Two Points on Affirmative Action

Yesterday was the big affirmative action argument at the Supreme Court, with Fisher v. University of Texas being argued for the second time. It's long been suspected that the case could bring about the end of race-based affirmative action in America, anywhere within the ambit of the Fourteenth Amendment's "state action doctrine" at least. Not surprisingly, the oral arguments were rather high-profile, and some remarks by Justice Scalia have become especially controversial. I just have a couple of points I'd like to make, both about Scalia's comments and about those of one of his colleagues.

First, concerning Scalia, a discussion of whose remarks and the theory behind them you can find here. He was, in a rather clumsy way, invoking so-called "mismatch" theory, the idea that affirmative action ends up putting black students in schools that are too advanced for them. A sophisticated version of this analysis might focus on the fact that, as a result of unequal policies at various lower levels of the American education system, black people are in general not prepared as well for the rigors of elite universities. Scalia, of course, did not make the sophisticated version; his remarks seemed rather to suggest that black people are actually just not as smart as white people, and will therefore be overwhelmed by going to white people schools. 

One thing to say about this is that it's not true, as the Vox explainer makes clear. Anothre thing to say about it is that it's racist. But I'd like to go a little further on that last point: in a lot of ways, Scalia's remarks, and to a certain extent the broader "mismatch theory" on which they're based, were channeling the basic logic of educational segregation. Of course, the actual logic of segregation was that it was bad for black people and that this was good because white people should be kept in a position of social supremacy over black people. But the avowed logic, the "it's good for everyone" logic, would have been a lot like this. Black people, for whatever reason, whether their innate talents or a legacy of admittedly unfortunate discrimination, just aren't prepared to compete with white people on an equal basis. It wouldn't be fair to them to push everyone into integrated schools. They need separate but equal.

This isn't to say that Scalia favors segregation (though honestly, who among us really doubts that if Scalia had been around in 1954 he would've been condemning Brown v. Board of Education as a lawless judicial usurpation?). It's just to say that some of the logic and rhetoric behind the anti-affirmative action movement can very plausibly be seen as a slightly watered-down version of the arguments against racial integration in the first place.

My other comment concerns an offhanded remark from the Chief Justice. The supposed benefit of affirmative action, since just improving the status of the African-American community is apparently not good enough, is diversity, and specifically the idea that diversity on campus will be good for everyone. (Obviously, affirmative action is only okay if it benefits white people.) One of the ways in which the state of Texas was arguing that the diversity fostered by affirmative action was good for everyone was about the dynamic within individual classrooms. John Roberts was skeptical of this idea, and at one point asked the lawyer for the state, "What unique perspective does a minority student bring to a physics class?"

Mr. Chief Justice, may I humbly submit that a minority student brings to a physics class the perspective that black and Hispanic people are also, y'know, people, and might actually be smart, or have something to say about physics? A "perspective" that is too often lacking? Along with its close cousin, the "perspective" that women are also people and might actually be smart or have something to say about physics; lord knows that one's been all too absent from the classroom for ages. I've never had the opportunity to experience it directly, but my sister has, and my impression is that that feeling of being not welcome does an awful lot to discourage everyone other than white men from even trying to participate, or pursue a career in these fields. That probably has an awful lot to do with why the historically black colleges are so much better at producing black scientists. They are, to use the cliched term, a "safe space" for black people to pursue science. And unfortunately, an awful lot of science classrooms just aren't safe, in that way, because there are just so goddamn few black people or Hispanics or women or whatever already there.

You might think that, in something like math or physics, there would be no such thing as the "black perspective" or the "female perspective." You might especially think that if you really didn't have much sense of how to empathize with the plight of the oppressed. And in a way, you would be right. But it's a funny thing about science: insight can come from anyone. Even if there's no "black perspective" or "female perspective," an individual black person or woman might turn out to have an insight that could change the world, or at least be kind of interesting. And if the world is set up in such a way that they're all strongly discouraged from even bothering to try to contribute, that insight might be buried forever. Sort of like how there isn't a black way to hit a baseball, but Jackie Robinson was still damn good at it. And so was Josh Gibson, it's just that he never got the benefit of someone willing to say, hey, maybe we should give these guys a chance.

The Importance of Abstract State Intent

Here's one of my meta-theories of constitutional law: a wide variety of tricky constitutional problems can be simplified by modeling the government as an abstract corporate person, and drawing inferences about its state of mind from its actions. Or, to put it another way, forget about trying to divine the "legislative intent" of specific flesh-and-blood legislators. Just think about what might have motivated a reasonable government to adopt this measure. I'm most accustomed to thinking of this in the Equal Protection context, where my idea is that the state mayn't ever hold the belief that any of its citizens are inferior, and in the context of the religion clauses, where my idea is that the state mayn't ever adhere to a "comprehensive doctrine," e.g. a religion or a specifically atheist worldview, as opposed to a secular lack of any theological beliefs at all, positive or negative.

