-1960's was a period of considerable social unrest; and, in response, President Lyndon Johnson established the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission." The Kerner Commission found that "residential segregation and unequal housing and economic conditions in the inner cities [were] significant, underlying causes of the social unrest" and recommended "'a comprehensive and enforceable open-occupancy law.'" (It's important to note that President Johnson convened the commission but ultimately didn't fight for adoption of its recommendations.) Following Dr. King's assassination in Memphis in 1968, "Congress responded by adopting the Kerner Commission's recommendation and passing the Fair Housing Act." And, the Court concludes on the last page of its opinion, "[t]he FHA must play an important part in avoiding the Kerner Commission's grim prophecy that '[o]ur Nation is moving toward two societies, one black, one white --- separate and unequal.'"
The lesson here may be best captured by a sentence buried in Justice Kennedy's opinion: "The availability of disparate-impact liability . . . has allowed private developers to vindicate the FHA's objectives and to protect their property rights . . . ." Federal regulation and property rights aren't simply opposed. Regulation may be necessary to protect property rights. And, if that's correct, then it shouldn't be surprising to see the federal executive appear in a story --- or, in the case of Texas Department, three different stories --- about property lawmaking.
I think the Court got it right in King v. Burwell, but I don't have anything to say on the merits. But I do want to briefly comment on how the majority explained its cert grant and some underlying procedure in the case.
On p. 7, at the end of Part I, Chief Justice Roberts, having summarized the decision of the lower court (the Fourth Circuit), says "[t]he same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia [reached the opposite conclusion in a different case." The implication is that the Court granted cert for its typical reason--to resolve this circuit split. Sup. Ct. R. 10(a).
But that description is incomplete and arguably inaccurate. Two months after both circuit panels issued their opinions and two months before the Court granted cert in King, the en banc D.C. Circuit vacated that panel decision and granted rehearing en banc. As a result, at the time the Court conferenced and granted cert in King (in November), there was no circuit split, only one court of appeals decision interpreting the statute to allow for subsidies on all exchanges. In fact, the government used this to argue against cert in King, an argument the Court obviously rejected in taking the case.* The majority opinion does not even drop a footnote to give the bigger picture.
None of this matters, of course. Cert in King was certainly justified as an important question of federal law that should be settled by SCOTUS. Sup. Ct. R. 10(c). But then why even mention the circuit split that really wasn't? Or why not offer the full procedural context and the fact that the split went away. And might the answer have something to do with suspicions about the decision of the D.C. Circuit (a court with a majority Democratic appointees) to vacate the panel?
[*] Once SCOTUS granted cert in King, the D.C. Circuit held the Halbig appeal in abeyance, pending King.
Is Judicial Restraint More of a Method, or an Effect?
Today’s King v. Burwell face-off between Chief Justice Roberts and Justice Scalia illustrates a difference in emphasis between these two mavens of judicial restraint.
For Scalia, judicial restraint primarily means adherence to a neutral method of decision-making. If courts scrupulously follow that proper interpretive method, then they are engaged in judicial restraint—no matter the practical consequences.
For the Chief Justice, by contrast, judicial restraint is more about the destination than the journey. If court rulings are having the practical effect of demolishing plans or sowing confusion, then they are unrestrained—no matter their method.
Here are a few examples of the Chief’s effects-oriented view of judicial restraint:
[T]he statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid.
[The] credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.
And here are a few examples of Scalia’s focus on adherence to method:
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”
But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.
We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.
These differences between the Chief Justice and Justice Scalia are a matter of emphasis or degree, as almost all lawyers would agree that both method and effect can be relevant when evaluating judicial legitimacy. In King itself, Scalia acknowledges room for atextual interpretation when acting otherwise would yield “a consequence ‘so monstrous, that all mankind would, without hesitation, unite in rejecting the application.’” And the Chief’s majority opinion pays homage to settled methods by paying careful attention to the details of statutory text before turning to case-specific pragmatic concerns.
But method and effect are sometimes thought to point in opposite directions—as both Scalia and the Chief seemed to assume in King. And, in those situations, this difference in emphasis can have real consequences.
Singletons in film
Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.
I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.
Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.
Strange Bedfellows #10: Why So Tense?
This post is part of the Strange Bedfellows series.
A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.
The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).
The advocacy lesson is equally important. The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing. Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges. When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions. My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting. Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).
As a casebook author, I faced the question is how much to leave in. For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish. To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases. Think forty days and forty nights, or forty years in the wilderness. Most casebooks seem to edit down the list; you get the point pretty quickly. But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty. The honest ones will admit they skipped it, just as I did the first several times I read the opinion. The overblown Roberts dissent presents a good opportunity to discuss when less is more.
As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these: “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.” (emphasis added) Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.
Wednesday, June 24, 2015
In Anticipation of Glossip
I’m excited. Not like Harry Potter World excited, but excited in that geeky, purely academic way that sometimes feels inappropriate in the death penalty context. The Supreme Court will issue its ruling in Glossip any day now, and certainly within the next 7 days. What will the Justices do?
I posted a comment earlier titled why is Glossip hard? so yeah, you could say I have a point of view. In this post, I’ll pick up where I left off, and think a bit more about what seems to be making this easy case hard, at least for the Court’s conservatives: abolitionist sentiment.
The reason the Court is stuck considering the constitutionality of midazolam in lethal injection protocols is that the states are stuck using it. More effective drugs—sodium thiopental, pentobarbital (of the uncompounded variety), and propofol—have all been taken off the market, or at least out of executioners’ hands, by the companies that make the drugs.
Why? In part it’s because abolitionists have played the ‘name and shame’ game, calling out drug companies whose mottos include “advancing wellness” for selling their drugs to put people to death. And in part it’s because European governments, which have long been abolitionist, have tightened their export controls. So yeah, it’s fair to say abolition sentiment of one variety or another is behind the current shortage of death dealing drugs.
That led Justice Scalia to blame the “abolitionist movement” for the mess lethal injection is in nowadays, and for Justice Alito to ask whether it was “appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty.” For the condemned, maybe those were lost votes anyway, but then Kennedy asked The Question: “What bearing, if any, should be put on the fact that there is a method, but that’s not available because of opposition to the death penalty?”
Now we’ve got everyone’s attention.
George Will says the success of abolitionists in convincing drug companies not to play merchants of death, and of European governments in enforcing their export controls, is of no moment. “Public agitation against capital punishment is not relevant to judicial reasoning,” he says, “and it is not the judiciary’s business to worry that a ruling might seem to ‘countenance’ this or that social advocacy.”
It’s worth noting that before abolitionists stumbled upon the lethal injection drug supply as a way to thwart executions, there was a shortage in the raw ingredients necessary to make those drugs. Indeed that and some other random events are what started the scramble for death drugs in the first place (as my colleague Jim Gibson and I detail in a recent article). So what if the coveted lethal injection drugs were unavailable because of problems in the upstream supply rather than downstream distribution?
