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Tuesday, November 15, 2011

Quote of the Day

Courtesy of the New York Times's story about the cert grant in the healthcare litigation, this quote from Randy Barnett:

“It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law,” said Randy E. Barnett, a law professor at Georgetown.

As usual, I'm not sure what to make of this quote, although I don't want to be too disingenuous about it.  The problem is not that I don't know what he's trying to do, but that it makes me wonder about how one manages to be a legal advocate, a moral entrepreneur (and surely Randy has earned that title by now), and a scholar all at the same time.  I see nothing wrong with law professors acting as lawyers, including in high-profile cases; and I understand that lawyers, when acting as advocates on a high-profile case, will play to the gallery.  (Although I'm not sure which gallery a quote of this kind is really aimed at.  The Supreme Court?  The public?  The National Review Online?  Fundraisers?)  But it does seem to me that it's not quite that easy to remove one's scholar's hat, and that coming from a scholar a quote of this sort seems a little off-kilter.  

Of course, a legal scholar can be a legal realist, so perhaps the word "unpopular" is a kind of legal realism at work.  Or perhaps Randy is voicing a majoritarian view of constitutional law.  That said, it seems odd coming from someone who has written in his scholarship such things as the following:

"our Constitution is as much about protecting the minority from the tyranny of the majority as it is about majoritarian rule"; "Reading a right of state majoritarian rule into the Ninth Amendment is particularly odd given that this provision was conceived and formulated, as all acknowledge, by one of the more antimajoritarianfigures of the day: James Madison. Indeed, in a variety of fora, Madison consistently expressed his view that popular majorities, especially those at the state level, were the principal threat to “private” or individual rights"; "On both the political left and right you find the belief thatmajoritarian voting is sufficient to protect the rights of the people. Or at least they believe this when their side is in power. The founders personally experienced a purely majoritarian system in their post-revolutionary states and rejected it"; "Indeed, it appears that privileging the status quo is inherent in Post and Siegel's account of legitimacy. Holding prospective justices to conditions of “democratic accountability” seems to require their adherence to results in cases that a majority of the public currently like or their rejection of cases that are currently unpopular."

Perhaps the best insight into what Randy is getting at in this quote, other than public relations, comes from a recent article of his: "Now, I am not suggesting that the Supreme Court would strike down the individual mandate simply because a majority perceived it to be unpopular. But I do think that, if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid constitutional objections they might otherwise resist."  So, it would appear that Randy is trying to emphasize the law's unpopularity in order to encourage a majority on the Court to be more "open to valid constitutional objections they might otherwise resist."  Fair enough, although it would be nice if his quote in the Times had been a little more candid and said something like, "This law is unpopular, so the Justices should feel free to be open to constitutional arguments they might otherwise resist."  

If that's his aim, I must say I still disgree with his assessment.  It's my view that, from a more or less realist perspective, the Court is willing to strike down laws that are not only highly unpopular, but uncontroversially unpopular.  To use Larry Lessig's terms from back in the day when he used to do constitutional theory, it is willing to strike down laws that have moved from the realm of contestation into the realm of being uncontestably unpopular.  Even if the healthcare law is "unpopular" -- and that's a far more contested point than Randy's quote admits -- it is hardly uncontroversially unpopular.  It is very much in the realm of contestability, thanks in no small part to Randy's own efforts.  If it were a popular but purely symbolic law, like the Gun Free School Zone Act, the Court might be willing to strike it down anyway.  But to strike down a major piece of public policy, one with actual rather than symbolic effect, and one that is not uncontroversially unpopular but rather the subject of major public controversy, with substantial numbers on both sides, is a horse of an entirely different color.  I should think that the Court, given its history, would be more reluctant to strike down a law like this, especially if there are avenues open to it to avoid reaching the merits at all.  Of course, this prediction and five dollars can get you a latte at your local Starbucks.  But I thought it was worth taking Randy's quote very seriously and parsing it out--although, in fairness, I assume he didn't really mean for anyone to take the quote all that seriously. 

Posted by Paul Horwitz on November 15, 2011 at 10:00 AM in Paul Horwitz | Permalink


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Marty, thanks again for your comment. Every time I post something that is critical about someone in particular, I worry forever after about whether I was being unfair. Let me answer your comment as best as I can, including some fundamental premises:

1) I know Prof. Barnett is a colleague of yours. I might add that although I've only met him a couple of times, I found him quite friendly.

2) I know he's counsel in the healthcare litigation; indeed, my post was premised on that fact. Perhaps the Times should have mentioned it in the story, but I at least was already aware of that fact.

3) Beyond that, as I said in the post, Randy has become a "moral" or "norm entrepreneur" in this area, something very few law professors or academics in general achieve. While I mean that only in a descriptive sense, it's certainly no mean feat.

4) That combination of roles -- counsel (and norm entrepreneur), and scholar -- is what led to this post. I agree that someone wearing a lawyer's hat might certainly make a statement of the kind Randy makes here. So would a game-changing moral entrepreneur. A scholar, however, would be in a somewhat different position. It's the tension between occupying several roles that interests me -- not just for Randy, but for anyone in this position. In a sense, it relates to what I wrote about "scholars' briefs" too. It's that broader issue, one that Frank touches on above, that fascinates me. It wasn't aimed at Randy solely, although it's true that I think that both his prominence and his particular style of mixing his roles makes him an especially salient example, and, if truth be told, how he mixes those roles concerns me.