Antonin Scalia, Legislator from the Bench

It's not exactly news that the very same conservative jurists who love to accuse liberal judges of "legislating from the bench," i.e. making up justifications at the policy level for imposing a preferred outcome on society against the will of the legislature, often engage in exactly that activity. Indeed, I think they "legislate from the bench" a lot more than the liberals they're critiquing. Still, a recent trend in Antonin Scalia's jurisprudence takes this to terrifying new heights of literalness. During oral arguments about the Voting Rights Act today, apparently, Scalia questioned the idea that the 2006 VRA renewal's unanimous Senate passage vote was a point in its favor:

"I don’t think there is anything to gain by any senator by voting against this act. This is not the kind of question you can leave to Congress. They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful."

This is... odd. Specifically, it's odd in that it involves a kind of legislative psychoanalysis, trying to logic out various reasons why Congresspeople acted as they did (that obviously make those actions look good for Scalia's cause) or what they would have done in some alternate universe. It feels very similar to the passage from the health care cases dissent where, well, I assume it was Scalia, went off on some weird line of thinking about how the PPACA had been a "Christmas tree" bill with lots of only-slightly-related "ornamental" provisions dangled off the central trunk of the law. Therefore, he claimed, if the individual mandate had been eliminated from the bill as it made its way through Congress, the whole rest of the package would not have passed either. Now, the typical standard for severability is that the destruction of one element of the law would make the other elements function improperly in such a way that no rational legislator would want to pass the whole without the part. That's not what would have happened with the ACA: everything in that bill except for the central regulations/mandate/subsidies triumvirate was operationally independent from that central "trunk," so while it might be true that politically the ACA wouldn't have passed without its core, it certainly isn't true that the bill minus its core is nonsensical as policy.

In both cases, Scalia is refusing to take Congress at its word, or, rather, at its vote. Apparently, every Senator voted to renew the Voting Rights Act in 2006, including a good many Southern ones. Now, maybe that just doesn't count at all, if we're only interested in the constitutionality of this piece of legislation and not in what Congress thinks on the matter. (Although, from what I hear, the argument is that Section 5 is too narrow, i.e. punishes these 9 Southern states when they don't really have worse problems than anywhere else, and that therefore we have to strike it down. I'd think that on that question, which strikes me as absurd to begin with, the votes of Southern Senators might be relevant evidence.) But that's not what Scalia's saying. Rather, he's saying that those votes didn't count. Why? Because Antonin Scalia thinks that the motives behind them were other than pure. Oh, these were political votes? They voted for it because they thought it was popular? Because it had a nice-sounding name, implied by Scalia to be kind of Orwellian? Well then, I guess we can infer that all the Southern Senators voting for the VRA actually thought it was horrible and unconstitutional and unfairly targeting their states out of outdated prejudices, despite the fact that they then voted for it. All of them. It's the same as in the ACA case: the fact that Congress enacted all these "ornaments" into law doesn't matter, even though they're operationally independent of the central planks of the legislation, because Antonin Scalia doesn't think they would've passed without those planks.

But guess what, Scalia? You're not in Congress. You're not a legislator; you weren't the floor manager for the ACA or for the 2006 VRA. You don't know how Congress works, and as a Supreme Court judge, you're not supposed to care. When Congress passes stuff, by definition the United States Congress as an institution approves of that stuff. And while we might not want to pay much attention to legislative records on general principles, if we're going to care at all we sure as hell need to care about the actual record, not the hypothetical one Antonin Scalia makes up in his head. This is legislating from the bench, not just in the sense of second-guessing the legislature's policy choices on the merits but in the sense of second-guessing that the legislature has made the policy choices it has in fact made. Scalia has really gone off the deep end, and it would be kind of sad were he not in a position to do so much damage to the world.

(Oh, and for what it's worth, the arguments against the constitutionality of the VRA are insane, and seem to me to be window-dressing around the fact that conservatives don't like it when the federal government uses its powers to attack racism. And also the fact that overturning the VRA might give the Republicans a partisan advantage. These guys disgust me, and if Kennedy sides with them, he loses an awful lot of points. Points he doesn't have to lose.)

The Not Really Obligatory Character Analysis of the Court

Okay, so the last two posts canvassed the merits of the recent health care ruling and the longer-term impact of that ruling on jurisprudence. This one is devoted to speculative discussion of what's going on with the nine individual human beings sitting on the Court right now. Well, a few of them anyway: most of them offer pretty uninteresting analysis right now, going along as they always have. Who are the exceptions? Mostly John Roberts and Antonin Scalia, and the dispute between the two of them, though Kennedy appears to be up to something himself.