I’m left wondering why it matters why the traditional drug protocol is unavailable; indeed, why abolitionist sentiment is in this at all. The ‘naming and shaming’ on the domestic side is free speech, and the export controls on the international side are a sovereign state’s prerogative (and one we’ve used to express our moral disapprobation numerous times).
I’m with George on this one, the reason for the shortage shouldn’t matter.
Los Angeles v. Patel: A Successful Fourth Amendment Facial Attack
The Fourth Amendment protects "people, not places", but in applying it the courts seem to care quite a bit about places, too. As Jason Miller's explains in his useful note in the Seton Hall Circuit Review, while the Fourth Amendment principles behind hotel room searches are the same as behind any search (reasonable expectation of privacy awards standing for overnight guests), but hotels pose special fact-sensitive challenges, including registration under an alias, registration for a third party, paying with a fradulent credit card, exceeding checkout time, and the classic from Minnesota v. Carter--booking a room solely for the purpose of bagging cocaine.
But this week's decision in Los Angeles v. Patel required the Supreme Court to examine hotel searches via a different prism. This was not a motion to dismiss evidence or a §1983 lawsuit, but rather a facial challenge brought by motel owners against a Los Angeles city ordinance that requires them to maintain a careful registration of hotel guests' names, makes of cars, photo ID for cash payers, and sometimes credit card information. The information needs to be kept for 90 days and--which is the provision at issue in Patel--made "available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” Failure to comply, a misdemeanor, is punishable by up to six months in jail and a$1,000 fine.
The reasoning for the ordinance are fairly obvious: in his dissent, Justice Scalia explains that "The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels’ guest registers to ensure that they are properly maintained." But it is also understandable that motels are well aware of other reasons why their clientele might not wish to be exposed in the registry, and see the ordinance as an interference with their business model (apparently, there's a whole line of hotels called "Mr. and Mrs. Smith"!).
Can they successfully challenge the Fourth Amendment, even though in any individual guest's case the police might be able to search a room with a warrant or a recognized exception? By a 5:4 majority, the Supreme Court answers this question in the affirmative.
Justice Sotomayor, who wrote the Opinion of the Court, found that the Fourth Amendment is as useful for a facial attack as any other constitutional provision. In doing so, she distinguished Sibron v. New York (1968), in which a facial attack failed, by arguing that the statute in Sibron was new and difficult to interpret (and therefore unlikely to be struck down.) Sotomayor provided several examples of prior facial attacks based on the Fourth Amendment, such as student athlete and employee drug testing schemes, and the successful challenges to drug testing schemes for candidates for office, warrantless arrests in the home, and luggage searches for people arriving in Puerto Rico from the United States.
In response to the government's contention that the ordinance in Patel differs from those examples in that hotel searches under it will not be universally unconstitutional, Sotomayor points out that the applications examined in light of the constitutional challenges are only those that involve authorization or prohibition of conduct; by contrast, the searches that will still be constitutional (via a warrant or an exception) do not directly involve the ordinance itself. By contrast, in this case, the municipal code creates a sanction for noncompliance with the police search of the records themselves, which is what is at issue here, and not for noncompliance with the request to search a room (backed by a warrant or an exception).
The requirement to keep a registry and provide it to officers upon request, under threat of arrest, is problematic because it does not allow for an opportunity to obtain precompliance review by a neutral decisionmaker: "A hotel owner who refuses to give an officer access to his or her registry", writes Justice Sotomayor, "can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice". For the ordinance to be constitutional, it is not necessary to have overview of each and every request for hotel records; it is, however, necessary to have the opportunity for overview "in those rare instances where a hotel operator objects to turning over the registry. " This overview could come in the form of an administrative subpoena which, by contrast to a full search, does not require probable cause. And if there is concern that someone might tamper with the records, the police can guard the registry until the issue is resolved.
In his dissent, Justice Scalia argues that the motel owners' petition is not a "case" or a "controversy", and that whenever facial attacks have succeeded, they were not aimed at the law but at its application. And on the merits, hotels (like cars, other businesses, and administrative agencies) can constitute exceptions to the normal search and seizure laws because they are closely regulated businesses. Scalia proceeds to examine the arrangement under the ordinance and argues that it provides a reasonable balance between governmental interests and privacy interests.
In a separate dissent, Justice Alito argues that not all applications of the ordinance are against Fourth Amendment law, which does not award protections in many situations equivalent to those in the ordinance.
A few thoughts:
1. The examples provided by Justices Scalia and Alito in the dissenting opinions present motels as hotbeds of dangerous criminal activity, complete with child porn, murder, sexual assault, and kidnapping. Justice Sotomayor, obviously avoids these examples. I like to draw my students' attention to the fact that factual patterns, and examples, often explain judicial opinions, in that they drive the judicial imagination to the scenarios in which the law is likely to act.
2. I wonder if the dissent were less vociferous if the challenge to the ordinance came from five-star hotels, and not from motels.
3. The majority opinion suggests that there's an "easy fix" for the ordinance: an administrative subpoena that can be challenged. How long could it possibly take for the City of Los Angeles to produce the requisite form and make the ordinance constitution-compliant?
Policing False Speech in Political Campaigns
I'm working on the update memo for my Mass Media Law casebook while simultaneously working on a new edition, which means I'm coming across some interesting cases I missed when they came out. One of these is Eighth Circuit's decision in 281 Care Committee et. al. v. Arneson, No. 13-1229 (Feb. 13, 2014), which strikes down a Minnesota law attempting to assign administrative law judges and county attorneys the job of policing the truth of statements partisans make for or against ballot initiatives. Arneson involved a challenge by advocacy organizations to the constitutionality of a Minnesota law making it a gross misdemeanor for a person to prepare or publish a political advertisement or campaign materials supporting or criticizing “a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” Minn.Stat. sec.211B.06, subd. 1. Under the statute, any person can trigger an investigation by an administrative law judge to determine whether probable cause supports the complaint. Upon such a finding, the ALJ may refer the case to a panel of three ALJs for further determination or may refer the matter to a county attorney to prosecute.
A district court held that the statute served a compelling interest in preserving fair elections and preventing frauds on the electorate. The U.S. Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit held that the advocacy organizations had standing to challenge the statute and that the statute was a content-based regulation of political speech that violated the First Amendment. The district court, citing the plurality and concurrences in United States v. Alvarez (striking down the Stolen Valor Act), determined that the appropriate constitutional standard was intermediate scrutiny, but the Eighth Circuit distinguished Alvarez because it did not involve core political speech; moreover, the court noted that the false assertion criminalized by the Stolen Valor Act--that one received a military honor one did not receive--is verifiable objectively. In contrast, the Minnesota law targeted "false" political speech that was likely to include opinion or other unverifiable political speech. The court therefore concluded that strict scrutiny was the appropriate standard to judge the Minnesota law.