5) Moreover, to the extent that he's speaking as counsel, or as a public figure, of course his comments are fair game for parsing and criticism. I don't think it's picking on him; he's speaking out on major public issues from the position of a public figure, and naturally one who disagrees with him is entitled to publicly criticize his quote for being simplistic or inaccurate. Similarly, qua scholarly statement (although I don't think that's what it was), I also think the statement is simplistic, for the reasons I gave above (namely, that there is a difference between a wholly unpopular law and a contested law).

However, on reflection, I think there is one problem with my post. Just as I have been concerned about the mix of Randy's different roles and how it plays out, so I may have done something of the same thing. I should have distinguished clearly, to the extent possible, between my exploration of the issue of professors who are also counsel or moral entrepreneurs; my criticism of his statement qua statement of a public figure; and my criticism of his statement qua statement of a legal scholar. Not clearly distinguishing the three made the post perhaps unduly harsh. My apologies.

I should also add, by way of pointing out my own personal weaknesses, that I gave a couple of quotes to the Times yesterday, just minutes after posting my criticisms of Randy, that were themselves pretty cheeky. I did try to make sure they reflected my honest views as a scholar, but I gave them a pretty high rhetorical spin level. No one's perfect -- including me, and including Randy. That should make me properly humble in voicing my criticisms, although I think it shouldn't deter me from making them.

Posted by: Paul Horwitz | Nov 16, 2011 9:02:07 AM

I just think it's unfortunate that law professors engage in this kind of puffery when talking to reporters. What does a quote like this add to the Times readership's understanding of the case? The knowledge that somewhere there's a pretty credentialed professor who thinks the mandate is unconstitutional? Glib, contentless comments like this reduce public discourse about the law to the sort of inane partisan game you see played on cable coverage of domestic politics. Readers of this article will think, "the conservative prof says one thing, the liberal prof says another, the Court will similarly vote along political lines."

Posted by: Asher | Nov 15, 2011 6:29:05 PM

If you're really concerned about what he's "getting at" you could, you know, just ask him.

Posted by: Joel | Nov 15, 2011 5:58:20 PM

Marty, I appreciate the comment. I've been rushing around for surgical per-admission testing and parental stuff today, but I'll respond when I get a free moment. Internet time being what it is, I wanted to let you know I wasn't ignoring you and do want to respond. Best wishes till then.

Posted by: Paul Horwitz | Nov 15, 2011 3:03:19 PM

I think this raises a somewhat broader question. To me, saying unworkable and unpopular undermines the unconstitutional claim. I presume law professors are cited for legal expertise, not that of policy or popularity. Setting aside Randy, the use of the phrase says to me: "I hate this law, so therefore I will consider it unconstitutional regardless of the true law." Of course, the rejoinder to my point is that law professors commonly let their ideology influence their legal opinions, so this is merely more transparent.

Posted by: frankcross | Nov 15, 2011 2:21:28 PM

Paul: Randy not only is my colleague here at GULC, but also happens to be counsel to the private respondents in the case (see http://aca-litigation.wikispaces.com/file/view/NFIB+Response+Brief+%2810.14.11%29.pdf). Surely his quote is fair game for the lawyer to a (private) party in the case, regardless of whether it would also be appropriate for someone speaking purely in his "law professor" capacity.

The problem, I think (aside from the merits, on which it will come as no surprise that I disagree with Randy!), is that Randy should have been, but was not, identified in the story as counsel in the case.

Posted by: Marty Lederman | Nov 15, 2011 12:06:21 PM

It doesn't seem that mysterious to me. For one thing, this is one of the most prominent issues of the day in my field, and Randy is one of the most prominent public faces in this debate, and he's a law professor. Isn't that reason enough? I suppose it's also my view that in some ways his mixture of advocacy and scholarship has been particularly troublesome, and thus particularly revealing of the general problem. You may consider that inaccurate, but I don't think it's either out-of-bounds--after all, he's both a scholar and a public figure--or mysterious.

As to the first sentence of your comment, I quite agree. I would add that I think that the phenomenon of being both a scholar and a social crusader is always worth examining, even if it is permissible and provides a net social benefit; that I think it often raises important questions and difficulties, especially those concerning the duties of a scholar; and that I don't think those problems are confined to one side of the political fence. I think it's fair to say that my work has often examined and criticized people of a variety of political persuasions on these issues; one of the longest footnotes I've ever published delved into a contrast between Erwin Chemerinsky's views about Boy Scouts v. Dale and his views about Rumsfeld v. FAIR. You may disagree with my arguments, but I'm pretty sure I've been reasonably even-handed and fairly unmysterious about it.

Posted by: Paul Horwitz | Nov 15, 2011 10:31:29 AM

He's speaking to the NY Times. I don't think he gave it anywhere near as much thought as you are. It's a slogan for a newspaper that plays to that denominator. You don't read the NY Times for legal analysis, you read it like a Hearst paper.

Here Barnett is speaking like a member of the House, or an advocate. I recently saw Walter Dellinger speak on the Hosanna-Tabor case, and he was similarly anti-intellectual, playing to the crowd on behalf of his client.

Third, with a careful eye to grammar, he says unconstitutional AND unworkable AND unpopular, and only one of the three is a legal argument. He seems to be explicitly cabining popularity and workability FROM constitutionality, if you're a textualist.

Finally, you may be relying on the view that the Supreme Court is impartial, and that the sort of grandstanding that may snow a state or federal district court judge doesn't work on Anthony Kennedy. But I think that's probably wrong.

Posted by: AndyK | Nov 15, 2011 10:25:44 AM

There is a rich history of law professors doubling as scholars and social crusaders. Why you have consistently chosen to pick on Barnett is mysterious.

Posted by: Former AE | Nov 15, 2011 10:20:23 AM

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