The Obligatory Reaction Piece

So, the first thing to say about the Supreme Court's ruling this morning in the hideously-named National Federation of Independent Business v. Sebelius, concerning the constitutionality of various provisions of the Patient Protection and Affordable Care Act, better known as "ObamaCare," is that it was basically a huge win. The law got upheld, to most people's surprise (the prediction markets at inTrade were giving a 75% chance of the mandate's being struck down as of yesterday), it was given bipartisan cover by Chief Justice John Roberts, it was a win. But I've got many more things to say than that.

The details of what happened are as follows. The Court faced four questions, of which the most important was the constitutional validity of the minimum coverage provision of the law, and on that question the Court held, 5-4, for the government. Roberts' majority opinion said that, for these purposes anyway, the so-called individual mandate was a valid exercise of Congress' taxing power, and the four liberals agreed with him; however, Roberts also opined that this provision was not a valid exercise of the Commerce Clause power, even extended through the Necessary and Proper Clause, in doing so agreeing with the Court's four dissenting conservatives. Since the mandate was not struck down, all the questions regarding severability were moot. Meanwhile, despite upholding the mandate under the taxing power, the Court rejected the argument (which neither party was making) that it was a tax for the purposes of the Anti-Injunction Act, which requires anyone suing to challenge a tax to wait until that tax is collected before doing so. Finally, the Court more or less upheld the expansion of Medicaid contained in the Act, though it said that states must be given the opportunity to accept or deny only the additional funding that would accompany said expansion. Congress could not, in other words, force states to accept the expansion or lose all their existing Medicaid funds.

The Court's four liberals, Justice Ruth Bader Ginsburg writing for herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, agreed with Roberts that the mandate was valid, and that it was valid under the taxing power, but not really about much else. (Well, except for the whole Anti-Injunction Act thing, which was pretty much unanimous.) They would've upheld it as a mandate directly, under the Commerce Clause. Two of them, Ginsburg and Sotomayor, also took issue with Roberts' limitation of the Medicaid expansion, though Breyer and Kagan sided with the Chief on that issue.

The dissenters, namely Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas, would have thrown out the entire law. Basically, they rejected all of the arguments in favor of upholding the mandate, and also found the Medicaid expansion unconstitutional, and from there they simply found that those provisions were not severable from the rest of the law, or even that some sort of line could be drawn around those provisions and those directly related to them.

So, what do I think? Well, as usual, I'm with Ruth Bader Ginsburg, who is almost certainly the Justice on the Court right now whom I trust the most to reach the correct result in any given case. At the very least, in my opinion, the minimum coverage provision is necessary and proper to bringing into execution a completely valid regulation of interstate commerce, namely the guaranteed-issue and community-rating provisions preventing insurance companies from denying coverage to or giving discriminatory prices to those with pre-existing conditions, into effect. I'm not sure whether it's valid solely and directly under the Commerce Clause, but to my mind the Necessary and Proper case is a slam dunk.

As for the Medicaid expansion, as Matt Yglesias says, the logic used by Roberts, Breyer, and Kagan to limit the Medicaid expansion (which, by the way, wtf Breyer and Kagan?) is a pure invention of the moment with no foundation whatsoever in the text of the Constitution. Medicaid is a valid exercise of Congress' spending power. It has long been held that Congress may say to the states, here's some money, and here are some conditions regarding how you have to use this money, and if you don't follow those conditions then we'll take our money back. That's one of the foundations of state-federal cooperation, and has been for basically ever. The idea that, because states rely rather tremendously on Medicaid funding, Congress mayn't change the conditions attached to Medicaid is just absurd. Yeah, states rely on Medicaid funding. But surely Congress could just take that funding away, despite that reliance? And if it could do that, why can't it threaten to do that if the states don't go along with the ways in which Congress wants them to spend its money? This is not a case like South Dakota v. Dole, where Congress threatened to take away some of the highway money states relied upon if they didn't enact various policy changes, specifically a drinking age of at least 21, that Congress wanted. Oh, and the Court upheld the National Minimum Drinking Age act in that case. This should be easier still, since it's all about Congress telling the states how to spend the very dollars Congress is giving them. The idea here seems to just be that, well, this would put the states in a tough position, and hey, we like states, so it's not cool. But that's just something the Court is reading into the Spending Clause from scratch.