Applying strict scrutiny the court determined that, regardless of whether Minnesota’s interests in passing the statute were compelling, the statute was neither necessary nor narrowly tailored but instead was “simultaneously overbroad and underinclusive, and [was] not the least restrictive means of achieving any stated goal.” The court bolstered this conclusion by observing that the State had failed to show “an actual, serious threat of individuals disseminating knowingly false statements concerning ballot initiatives.” Furthermore, and more central to the court’s analysis, was its determination that the statute “tends to perpetuate the very fraud it is allegedly designed to prohibit.” As the court cannily deduced, the Minnesota statute lends itself to use by political adversaries seeking to undermine the message of their opponents. Filing a complaint against one’s opponent can be used as a political tool to undermine the opponent’s message and force the opponent to “’to devote time, resources, and energy defending themselves.’” All of these strategic political goals can be accomplished by a complainant whether or not his or her complaint is meritorious. The filing of the complaint itself becomes a news item and casts doubt on the credibility of the speaker, and the investigation takes up time and money even if the investigation ultimately terminates in one’s favor.In light of this political reality, the court concluded that the mens rea requirement in the statute was not enough to render it constitutional. Most of the statute's chilling effect on political speech occurred because any person can file a complaint under the statute at any time: “[M]ost cynically, many might legitimately fear that no matter what they say, an opponent will utilize [the statute] to simply tie them up in litigation and smear their name or position on a particular matter, even if the speaker never had the intent required to render him liable.”
The court further explained that the statute’s exemption for news media made its unconstitutionality all the more apparent. Exempting the media from liability for false statements while targeting advocacy groups did not advance the state’s interests in policing election fraud. The underinclusiveness of the statute undermined the state’s claims that its speech restrictions were necessary to achieve its stated aims.
Ultimately, the court’s decision to strike down the statute stemmed from both its understanding of the political process and its embrace of the First Amendment ideal of the marketplace of ideas. Counterspeech, not criminalization, is the remedy that the US Supreme Court’s decisions interpreting the First Amendment precribe for false speech during political campaigns. Counterspeech is clearly a less restrictive alternative than criminalization, and “[t]he citizenry, not the government, should be the monitor of falseness in the political arena.”
The court's opinion thus relied on two central tenets (some would call them myths) of First Amendment jurisprudence. As I've previously described these tenets in an article called Nobody's Fools: The Rational Audience as First Amendment Ideal: "[t]he first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less." The problem, of course, is that these tenets, or assumptions, may be demonstrably wrong. False speech in political campaigns may bamboozle the electorate, if they're even paying attention. Nonetheless, the court in Arneson reached the right decision based on both Supreme Court precedent and democratic theory. An audience that is incapable of critically analyzing campaign speech is also incapable of participating in political discourse or engaging in democratic self-governance, and to abandon the ideal of the rational audience for political speech is to abandon the ideal of democracy. This is not (yet) something we're prepared to do.
Strange Bedfellows #9: The Frame Game
This post is part of the Strange Bedfellows series.
The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case. In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence: “This is a case about ____.”
My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race. The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied. The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply. Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?
The frame game inevitably reveals itself in many canonical substantive due process cases, but it can also be woven into discussions of cases arising under many different doctrines.
Framing can be a battleground in equal protection cases where the court must decide which groups to compare against each other. Goesaert v. Cleary, 335 U.S. 464 (1948), sometimes taught as an example of the bad old days, involved a frame that strikes most modern students as bizarre. A Michigan statute would grant bartender’s licenses to two kinds of applicants: (a) a man or (b) a woman who is “the wife or daughter of the male owner” of a tavern.* For Justice Frankfurter, writing for the majority, the statute distinguished between two classes of women: those who are close relatives of bar owners and those who are not. The legal question was whether Michigan was “play[ing] favorites among women without rhyme or reasons.” Frankfurter tipped his hand that his choice of frame controlled the outcome, saying: “To ask whether [the state may distinguish] wives and daughters of owners of liquor places and wives and daughters of nonowners, is one of those rare instances where to state the question is in effect to answer it.” Indeed. The dissent asked a different question: could the state justify discrimination “between male and female owners of liquor establishments?” The dissenters answered that question (in the negative) in two quick paragraphs. Other, even crazier, frames are possible on the Goesaert facts. The statute discriminated against corporations who own taverns, because they are not "male owners" capable of having a "wife" or a "daughter." The state is facilitating cheaper labor for certain sole proprietors, but owners who exercise their Citizens United right to assemble in the corporate form must hire from a slightly smaller and hence more expensive all-male labor pool.
* (As noted in an earlier post, alcohol pops up Con Law teaching more often than one might expect.)
All disparate impact cases are a variation on the frame game. Did the law in Geduldig v. Aiello (1974) classify along the lines of male v. female or, as the majority thought, “pregnant women and non-pregnant persons?” Did the law in Personnel Administrator v. Feeney (1978) classify between veterans and non-veterans, or between men and women?
The frame game is inescapable in substantive due process cases where the task is to define the relevant unenumerated right. Did the terminally ill plaintiffs in Washington v. Glucksberg (1997) seek to enforce “a right to commit suicide which itself includes a right to assistance in doing so” or “the right to a humane death” or “freedom from pain and indignity”? Did the biological father in Michael H. v. Gerald D. (1989) seek “parenthood” or “parental rights [of] the natural father of a child conceived within, and born into, an extant marital union [to which he is not a party]?” And as we await a result in Obergefell v. Hodges, one can ask whether the couple in Loving v. Virginia (1967) sought the right to enter into “marriage” or into “interracial marriage.”
Finally, one may consider an often explicit choice among legal frames, with the most common nominees in individual rights cases being freedom and equality. This is likely to arise in Obergefell, which is a case about the freedom to marry and about equality among marriages. While abortion rights were framed as a matter of freedom of reproductive choice in Roe v. Wade (1973), pro-choice advocates also argue that legal abortion is necessary for women to have the same options as men. In many such cases, the frames would not necessarily generate opposite answers; this is seen in an earlier post about jury selection cases, where the right of a juror to be seated correlates with the right of the defendant to a representative jury. In these situations, students can develop the lawyering skill of choosing which frame to emphasize.
Fifty Years of Criminal Procedure – the Subject and the Casebook
The following guest post comes from regular reader and commenter Orin Kerr (GW and The Volokh Conspiracy) and is sponsored by West Academic.
Fifty years ago, in 1965, a young professor named Yale Kamisar paired with a more established professor named Livingston Hall to publish a new casebook that introduced a new academic field. That casebook, Modern Criminal Procedure, was the first casebook about a then-new field of criminal procedure. When the first edition was published, the Warren Court was in the midst of its so-called “criminal procedure revolution.” Mapp v. Ohio was four years old, and Gideon v. Wainright was two. Massiah v. United States and Escobedo v. Illinois were hot off the presses (literally). Miranda v. Arizona would follow the next year, with Katz v. United States the year after that and Terry v. Ohio the year after that.