Finally (because I don't see much point discussing the Anti-Injunction issue), we reach the question of severability. It wouldn't be relevant if I were writing an opinion in this case, since I wouldn't strike down any of the law, but since the dissent discussed it I'll address it as well. To do so, I must (unfortunately) quote a bit of Scalia:

Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

Now, my understanding of the "would Congress have enacted them independently?" test is quite different from the one Scalia uses here. Suppose, for instance, you take seriously the notion that the various regulations of private insurers would, in the absence of an individual mandate, create a death spiral. In that case, it's reasonable to think that Congress wouldn't have enacted the regulations if it knew the mandate wouldn't be there; there wouldn't be any point. Scalia seems, on the other hand, to be not considering Congress as a kind of abstract political institution but rather to be psychoanalyzing the details of the political compromises, log-rolling, etc. that went into passing the bill. He doesn't think, in other words, that it's very likely there would've been the votes for the law if you took out the bits he thinks are themselves unconstitutional. Or, as Yglesias puts it in his post on this same subject, the legitimate parts of the Act are deemed invalid because Antonin Scalia thinks they were "part of some kind of unseemly horse-trading."

Like I said, I would analyze this in terms of whether Congress, the institution, presumed to be basically sort of rational, would have had any plausible reason to desire to pass the law if it knew that a certain part of it was unconstitutional and would be struck down. After all, the necessary majority of both Houses did vote to enact every single provision of this law, and the President signed every single provision of this law; in my opinion, we have to take that at its word, and it's impossible to meaningfully second-guess the actions of those 270 actual human beings. And in this case, the invalidity of the minimum coverage provision would have no bearing on the reasons for which Congress might've wanted to enact, say, funding for community health centers. They're just separate policy questions.

Now, if it were well-known in a certain case that there was a specific deal made, where one faction agreed to vote for this provision in exchange for another faction voting for that provision, things might be a little different. But that's not what's going on here. There might've been a few such deals around the mandate, but not extending through the entire law. Rather, the law had a considerable omnibus aspect, with its bulk consisting of a whole bunch of little reforms to the nation's health care system that lots of people thought were a good idea. In fact, from my memory of the political debate around the Act's original passage, Republicans kept saying that, well, you know, 80% of the stuff in this law is stuff we all agree about, it's just the 20% that's causing controversy. And that 80% was the community health centers, and the dentist deregulation, and the requirement that restaurants display nutritional information. The 20% was the mandate, and perhaps also the details of the subsidies and the regulations of private insurance companies. So an actual examination of the details of the political process suggests that, far from provisions that would only have been acceptable given the mandate, all this stuff was itself the sweetener, that people might not have been able to swallow the mandate and the complex of regulations around it without.

So, basically, Scalia's wrong. Very, very, wrong. But what else is new?

EDIT: Since I haven't actually read any of the rulings, except Justice Thomas' two-page dissent, I missed this gem from Roberts regarding the Medicaid expansion:

"Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system....Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability."

I hate this kind of analysis. I think right-wingers love it. I think similar kinds of thinking are behind the so-called "non-delegation doctrine," this idea completely unsupported in constitutional text that "a delegated power may not be delegated," and so Congress can't tell the President to determine the appropriate law on some topic. And I think it's a load of bunk. The mechanisms of political accountability are spelled out in the text of the Constitution. Everyone has to be elected. It's up to the people to keep proper watch on the goings-on of their government, and it is emphatically not the province of the judiciary to police the government to make sure things don't get too complicated for us little folk to understand.

The argument in this case is that, since the federal government isn't enforcing the policies Congress has passed (states are), and since the states didn't pass the policies they're enforcing (Congress did), voters won't know whom to blame if they don't like the results. In particular, since acceptance or denial of funding is not a serious choice if Congress can take away all Medicaid funding in the case of a denial, the state government never really makes a clear choice. If the choice is serious, if denial is not met with a "gun to the head" but rather just with a continuation of the status quo, then people can fairly hold state officials politically accountable. That's the theory, anyway.

But, first of all, that's completely irrelevant, and second of all, it's wrong on the facts. I'm pretty sure that people know Medicaid is a national program. The fact that state governments do the enforcing doesn't leave people confused about what's really going on. If people don't like the Medicaid expansion in the PPACA, they'll punish Congress, and maybe also the President. And, oh look, a whole bunch of Democratic Congressmen who voted for the PPACA lost their seats in the first Congressional elections thereafter. Clearly, this state-coercing trickery made it just impossible for anyone to figure out whom they ought to blame. And that sort of gets at the point, that it's ridiculous for a Court to try and tell when an arrangement like this will make it hard for voters to know what's going on. Especially since it's not in the Constitution whatsoever, it's just some notion of fair play that Justices often like to enforce.

The truth is that Congress has the power to give money to the states, under its spending power. Obviously, it also has the power not to give that money to the states. Therefore it has the power to give money to the states if and only if the states promise to use that money in ways Congress likes. In fact, I probably think Congress has the right to give money to the states if and only if any condition regarding the state's policies are met, though that's not even important for this case. Given this ability to give money with strings attached, the idea that Congress can't change the strings attached seems patently absurd. One good way to tell that Roberts' analysis is flawed is by noticing the phrase "...States' existing Medicaid funds..." in this part of his opinion. There are no existing Medicaid funds, except in that Congress keeps appropriating funds to be given to the states as part of Medicaid.

So part of what we've got going on is inaction bias*, the assumption that any decision to not act isn't really a decision at all. But the past should be irrelevant; spending in the present should either be valid or be invalid, based on what that spending will do in the present. Congress is constantly deciding to provide the states a certain amount of Medicaid money with certain strings attached; it may at any point decide to provide a slightly different amount of Medicaid money with slightly different strings attached. So long as the new strings would be themselves constitutional if they were applied from scratch, the change in the strings should be constitutional as well.

SECOND EDIT: One thing I should add to this analysis is that there was one part of Chief Justice Roberts' opinion that I liked a whole lot. I once got into an argument with Randy Barnett, the libertarian constitutional scholar who sort of led the charge against the PPACA, about whether the fact that Congress, in writing the bill, went rather far out of its way not to call the individual mandate a tax should be controlling in determining whether or not it is a tax and therefore valid under the taxing power. Barnett said it was controlling, among other things on similar (though arguably even worse) "accountability" grounds as those I discussed above. Congress called it not a tax in order to avoid a political liability, he said; now they have to pay the price for that. Otherwise you could go around not calling things taxes that really were, and having it be okay, and then everything would just be horrible. I'm paraphrasing slightly. I, of course, said that if it acts in the real world like a tax, the Constitution shouldn't care what label has been stuck on it.

And that's where John Roberts came down. His opinion includes a nice little segment about how the way something's described in legislation just doesn't control whether or not it's within the ambit of the taxing power. That's a nice bit of anti-formalism, of looking beyond the words to see what's really going on, and I'm very pleased to see it

*Oh, and of course it's worth mentioning that the entire conservative argument against the mandate's validity as a Commerce Clause power sort of thing, which Roberts endorsed, was based on a giant pile of inaction bias. The idea that there's some great and terrible distinction between "regulating activity" and "regulating inactivity" is silly enough; the idea that such a distinction is recognized in the Constitution, which makes no reference to that concept anywhere, is even more ridiculous.

Okay, At This Point I Really, Seriously Have No Further Use for Justice Scalia

Supreme Court Justice Antonin Scalia has always had an interesting reputation. Yes, he's quite extreme on most issues, his reputation says, but he's not juts a partisan hack. He's a brilliant legal thinker who has a theory of constitutional interpretation in which he believes strongly. Sure, that interpretive theory leads him to policy results most of the time, but not always, and when it doesn't he owns up to it and follows his theory rather than his political ideology, and his theory helps him see certain flaws with traditional jurisprudence that no one else has any interest in pointing out. He may be a conservative, in other words, but at least he's got intellectual consistency.


Well, I say he's always had that reputation, but it's not really true. He used to have that reputation, but of late he's been fast using it up. When Scalia first got to the Court, that reputation was more or less true. He joined William Brennan's opinion in Texas v. Johnson (1989), holding flag-burning to be protected speech under the First Amendment, and he dissented alone from Mistretta v. United States (1989), which upheld the U.S. Sentencing Commission, and Morrison v. Olson (1988), which upheld the Independent Council Act. One can even find a few examples of this supposed intellectual integrity of Scalia's until pretty recently. I don't honestly think his concurrence in Gonzalez v. Raich (2005), upholding under the Commerce Clause federal regulation of privately-grown and privately-consumed marijuana, counts, since one can explain one apostasy from his policy preferences (limiting Congress's authority to regulate the economy) with another preference (anti-marijuana). His majority opinion in Kyllo v. United States (2001) definitely counts, though, as is held unconstitutional warrantless thermal imaging of a home under the Fourth Amendment--in a case where the defendant was growing pot! And--shockingly!--he dissented, along with Justice Stevens, from Hamdi v. Rumsfeld, which interpreted the Authorization for the Use of Military Force as a suspension of habeas corpus, writing that such a drastic measure had to be explicitly authorized in so many words by Congress. I say this is shocking because not giving rights to suspected terrorists is just about his favorite thing, and some of his dissents from cases which did give rights to suspected terrorists are entertainingly apoplectic. So this reputation of Scalia's isn't just made up, or anything; there are plenty of examples of his exhibiting exactly this kind of intellectual integrity.

But, well, no longer. It's been building for a while, actually; in my opinion, Chief Justice John Roberts has been a bad influence on Scalia, seducing him to the Dark Side of pure partisan hackery. I'm not going to provide a list of the cases that have made me gradually lose essentially all respect for Scalia. Instead I'm just going to give a few choice excerpts from his dissent in Arizona v. United States, a decision announced yesterday that struck down almost all contested provisions of Arizona's hateful immigration law. The most shocking part comes quite near the beginning:

"Notwithstanding "[t]he myth of an era of unrestricted immigration" in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks."