The many editions of the Kamisar casebook have traced and influenced the Supreme Court’s development of the field ever since.
This summer marks the publication of the 14th Edition of the Kamisar casebook. Kamisar remains an active author, as are Wayne LaFave and Jerold Israel, both of whom joined the casebook in 1969 for the 3rd edition. More recently, three new co-authors, Nancy King, Eve Brensike Primus and I have joined the book. In the new 14th Edition, the authors made extra efforts to make the book more user friendly while retaining its comprehensive coverage. The new book has slimmed down a bit, and the authors have added an online teacher’s manual.
Both Yale Kamisar and Jerold Israel will be discussing their work on the casebook, and the evolution of the field of criminal procedure more broadly, at the upcoming Southeastern Association of Law Schools conference, July 27 – August 2 in Boca Raton, FL. Here’s the panel description for those interested:
Teaching Criminal Procedure: Fifty Years of Experience Courses in Criminal Procedure have now been taught at U.S. law schools for half-a-century. Over that time, the nature of these courses has changed and evolved. The speakers on this panel, some of whom have taught Criminal Procedure from the beginning, will discuss how the course has grown and evolved over the decades.
Moderator: Professor Stephen Singer, Loyola University New Orleans College of Law
Speakers: Professor John Burkoff, University of Pittsburgh School of Law; Professor Steven Friedland, Elon University School of Law; Professor Jancy Hoeffel, Tulane University Law School; Professor Jerold Israel, University of Michigan Law School, University of Florida, Levin College of Law; Professor Yale Kamisar, University of San Diego School of Law, University of Michigan Law School; Professor Ellen Podgor, Stetson University College of Law
Tuesday, June 23, 2015
Thomas More's advice for bloggers
Yesterday, for some, was the feast day of St. Thomas More (patron saint of lawyers and statespersons). It turns out, he was also pretty prescient w/r/t social media. Here is some advice from him for bloggers!
An excerpt from a letter of St. Thomas More to Erasmus, written on the 14th of June, 1532:
Congratulations, then, my dear Erasmus, on your outstanding virtuous qualities; however, if on occasion some good person is unsettled and disturbed by some point, even without making a sufficiently serious reason, still do not be chagrined at making accommodations for the pious dispositions of such men. But as for those snapping, growling, malicious fellows, ignore them, and, without faltering, quietly continue to devote yourself to the promotion of intellectual things and the advancement of virtue.
(HT: Ryan Patrico).
Openness to Discuss Prison Conditions: Will SCOTUS Deliver on its Promise?
Yesterday marks the second time in a week in which Supreme Court opinions that did not directly involve incarceration conditions included dicta that signaled readiness to hear and discuss them.
The first one was Justice Kennedy's concurring opinion in Davis v. Ayala, which I discussed in a previous post. There, Justice Kennedy offers a reminder that the respondent spent a quarter century under solitary confinement, and discusses the evils of these prison conditions.
The second one came yesterday, in Kingsley v. Hendrickson, which did not involve an inmate, but rather a pretrial detainee who sued jail officials for excessive use of force. Given the Bell v. Wolfish determination that pretrial detention did not count as "punishment", Kingsley could not recur to the Eighth Amendment, and instead made a Fourteenth Amendment due process claim. In a 5:4 decision split along predictable lines, Justice Breyer sided with Kingsley, finding that the appropriate test for use of force situations in pretrial detention is an objective test.
We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.
Could the proximity of these two posts be contributions to Jonathan Simon's "dignity cascade"? The real test, I expect, will be when claims about prison conditions are brought directly, rather than acknowledged in passing in other contexts.
To Start a Race War: Dylann Roof and White Supremacy
The mass murder of parishioners at the historic Emmanuel African Methodist Episcopal church in Charleston, South Carolina law week, by a young white supremacist intensified the already profound national conversation about racism and violence that has been building since the killing of unarmed teenager Trayvon Martin in 2012. There are more topics in play around Charleston than any single post (even an over long one like this) can address. So a couple of brief points before an extended discussion of one question, already taken up here on Prawfsblawg by Rick Hill (but I come out a bit different). whether to categorize the act as one of terrorism or as an example of a mentally deranged or ill person taking an otherwise unthinkable action. My answer, we its an act of terrorism that calls for a political response, but we need a more complicated framework to think about how mental illness and acts rooted in diseased ideation can parallel acts of terrorism.
So briefly, two strands that in my view should not receive significant attention.
On the political right, or at least its penumbras on Twitter, the bogey of “black on black crime” has been raised; as if to say, white killers are not the real threat facing black communities. Suffice it to say that this is a total dodge. So called “black on black” violence, overwhelmingly a problem of young men in super segregated communities of urban poverty is a terrible problem, but unlike acts of racist violence, it plays no role in maintaining the legacies of white supremacy; including segregated neighborhoods, white privilege in access to jobs, educational opportunities, and even sexual partners. We need social and economic strategies to reduce levels of violence among young men in predominantly black communities but it is by no means an answer to what occurred in Charleston or a reason not to vigorously pursue one.
On the political left, one major response has been to revive the ever-flagging gun control debate. While less invidious, I also think this is something of a dodge. Roof was not using an assault rifle that could fire scores of bullets in a short time. He apparently used a 45 caliber handgun and had to reload several times to carryout all nine killings. No politically realistic gun control proposal for decades has attempted to bar access to such weapons and one is not going to emerge now. If President Obama could not lead a national movement for gun control after the Sandy Hook elementary school massacre, he sure isn’t going to do it now. Period.
A much bigger issue in my view is the question of how this crime is being characterized, and particularly the politics behind the alternatives of viewing it as terrorism versus a deranged act linked to some sort of serious mental illness. Many commentators on Twitter and in columns and Jon Stewart, have pointed out that early responses from politicians and mainstream media figures shied away from identifying the perpetrator Dylan Roof as a terrorist; raising instead the possibility that mental illness lay behind this terrible act of violence. The critique is that white people who kill are rarely described as terrorists (or other categorical terms like “thug”) while people of color, especially African Americans and Middle Eastern or South Asian Muslims are. This point is indeed well taken. In media and lay discussions, mental illness tends to emerge as an explanation for behavior that strikes the speaker as out of character for the type of person involved. Since we typically know little about the actual people involved, at least initially, race is hugely salient in forming this judgment about character. When the people unreflectively assign white people who kill the label “mentally ill,” the assignment testifies to the speaker’s probably unconscious assumption that white people do not engage in unprovoked acts of violence (but that African Americans and Muslims, do).
It would be a mistake however to go further and assume that any claim of mental illness to explain a person’s acts of violence is dissembling. There are many homicides where the delusional beliefs generated by psychotic processes are clearly at work. James Holmes, who killed 12 people in an Aurora, Colorado movie theater in 2012, is a likely example. Few people can make sense of his crime without relying at least in part on his well-documented history of mental illness. As is typical is such cases, even the prosecution acknowledges the presence of mental illness but asserts that it fails to reach the extreme threshold established for a legal “insanity” defense in most states today (what amounts to delusions so profound that they prevented the perpetrator from understanding that nature or societal proscribed nature of their conduct). It is also not uncommon for people living with psychotic mental processes to be attracted to extremist political ideologies and conspiracy theories, because their content often has a striking affinity with the paranoid pattern of psychotic ideation. Such people may sound like racists or anti-Semites but their narrative comes from the disease, not their values. At the same time we should not be surprised that many of the participants in clearly politically motivated terrorist attacks, who are drawn to the values behind those politics, also have mental illnesses (not typically the leaders, but sometimes those persuaded to undertake the fatal or at least very dangerous acts involved).
Putting aside the legal test of insanity, what should be most salient to the public conversation about such acts of extreme violence is whether a particular incident seems to be best explained by political beliefs and values or by psychotic mental processes that lie behind it (even when both are involved). Are the key ideas behind the crimes (and there always are key ideas, describing violence as senseless is almost always incorrect) rooted in the subject’s values, long-term beliefs, and commitments? Or are they more likely to have been filtered from the ever available stream of hateful ideas through a mind disordered by disease. Or to put it another way, is the best way to prevent another such incident to expand mental health screening and treatment services, or does it require a political process of some sort (from war to conflict resolution to social movements).
In what follows, I would like to offer a preliminary (and possibly flawed) framework for thinking about acts of violence so awful that normal human motivations (jealousy, anger, despair) simply do not seem sufficient. I start with a typology that moves from those most clearly influenced by disease, to those most clearly influenced by values
No political beliefs or values can explain the Aurora killer, James Holmes’ actions. Even his prosecutors view him as person motivated by individual considerations, e.g., to achieve fame, or in response to being rejected by a girlfriend, (considerations that rarely result in actual violence where mental illness is not at least a background factor). Whether or not the jury decides that Holmes’ deserves the death penalty, few if any people can seriously believe that executing him will prevent the next movie theater massacre. Meanwhile, expanding mental health screening, and treatment, certainly for those seeking to purchase assault weapons, would provide at least some measure of protection.
At the other extreme are the September 11, 2001 terrorist attacks on the World Trade Center in New York and the Pentagon. At least one of the convicted plot participants, Zacharias Moussaui, exhibited behavior throughout his trial (in which he was most problematically allowed to represent himself) consistent with major mental illness (although he was found competent to stand trial, that is a fairly low threshold that excludes most defendants with mental illness). Yet even if Moussaoui and other plot participants were in part influenced by their mental illnesses to become involved, the plot as a whole had an overwhelmingly political logic. The attack appears to have been motivated by a strategy of provoking a “clash of civilizations” between the Christian west and the Muslim world (a strategy that seems at least partially successful in generating the Iraq and Afghanistan wars, the rise of Isis, and a host of other developments still far from settled). There is no easy political option to resolve terrorism associated with militant Islamic extremism, but surely politics represents the only realistic path. Few could believe that even the most generous expenditures on mental health screening and treatment (presumably on a global basis) are unlikely to significantly reduce further acts of terrorism.
Of course, I do not mean to imply it will always be easy to determine whether a particular atrocity is best understood as a reflection of political values or diseased ideation. Consider Theodore Kaczynski, known as the “Unabomber” for his practice of sending letter bombs to scientists and engineers involved in research that Kaczynski associated with the rise of technological civilization. Kaczynski’s manifesto, published originally in the New York Times and the Washington Post, in a controversial deal to end his attacks, presented his belief that industrialization has done irreparable harm to both nature and humanity and that therefore killing people in an attempt to halt it was justified. His ideas clearly have a political logic, one that resembles the beliefs of others involved in what is sometimes labeled “eco-terrorism”. Still, a close reading of the manifesto suggests a highly idiosyncratic perspective and narrative, shared in fact by few others; and acts far more violent than those typically undertaken by even militant environmentalists. Mental health screening (perhaps of overachieving academics), seems more promising than a political or security strategy to stop the next Unabomber.
This brings us at last to Dylann Storm Roof, the perpetrator of the Charleston AME massacre. I would not be surprised at all if forensic psychiatric examination by both defense and prosecution turns up evidence of mental illness, but the logic of his act and even the words he articulated have a clear political sensibility to them; one of unremitting racialized hatred and fear of African Americans. We still do not know precisely where in his life, these ideas and values began for Dylann Roof. I would begin by looking at the beliefs of his parents (does anyone know whether spelling Dylann with two “n’s” and giving the middle name “Storm” is any indication that his parents were involved in Neo-Nazi or white supremacist groups and ideologies?). Most of us get our ideas about race and racism from our parents. Mine (of blessed memory) were white allies of the civil rights movement and taught us to believe that the project of completing emancipation was the defining mission of the modern American nation. The discovery of Dylann Roofs’ online manifesto of race hatred provides a direct link to the thinking and language of existing white supremacist organizations. Unlike Kaczynski’s, Roof’s ideas are not idiosyncratic or even marginalized but belong to a well-developed body of ideas that once dominated Southern politics and continue to have an important influence nationally on Conservative and Republican politics. Indeed, Roof specifically cited the ideas of the Council of Conservative Citizens, a well-known white supremacist group with roots in the violent segregationists of the 1960s and continuing interest in the Republican Party.
What was the strategy? Roof reportedly told a friend that wanted to start a race war. I’m no expert in the logic of race wars, but this rings true to me as the primary motivation for the act. It explains the target, a historic church long a focus of white terrorism against African Americans, and where the victims would draw the maximum amount of outrage and clarity as to the racial meaning of the murders. Likewise the date, June 17, corresponds to date on which a slave rebellion was planned to launch in Charleston in 1822 and which involved Denmark Vesey, a former slave who was a founder of Emmanuel AME Church.
I would love to hear from some historians on the origins of the “race war” trope in American racist ideology. Its most significant modern proponent until now is Charles Manson, who taught his to prepare for an apocalyptic race war following a black uprising that would overthrow the United States (a fear he apparently shared with J. Edgar Hoover) and that his Family would then emerge to lead what was left of civilization. Manson orchestrated the murders of privileged white victims and then sought to blame the crimes on African American by leaving stolen items in clearly black neighborhoods. He imagined a law and order crack down on African Americans would lead to an uprising and ultimately his rise to power. Manson called his plan “Helter Skelter” after the Beatle’s song which he believed contained a prophesy of these events. (Manson, originally from Oklahoma, has been racist all his life, recall the swastika he carved on his forehead during the trial, who assumed necessarily inferior blacks would lead the country into a disaster and leave his Family in charge).
The whole idea of race war seems to be a distinctively white supremacist fantasy/nightmare. I could be mistaken, but from my knowledge of history, even armed and militant African American groups have always used violence defensively, or to eliminate perceived movement traitors, not to provoke a race war that African Americans, very much a minority demographically and in political influence, would almost certainly be the ultimate victims of.