Yep. He actually said that. Now, what I want to know about this passage is, given that he already had three examples of such "classes of aliens," why bother mentioning the part about freed blacks? Going from three examples to four doesn't really strengthen his claim much, and appearing to cite as favorable precedent an aspect of the slavery regime in the antebellum South seems like needlessly inviting controversy. Was this just offensiveness for offensiveness' sake? It gets better, though, as a few pages later we get this gem:

"That is why there was no need to set forth immigration as one of the enumerated powers of Congress, although an acknowledgement of that power (as well as of the States' similar power, subject to federal abridgment) was contained in Art. 1, §9, which provided that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight..."

Um... what? He does know that this clause concerned the slave trade, right? That it was part of the original compromise over slavery, that Congress was prohibited from banning the slave trade for 20 years after ratification? (Which, of course, it did immediately upon gaining that power.) This... really isn't about immigration, dude. It's about slavery. See that word "importation"? That's a word you use for people conceived of as property.

This passage is ironic because it quotes a case that, among other Justices, Scalia himself helped overturn:

"It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as the protection of the dignity of the national flag, see Halter v. Nebraska, 205 U.S. 34 (1907), or protection of the Federal Government's ability to recruit soldiers, Gilbert v. Minnesota, 254 U.S. 325 (1920)."

Halter v. Nebraska, in upholding laws criminalizing the desecration of the flag, was of course overturned by Texas v. Johnson, in which Scalia provided the decisive fifth vote. And Gilbert v. Minnesota appears to have at least partially involved First Amendment claims of free speech and free exercise of religion, and similar cases upholding the federal government's power to suppress interference with recruitment are these days viewed rather skeptically.

Oh, and of course, here's this, where Scalia wantonly introduces a discussion of the Obama Administration's recent executive order regarding immigration:

"It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate "scarce enforcement resources"—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million individuals under the age of 30. If an individual unlawfully present in the United States [meets the criteria for exemption under this new policy] then U.S. immigration officials have been directed to "defe[r] action" against such individuals "for a period of two years, subject to renewal." The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is "the right thing to do" in light of Congress's failure to pass the Administration's proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind."

Of course, as he mentions, none of this had happened when this case was brought before the Court. This was not part of the case. This was what one might call a gratuitous potshot at President Obama. Legally speaking, it strikes me that the question of whether the general federal power over immigration preempts state action in the same area is completely distinct from whether the federal government has some particular program of broad-scale prosecutorial discretion in its immigration policy, and that therefore these remarks would be irrelevant even if the case had arisen after the executive order.

Now, Scalia's main actual legal argument revolves around the concept of "sovereignty." The very first sentence of his opinion is:

"The United States is an indivisible 'Union of sovereign states.'"

He's citing a 1938 case when he says that, by the way. Shortly thereafter:

"As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty."

He then cites several centuries-old treatises on the law of nations to support this last sentence.

Later on, in arguing that an implicit preemption from federal activity in the same "field" of policy is insufficient to restrict a state's power of exclusion:

"We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination the States' other inherent sovereign power, immunity from suit, elimination of the States' sovereign power to exclude requires that "Congress ... unequivocally expres[s] its intent to abrogate," Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (internal quotation marks and citation omitted)."

Two things: it's interesting that there's only one other "inherent sovereign power" that the States retain, and that other power, immunity from suit, is explicitly and only protected by the Eleventh Amendment, which is very explicit in so protecting that power. Indeed, prior to the Eleventh Amendment the Court had held that the States lacked this power; that Amendment was passed to overturn that case, Chisholm v. Georgia.

Very shortly thereafter, in a strange passage about how the government is just trying to please foreign powers, this gem:

"Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers."

Emphasis mine. Seriously. Yes, people have loved talking about "state sovereignty" for a long time, way back to before the big ol' war that should've buried that phrase along with the millions of its dead. But state independence? I'm pretty sure that one was buried by the Civil War, though I also don't think I can recall anyone talking about state independence between the Founding and the secession crisis.

So now we're left with this, at the end of the opinion, summarizing Scalia's radical and, to my knowledge, unprecedented (not just in Court opinions!) view of state sovereignty/independence:

"But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?

"A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court's holding? Today's judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with "the jealousy of the states with regard to their sovereignty." 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable provisions that never left Independence Hall. Now imagine a provision—perhaps inserted right after Art. 1, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress "To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate." The delegates to the Grand Convention would have rushed to the exits.

"As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that give rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona's estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

"Arizona has moved to protect its sovereignty—not in contradiction with federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent."

Well, yeah. We should stop referring to it as a sovereign state, 'cause the states are not in any meaningful way sovereign.

So basically, this opinion is crafted around a nonsensical legal premise, Scalia's wacky notion that the states are in some sense independent sovereign nations. To that it adds multiple completely random broadsides against the Obama Administration, and multiple distinct invocations of the legal apparatus of slavery as favorable precedents. This is basically, as I heard someone refer to it, full-on wingnut mode. As Adam Winkler puts it, quoted in this TalkingPointsMemo article,"Scalia has finally jumped the shark." I've said this a few other times over the past few years (actually, I think some of those were about his performance in the oral arguments of, well, this case), but this time will be the last time I say it: I've lost all respect for this guy. Whatever he may once have been, whatever virtues he may once have had, whatever principles his originalism may have once given him, it's all gone now. He's a partisan hack, and his flare for vitriol and scathing dissents is now being used for nothing but that hackery. It's pointless to think of Scalia as anything other than an angry old man who is going to rule on what I view as the wrong side of essentially every contested case, and who will give increasingly flimsy and sham-like arguments for doing so. I hereby give up on Antonin Scalia.

It's interesting to note, though, that it's starting to feel that he's not even really trying anymore. Not trying, that is, to couch his flaming rage in plausible-sounding legal arguments. I'm almost tempted to wonder whether he's started feeling like, whatever he may have accomplished and whatever he may accomplish yet, he's just not going to make the Court's jurisprudence look the way he wants it. Maybe he's becoming disappointed in Roberts' and Kennedy's penchant for caution and craftiness. Not, obviously, that they're not plenty conservative on a lot of issues, but Roberts' style is very distinct from Scalia's. In fact, he may be noticing that Roberts is supplanting him as the leader of the conservative side, and he may be getting kind of pissed off about it. Roberts joined the majority in this case, after all, and it's speculated he might abandon Scalia again in Thursday's health care ruling. In other words, I'm starting to wonder whether he's losing interest in the Court. It's probably wishful thinking, and given how strategic Justices tend to be in their retirements (and even, according to Steve Calabresi, in their dying!) it's probably a really long shot to think Scalia might retire during Obama's second term. But I'm starting to think the odds of replacing Scalia in the next four years are distinctly non-trivial. Here's hoping.

Originalism and the Dictionary Flip-Flop

Antonin Scalia believes the Constitution's language must be interpreted in keeping with the original public meaning of the text. That is to say, he believes that the Constitution is what was ratified, as understood by the ratifiers, and nothing else. Okay, fine: I can see his argument, actually. But looking at a couple of examples of his application of that theory reveals what's so wrong about the way he puts it into practice. In DC v. Heller, the recent case establishing for the first time ever an individual constitutional right to gun ownership, Scalia has to defend against what is, I admit, one of the relatively more frivolous challenges to originalism. We on the left like to say that, if the Constitution means today what it meant in 1789 or 1791 or whenever a given amendment was ratified, why shouldn't the 2nd Amendment only protect 1791-era weaponry? After all, the idea that this was a right to carry handguns or automatic weapons or whatever was not the original public meaning of the amendment, was it? Well, Scalia says, you're doing it wrong. The proper method is to look in 1790-era dictionaries under the word "arms," which give you a definition about implements used for violence and self-defense.

But then we have a problem. Because, you see, Scalia also thinks that the phrase "cruel and unusual punishment" only means those punishments that 1791 Americans thought were cruel and unusual. He does not direct us to a dictionary for the meaning of the words "cruel," "unusual," and "punishment," and then try to understand the meaning of the phrase through that lens. No, he just wants to run down a litany: was hanging okay? Yep. Were the stocks okay? Yep. Was flogging okay? Well, here he wavers, admitting that while the answer is yes, he himself, along with other "faint-hearted" originalists, would probably "compromise" and agree that public flogging is off limits. But see the problem: he's moving back and forth between the dictionary method and the application method, between looking at what the words meant at the time and looking at what consequences they had at the time. And it sure looks like he's picking and choosing his method, as well as when to get "faint-hearted," just based on his own personal policy preferences. He likes guns, so of course it's absurd to protect only 1791-era guns. But he also likes punishments, so he only wants to prohibit punishments that were considered cruel and unusual in 1791. Except for some punishments, which he doesn't like, so he'll wimp out of actually applying his doctrine there. His opinion changes, his method changes. I just don't see how to interpret this other than by saying, this theory is a load of bull, Nino Scalia is just voting for his own policy preferences. He is, in other words, legislating from the bench, the exact thing that he loves to chide liberals for doing.