So how to prevent another racist massacre? In my view the political option of an aggressive social movement to finally drive white supremacy out of its existing strongholds in American society. Don't get me wrong we should spend a lot more money on mental health as well. Compared to money spent on prisons, seeking the death penalty, or even hiring police officers, mental health spending is probably a good way to prevent violence in general. I fear, however, that it would do little to prevent the kind of racist violence we are dealing with here. So long as white supremacist narratives are spread by groups like the Council of Conservative Citizens, and sheltered by the powerful Republican Party, there will be no shortage of marginal characters, some of them with mental illness, attracted to its ideology and willing to put their ideas into action.
If we are to prevent this kind of atrocity, a political strategy is clearly necessary. My colleague here on Prawfs, Rick Hills worries that if forced to choose between their Southern heritage and American values, they will choose the former. I feel we need a strategy that forces that choice. (We’ve had Fifty years of letting them slide by on being American and Confederate, its time to choose). It consists of calling out, boycotting, demonstrating against and generally shaming the leadership of racist political organizations, and politically destroying any politician that doesn’t place miles of distance between themselves and this entire ideology. This requires acts of public memorialization such as have been undertaken in other countries with a history of systematic racist violence, like Germany. This means cleansing the American South of the residual honorific symbols of the Confederacy: everything must go, flags, statutes of Confederate generals, or parks or streets carrying their names. This also must extend to the segregationist descendants, of the Confederacy. Pictures of segregationist governors should be removed from state houses (they can go to museums along with the flags and statues). The Congress of the United States, dominated by segregationists for most of the 20th century, should remove any monument to and posthumously condemn all of the major figures (most prominently former South Carolina Senator Strom Thurmond). Just as importantly it is time to finally make the history of white supremacy and racist violence against African Americans visible in every American city through museums (a new Smithsonian museum of African American culture is about to open in Washington D.C.), public monuments, and street names (Charleston can have nine new ones).
Fortunately, American society is lot less prone to race wars than white supremacists believe in their fevered fantasies. Manson’s murders failed to launch one (although they did help fuel the punitive turn in American penal policy) and clearly Dylann Roof has failed in his ambitions as well. But let us make sure his victims did not die for nothing. Their blood calls on all Americans of conscience to join an unrelenting cultural war against white supremacy in all of its manifestations.
Monday, June 22, 2015
Strange Bedfellows #8: Precedential Floors and Ceilings
This post is part of the Strange Bedfellows series.
The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law. But as we all know, courses in Constitutional Law are required at most schools only in part for their substance. Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate. The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.
A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents. Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?
The question is presented unusually cleanly in Caperton v. Massey Coal (2012), which asked whether an elected judge violated procedural due process by failing to recuse himself from a case where one of the litigants had spent millions on advertising to put that judge into office. Two earlier SCOTUS decisions involved the due process ramifications of judicial recusal. Tumey v. Ohio (1927) found that it violated due process for a judge sitting without a jury to decide cases under a system where his compensation would be greater if he convicted than if he acquitted. (As it happens, this structure was also part of the federal Fugitive Slave Act of 1850, but the due process implications were not explored at the time.) In re Murchison (1955) found that a due process violation where a judge tried a criminal contempt charge that occurred before him during an atypical grand jury proceeding. For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well. For the Caperton dissenters, the two cases were a ceiling: “Until today,” wrote Chief Justice Roberts, “we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge.”In Ingraham v. Wright (1978), the plaintiff secondary school students argued that their public school district’s use of corporal punishment amounted to cruel and unusual punishment. All of the previous SCOTUS decisions decided under the Cruel and Unusual Punishment Clause involved criminal defendants objecting to their sentences or the methods by which the sentences were carried out. For the majority, the precedents represented a ceiling, indicating that the Clause would protect no more than the criminal defendant, and hence offer nothing to a public school student. For the dissenters, the precedents were a floor: they meant that, at least, cruel and unusual punishments could not be inflicted on criminal defendants, but perhaps others were protected against them as well. (Ingraham is an excellent showcase for a number of other methods of interpretation, including disagreements over the meaning of text, history, consequences, values, and constitutional structure; for this reason I have had good success starting my courses with it, and now my casebook.)
Similar floor/ceiling debates occur in canonical cases involving other constitutional topics, such as the state action doctrine—Jackson v. Metropolitan Edison (1974)—and substantive due process—Moore v. East Cleveland (1977) and Michael H. v. Gerald D. (1989).
Once you have sensitized students to how different judges can approach precedential ceilings and floors, you can then see a very similar contrast of interpretation with regard to the text of the Constitution itself, particularly with regard to enforcement of unenumerated principles. If the two precedents from Caperton are a ceiling, limited to their facts, then perhaps Bill of Rights should be read the same way: as precise enumerations of narrow principles without Griswold-style penumbras that form a subterranean rational continuum. And the same could be said for the various Art. I, §10 limitations on state commerce regulation: they mean only what they say (no duties of tonnage, no non-essential imposts on imports or exports), and do not contribute to a larger rule against state laws that impose burdens on interstate commerce in unenumerated ways.
Sure enough, one often sees exactly this combination: Justice Scalia opposes broad applications of the dormant commerce clause doctrine and substantive due process, and frequently reads precedents narrowly as well. The reverse combination is usually true for Justice Breyer.
Query: In choosing a casebook for your class, to what extent is the book's cost (to the students, of course) a consideration for you?
Walker meets Wooley
In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.
So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.
It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.
[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.
Sunday, June 21, 2015
In Memoriam, Roderick M. Hills, Sr.: Fathers' Day Thoughts on Work-Family Balance
My Dad died last Fall. I have always admired how he lived his life, and, on this Father’s Day, I would like to share some thoughts about one important aspect of his personality that might have special interest for young lawyers and law students: Dad’s arguably irrational exuberance about his work. His boundless optimism and excitement about his professional life (as a lawyer, government official, anti-corruption crusader, among other things) had its costs – most obviously as a distraction from his four kids. But it had benefits for us kids as well. After the jump, I’ll offer some reasons for why a father’s love of his work can be an important part of what it means to a good father.
It is not as if he started out with a lot to be optimistic about. He was born in Seattle in 1931, at the beginning of the Depression, and his father had to struggle to find work. Grandpa Ken ended up taking Dad and Grandma Sal to Whittier, CA, eventually finding work at an aircraft factory in Southern California. (I was never quite sure about Grandpa Ken’s job: I know from family stories that he worked the line, and, after Dad’s death, I discovered Grandpa’s wallet among Dad’s effects, with a business card displaying the title “spare parts specialist”). Dad played football at Whittier High and managed to score a scholarship to attend Stanford College and Law School, playing football for Stanford and working numerous odd jobs – orange selling, bar-tending, lawn-mowing – to pay for his education. The competing time burdens did not hold him back: he won a clerkship with Justice Stanley Reed, returned to California as an associate at Musick, Peeler, & Garrett, was voted a partner, and then, in 1962, began a long career of not having a long career at any single place.