The Unanimous Constitutional Waiver

A thought has just occurred to me about Justice Scalia's argument from tradition, which I critiqued in this post. From time to time I've had the thought that there is an automatic mechanism for waiving any provision of the Constitution, which requires actually no formal proceedings. The way it works is, everyone in the entire nation decides not to challenge violations of that provision in court (or at least everyone who might have standing to mount the challenge does). Then the unconstitutional practice goes unchallenged and unreviewed by the judiciary, and is allowed to continue. In other words, the people of the United States may at any time amend the Constitution by unanimous vote of non-litigation. You can make an argument that the prayer-at-school-graduations tradition Scalia waxes so nostalgic over had been the subject of a long-time sanction-by-lack-of-challenge, and therefore was perfectly constitutional.

But here's the thing about this unanimous constitutional waiver: it only holds so long as it really is unanimous. Saying, "yesterday everyone in the country was willing to give this unconstitutional practice a pass, so today your complaint against it is deemed invalid" is putting several carts and horses in awkward positions relative to one another. Yes, something which is technically unconstitutional can become kind of de facto constitutional if no one chooses to challenge it and give the courts an opportunity to declare it invalid. But, being de facto, this kind of informal constitutionality must perforce vanish as soon as the fact it depends on, no one's having challenged in a court of law, is no longer a fact! So yes, maybe long-held traditions are informally constitutional even if they seem to contradict what the Constitution says. But this only applies until someone decides to complain about it; after then, you can't rely on the historical tradition, you have to actually consider the merits of the individual case.

While We're on the Subject of Scalia...

Later, from the same dissent:

"I would deny that the dissenter's interest in avoiding even the false appearance of participation constitutionally trumps the government's interest in fostering respect for religion generally."

First of all, as an atheist, let me just say, Justice Scalia, that I don't think you quite get how distinctly unpleasant it is to feel this "respect for religion" raining down on you, especially when it comes from the state. Respect for religion comes damn near equating disrespect for non-religion, and condemning an individual's theological beliefs is something, I thought, that the state wasn't supposed to do.

But more to the point, the government's interest in fostering respect for religion? Isn't the entire point that the government doesn't have that interest? It strikes me that between the commands, "Congress shall make no law respecting an establishment of religion" and "Congress shall make no law...prohibiting the free exercise thereof," you have overall a framework in which, if nothing else, the government is not allowed to state an interest in either promoting or suppressing religion. It may sometimes aid religions for secular reasons, i.e. the tax-exempt status for churches in their capacity as charities, and it may sometimes hinder religions for secular reasons, i.e. the refusal to allow the Mormons to conduct polygamous marriages. But it's not allowed to do something because it likes a religion, or because it dislikes a religion, or because it likes or dislikes religions in general. Scalia has this thing where he insists that it's fine for the government to favor religion over nonreligion, as long as it doesn't favor a particular religion. I wonder whether he would be okay with laws that seek to suppress religion generally, as long as they want to hinder all religions equally.

Tradition and Originalism

I'm currently reading the opening passages of a dissent by Mr. Injustice Scalia from a case holding that nondenominational prayer at the beginning of a public high school's graduation ceremony was unconstitutional. Here are the passages that have got me thinking:

"In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court--with nary a mention that it is doing so--lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. ... Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people."

Notice something about this rhetoric? Not once does he mention the law. He does not even state that the Court is overturning legal precedents or traditions, merely that its current holding will destroy a cultural tradition. As best I can tell, the force of his legal argument, to the extent that he is making one in this passage, is that, well, we as a nation have always done X, therefore X must be constitutional. But there's a problem with that, isn't there? Isn't it possible that we were doing something for a very long time that was genuinely unconstitutional but which nobody noticed was unconstitutional? My professor in this course is Steve Calabresi, one of the founders of the Federalist Society, a former clerk of Scalia's, and a professed originalist. But he believes that originalism is not about insisting that any American tradition must be valid. Instead, Professor Calabresi argues, an originalist should admit that people can misinterpret their own rules. For instance, he says, his analysis of the historical record suggests that the Fourteenth Amendment's Equal Protection Clause was designed to prevent the creation of a caste system. That was the original intent. Now, very few of the legislators enacting that Amendment thought that the various differential treatments of women that were traditional in their society constituted a caste system. They were wrong about that. According to Professor Calabresi's philosophy of originalism, this means that the Equal Protection Clause does protect sex discrimination, even though its drafters most certainly thought it did not, because they misunderstood the fundamental principle they were enacting into law. (Incidentally, Justice Breyer's most recent book also argues for examining original intent at the level of underlying principles.) Applying this same idea to the case of invocations at public-school graduation, Scalia is perfectly within his rights to argue that the Court is overturning precedent, although I'm not sure there's any specific Supreme Court precedent for him to cite. But it's not enough to say that something is traditional to show that it is Constitutional. It's possible that the centuries of Americans holding invocations at their high school graduations were in fact violating the true, original meaning of the Establishment Clause all along, and they just didn't realize it.