With a daughter on the way (my older sister, Laura), he quit Musick, taking several partners with him to form, with Mom, the law firm of Munger, Tolles, Hills, & Rickerhauser. The firm was founded (and remains) a bit of a New England town hall democracy. Dad required every partner to take a sabbatical, not only in order to re-charge their batteries but also to spread their clients around to other lawyers in the firm. He loathed the practice of rainmakers’ farming out “their” clients and taking a feudal lord’s cut. Every partner voted on every partner’s salary publicly at Munger, Tolles, on a “Grid” open for all to see: The value of rain-making versus logging hours or managing the office was up for collective decision.
Forming Munger, Tolles was Dad’s first act of arguably irrational professional exuberance. For the rest of his career, a bird in the hand, for Dad, was, well, ...boring. He became the patron lawyer-saint of near-lost causes. In 1968, he was co-chair (with Leon Panetta) of U.S. Senator Tom Koechel’s doomed effort to stave off conservative primary challenger Max Rafferty. (That challenge was an early version of what became a national ritual of purging the California Republican Party of moderates by destroying the California Republican Party. Koechel, a sponsor of the 1964 Civil Rights Act, was attacked and defeated by the race-baiting Rafferty because Koechel was too liberal to be a good Republican, and Rafferty was later defeated in the general election by Alan Cranston).
When Munger, Tolles became an well-established firm, Dad left to be the CEO of Republic, Inc., a near-bankrupt corporation that required desperate negotiations with creditors to save its skin. (Dad managed to save Republic through regular commutes to Swiss creditors, memorialized by little metal Swissair planes in my toy collection). Dad served as President Gerald Ford’s deputy counsel, where he was the White House’s liaison with the Church Committee investigating the CIA’s misbehavior. As the President’s man, Dad’s brief was to defend presidential prerogative over intelligence, but, as Fritz Schwarz, Church’s counsel, later told me, he was regarded as a scrupulously honest broker by the Democrats. Ford made Dad chief of a task force charged with reviewing the costs of excessive regulation. To the shock of many, Dad called for the elimination of the CAB, the ICC, and much of the regulations of telecommunications. Ford bought the argument that trucking and airline regulation largely served the interests of industry at the expense of consumers and drafted a series of deregulatory proposals that, to its credit, the Carter Administration championed and pushed through. As chair of the SEC, Dad continued his crusade against what he took to be pointless rules by authorizing trading of put options. In response to the Lockheed corruption scandal, Dad championed a system for corporations’ disclosing bribes and other corrupting payments to foreign governments. His idea was that putting the bucks on the books and eliminating slush funds would bring such payments under control.
Dad lost on that last proposal, when the Carter Administration championed an outright ban in the FCPA. Dad spent most of the 1980s, in fact, cheerfully losing many of the battles that he provoked. He left government to head up Peabody Coal right in the middle of a nationwide coal strike. A veteran labor lawyer, Dad saw no point in trying to bring the UMW to its knees through a united front of operators: To the ire of the other coal companies, he settled separately with the union and promptly lost his job. As Sears’ lawyer, he engineered Sears’ purchase of Coldwell Banker and urged Sears to move into retailing consumer services, arguing that Sears would be wiped out by the new “Big Box” retailers if it stuck with its old model of peddling consumer goods. Although Sears made Dad chief of a “Sears World Trade” subsidiary, the old guard was not comfortable with his call for Sears’ transformation into a services retailer, and so he was fired again. (As Dad predicted, the unreformed Sears soon found its way into bankruptcy and obsolescence). Dad made a reputation during the late 1980s and 1990s for coming on to boards of troubled corporations, chairing their audit committees, cleaning up the books, and replacing the incumbent management with a better crew. He once even launched a successful proxy fight against the management of Oak Industries, on the board of which he sat. These campaigns for corporate reform, however, did not always succeed: With Waste Management, the new crew failed just as badly as the old, to Dad’s embarrassment.
Dad’s failures as much as his successes gave him a passion for corporate reform. A successful businessman and business lawyer, he did not believe that corporate managers could be trusted with power to set their own compensation and manage their own books. He was a champion of Sarbanes Oxley and, more generally, the idea of cleaning up crony capitalism through independent auditors and directors. He won awards for being a model independent director, and he founded a program for improving public and private governance. He helped review and reform the UN “Food for Oil” program. (He used to complain that the UN’s personnel system was so rigid that it prevented elimination of conflicts of interest that Sarbanes Oxley required of private companies).
Where did all of this endless aspiring and working leave Dad’s family? It is an economic impossibility to maximize two different variables simultaneously. Last summer, Dan Markel posted a moving message from the widow of a legal academic describing the costs to the family from her late husband’s hard-driving work habits. Candor requires me to say that some of what she said applied to Dad’s work and our family. Keep in mind that Mom was working jobs at least as demanding as Dad’s, serving in the cabinets of two presidents, negotiating NAFTA, heading up major law firms, keeping the household together when Dad was out negotiating loans with creditors in Switzerland. The four kids were sometimes jealous of those “other kids” – i.e., their parents’ work -- who got so much of their parents’ attention. Looking back on my parents’ life together when we four kids were still at home, I am amazed that life went as smoothly as it did.
Looking back at my experience with Dad, however, I have come to think that competition between a parent’s work and their care for family is not entirely a zero-sum game. Dad’s sometimes irrational exuberance about his work – his excitement, indignation, zest for a fight, self-deprecating stories of his defeats, optimism about the victories to come, stubborn integrity – rubbed off on all of us kids. It is not merely that he modeled a decent work ethic for his children. It is also that he gave us a model of work being a source of pleasure and nobility, not just a source of anxiety and ambition. Dad never really climbed any career ladder: He quit or was fired from jobs that more self-serving people would have clung to for pay or prestige, because he was itching for some new reforming project. He did not kvetch about his defeats: They just became another war story, ending with a moral for the next big project.
We kids, of course, did not know much about the details of Dad’s work when we were little – but the enthusiasm rubbed off on us. Work was not something to be suffered but enjoyed. Time was too short to wait for the weekend. Your job had to have deeper meaning than merely a source of cash or a rung on a ladder. As we got older, we could engage more with the substance of what he cared so much about. We built a relationship on our work. I’d discuss with him cases, politics, the quagmire of Washington DC, the corruption inherent in everyone, the consequent need for separation of powers everywhere, in private corporations as well as public government.
A week after Dad died, I was scheduled to teach Free Enterprise Fund v. PCAOB, a case in which Dad had organized three other former SEC chairs to file an amicus brief urging the Court to sustain the PCAOB. Dad and I had often discussed the case and, more generally, being a realist about how agencies like the SEC worked. (Dad scoffed at the dogmatic formalism that the power of a politically accountable actor to fire an executive official was necessary or sufficient for true political control). Preparing for my class, I reached for the ‘phone to call Dad and chat about the case one more time before I realized that our conversations about law and politics were now over for good. It was the first of many such moments, where I realized that Dad’s good work had become part of Dad’s being a good parent.
I recall dimly that Louie C.K. had a quip in one of his stand-up routines about turning forty. When you are young, he said, you are filled with anxiety about whether your life will suck, so, when you turn forty, you can finally heave a sigh of relief that your life is almost over.
Dad never heaved that sigh of relief. Life for him was not about those sorts of external rewards that allegedly keep life from sucking. It was filled with excitement about the next big project. At Dad’s memorial service, Paul Volcker quoted from an email that captured Dad’s energy and optimism. In the email sent from his hospital bed just days before his death, Dad wrote that “minor medical mishaps have kept me in Johns Hopkins Hospital, out of the office” but that he would soon have some proposals for SEC reform. He ended by saying that “[t]here are more issues than I can possibly deal with in the time I will have.”
That was Dad’s attitude towards his work: There are more projects than you will ever be able to squeeze into the time you will have. So don’t fret about your grievances and defeats but instead get busy, be excited, get to work.
Not a bad lesson to give to your kids, and something to be weighed in the work-family balance on the “family” side of the scale.
Happy Father’s Day, Dad … and any other hard-working dads out there.
Friday, June 19, 2015
Is Honesty about American Racism Really the Best Policy? Some Thoughts on the Charleston Church Massacre and the Ambiguous Value of Candor
It is completely predictable in our polarized nation that there are two competing narratives about the Charleston Church massacre. One narrative is that the actions of Dylann Roof, the young murderer, reflects and is inspired by a toxic and pervasive brew of wistfully nostalgic white supremacy and racist paranoia that swills around the internet and spills out into the open in Freudian slips and occasional acts of terror. Such murders are not the random, inexplicable acts of lone lunatics. They are instead a disturbed individual’s taking literally the day-to-day racist fantasies and nostalgia of millions of white Americans, attitudes that foster websites like Stormfront.org and practices like the flying of the Confederate flag outside public buildings. This narrative is best captured by Jon Stewart’s passionate denunciation of the widespread tendency to treat Roof’s act of racial terrorism as a merely tragic outburst of individual lunacy rather than an all-too-predictable product of widespread American racism. Key to Stewart's eloquent appeal was his tying white Southern fondness for the Confederate flag and for naming streets after Confederate war heroes to racism generally and Roof's racist attack in particular.
The second narrative, mostly from conservative sources, is that pervasive contemporary racism had nothing to do with the Charleston massacre. In one version, that attack is said to be the product of anti-clerical bias requiring churches to arm their parishioners to protect the faithful. (Such a spin was nicely captured by Fox New’s interview of E.W. Jackson, a black pastor at a church in Virginia). The less implausible version of this narrative is that Dylann Roof was indeed a vicious racist but that his racism is an atavistic expression of a long-extinct ideology rather than a reflection of widespread contemporary attitudes and fears. (This version of the Roof-does-not-reflect-America response is well captured by the Wall Street Journal’s op-ed, which attributed Roof’s murders to some “problem that defies explanation beyond the reality that evil still stalks humanity”).
As a matter of common honesty, Stewart’s interpretation of the massacre strikes me as far more accurate than Fox’s or the Wall Street Journal’s spin. Roof’s rhetoric – fear of black rapists’ attacking white women, for instance -- is not only as American as apple pie but as contemporary as Stormfront.org or talk radio. The numbers of Americans who endorse Roof’s attitudes, if not his violence, can be numerically tracked at racist websites and measured through simple social science experiments. That alienated individuals (Dylann Roof, Anders Breivik, etc.) would take such widespread attitudes and rhetoric as inspiration for a mass killing is no more surprising than that (for instance) alienated young Muslim men would draw inspiration for murder from anti-semitic pamphlets in Middle Eastern bookstores and anti-semitic sermons at extremist mosques. Conservatives’ stance that they are shocked, shocked, by Roof’s “inexplicable” attack strikes me as just as implausible as the analogous claim by moderate Muslims that “extremist” Islamic violence bears no connection to Friday sermons at major mosques comparing to Jews to pigs and apes.
Nonetheless, if I were to judge these competing narratives by their utility rather than their honesty, I confess that I prefer the Fox News spin. My reason, elaborated after the jump, is that Fox News’ approach has a prayer of creating a cross-racial rural coalition rooted in church and guns. By contrast, Stewart’s Naming & Shaming strategy seems not only futile but dangerous to me: Convince “mainstream” Southerners that their condemnation of racist violence is inconsistent with their embrace of Stonewall Jackson and the Confederate flag, and you might find that they dump the former rather than the latter.
As I noted five years ago on this blog, everyone is ethnocentric, meaning that they "tend to divide human society into in-groups and out-groups and use those divisions to reinforce their own sense of identity and self-worth." One should predict, therefore, that white, middle-class, suburban or rural, Southern, and evangelically Protestant Christian homeowners will develop a bias favoring similar people.
Stewart's Naming & Shaming strategy invites the scolded listener to consider whether this general bundle of cultural loyalties (for instance, an affinity for Confederate flags) is causally associated a tendency towards racist violence. It seems to me intuitively obvious that there is such a link. Such a Naming and Shaming strategy, however, poses the risk that, rather than jettison their general cultural commitments to Southerness, the target audience will instead circle the wagons. Maybe it is just my paranoia, but it is not obvious to me which horn of the dilemma white South Carolinians would choose if they were convinced that there was an inconsistency between their general celebration of "Southern-ness" and their condemnation of a racist church-shooting.
The Fox News strategy, for all of its intellectual dishonesty, has the single virtue of reenforcing the aversion to racist violence by tying that aversion to the target audience's other cultural commitments. "If you love the NRA and attend church regularly," the Fox News interview implies, "then you should rise up to demonstrate against the anti-Christian Dylann Roof and arm Black churchgoers against others of his ilk." Painting white supremacists as anti-Christian rather than pro-Confederate, in other words, seems like a smarter way to peel off Southern support for the frequenters of Stormfront.org and similar venues. Likewise, painting black churchgoers as potentially pro-gun seems to me to be a smarter way to ground a cross-racial rural coalition than insisting that white Southerners tear down their statues of Robert E. Lee, re-name their streets that now commemorate Confederate generals, and lower the Stars and Bars.
None of this is to condemn Stewart for his eloquent speech (which probably had few listeners sympathetic to the Confederacy who could be alienated by it). Instead, I offer merely a limited endorsement of the Fox News approach. The admittedly dishonest down-playing of the role of racism in white Southern culture seems better calculated to me for the forging of cultural and ultimately political ties between white and black Southerners than the jeremiad against the Confederate symbols that many whites hold near and dear. Sometimes, in short, honesty might not be the best policy.