Oh My God The Obergefell Opinion Is Bad

Last summer, the Supreme Court decided the hideously-named Obergefell v. Hodges, which held that the Constitution protects what we on the left these days call marriage equality, i.e. that state laws defining marriage as between a man and a woman are unconstitutional. And... what with one thing and another I just never really got around to reading the case. Not the majority opinion, not the dissents. I heard some things about it. I heard that Kennedy did a lot of pronouncing about how wonderful marriage is, including a final paragraph the reading of which has apparently become a fixture at weddings. I heard that, as usual in these sorts of cases, his doctrinal analysis was a mess, and (as in Lawrence v. Texas) he was kind of unclear about whether this was an equal protection case or a "substantive due process" a.k.a. fundamental rights case. I heard that Chief Justice Roberts's opinion was far more fire-breathing culture warrior than I had been expecting after his curious dissent in U.S. v. Windsor. But I didn't read it for myself. Between those few snippets and my knowledge of Kennedy's previous gay rights jurisprudence I figured I had a decent kind of idea what the opinion said, and while it left a lot to be desired (aside from, y'know, deciding the case correctly), it had some interesting, maybe even promising stuff going on.

Well I just actually read the damn thing, and oh my god it sucks. It's waaaaaaaaaay worse than I had been imagining. First of all, about half the opinion isn't legal analysis at all, it's Anthony Kennedy Tells The Story of Marriage And How Wonderful It Is. Which first of all is just weird and kinda gross to read in the U.S. Reports. It's like Scalia's dissent in U.S. v. Virginia, the VMI case, where he includes the full text of the Virginia Military Institute's Code of a Gentleman at the end. This is just not something that belongs in a judicial opinion, not like this anyway. (As I'll note later, there could be a place for a little bit of this sort of thing in a better-crafted opinion, but Kennedy massively overdoses us on it.) Second, while there's some nice stuff in what he says, particularly the bits about how the changes that have been made to the institution of marriage over the centuries as women have achieved greater and greater social progress have strengthened and improved marriage, a lot of it is kind of gross on its own terms. He goes on and on about how wonderful marriage is, how it's a bond unlike any other, so ennobling, it's at the heart of human civilization, blah blah blah, and then he's like, hey isn't it great how these gay people love marriage as much as I do! They want in to our patriarchal (if slightly less than it used to be) institution, hooray!!! He literally goes so far as to say that "Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order." WTF, bro.

Thoughts on Merrick Garland

First of all, I must confess error: I really, really thought it was going to be Sri Srinivasan. It wasn't. Whoops. (I did however predict that Obama would announce his choice today, right after Trump has seized control of the Republican primary, thus helping with the "make Republicans look like damned fools" strategy.)

As far as the nomination itself, I think Garland is probably the unique solution to the question of "who would this President and this Senate pick as a nominee?" Now, of course, we know that this Senate has no interest in solving that question, and I actually think that's why it's important that Obama chose Garland. Senate Republicans oppose this nomination on spurious grounds of principle, and I think Obama has a solemn responsibility to contest that principle with all his might, lest it become settled precedent. That doesn't just mean nominating someone. It means nominating the very person he would choose if his goal was to reach a reasonable compromise with this Senate. After all, if this President has the right to participate in this process, surely so does this Senate. Nominating some liberal firebrand would feel more like Obama's responding in kind to the Republicans, saying, hey, pretty soon you guys won't be in office either, I'd rather wait until then.

Of course, that depends on Garland's status as someone acceptable to both liberals and conservatives. I've gone back and forth a bit on whether I think he should be acceptable from our side of things; basically what gives me pause is the possibility that he would be more conservative than Scalia on certain criminal justice issues. That's the area where Garland is said to be at his most conservative, and many of Scalia's idiosyncratically liberal stances were in that area. It would rub me a little the wrong way for the Court to get worse on any major set of issues by dint of replacing Antonin Scalia. But right now I'm feeling pro-Garland. Partly that's just because Obama nominated him, and I trust Obama's judgment. Partly it's because, while Scalia did have a few liberal views about criminal procedure, mostly he was awful on criminal justice stuff.

But partly it's just because Obama has successfully appealed to the small-d democrat in me. It's not fun when the other side wins, but sometimes they do, and when they do, it's their right to participate in governance. Garland, as the most reasonable compromise between President and Senate, is the correct answer to the question "who should replace Scalia?" in terms of how our constitutional system is supposed to function. And while I applaud Obama for his willingness to reject lopsided compromises that would shift public policy in a conservative direction when it comes to ordinary matters of legislation, I do think it's kind of different here. There's a real argument that it would be a dereliction of duty to just leave the seat unfilled for a year because Obama hoped that his side would be in a more commanding position after the election. And, of course, Garland would shift the Court massively to the left compared with Scalia, even if he might not do so on every single issue. We also might get another opportunity to shift the Court leftward if Justice Kennedy retires sometime soon; I've heard rumors to the effect that he's maybe not doing so well. Garland would probably be a really good Supreme Court Justice, even if I might not agree with him about everything, and frankly, I'm not entitled to a nominee I agree with about everything right now. So, count me in.

That being said, by far the most important thing about this whole situation is that he's not going to end up on the Court, not as a result of this nomination in any event. (Watching him tear up at his press conference earlier I couldn't help but feel kind of sorry about that, even though I'll probably like the Justice who ends up in the seat in his stead better.) I bet the Republicans are really regretting that they decided to take this pseudoprincipled stand right now, because as a matter of pure strategy, the obvious play is to fold like a cheap suit and confirm Merrick Garland. Their party is going to nominate one Donald J. Trump. He's more than likely going to lose to one Hillary Rodham Clinton. It's not even clear that they'll be rooting against that result. And when he loses to Hillary, she'll likely wind up with a Democratic Senate. At the very least it'll be a less Republican Senate than we've got now. If this vacancy is still open then, they'll be longing for the days of Merrick Garland. But having staked out this supposed constitutional principle, they can't follow the strategic logic without making it painfully obvious that they were lying earlier.

And their idiocy isn't just a matter of strategy. They're saying that they want "the American people" to have a say in the process, but in cutting the people who elected Barack Obama out of the process, they're also cutting the people who elected them out of the process. Honestly I feel like they're betraying their constituents more than anyone else.

I also think it's very likely that if, as I think is likely, we get President Hillary and a Democratic Senate next year, the Senate Democrats will both be entirely within their rights to get rid of the filibuster for Supreme Court nominees (thus ensuring that no Republicans have an ounce of influence over Hillary's nomination), and will be kind of likely to do so. Those same Senate Republicans will have spent a year instituting a blockade on spurious constitutional grounds purporting to defend the right of the people; they'll have forfeited any right to block the President and Senate that the people chose from making their preferred choice.

Oh, and one final point: people are talking about what will happen during the lame duck session. Suppose, for instance, that the Democrats win big, taking the Senate and holding the Presidency. Well at that point, Republicans should leap to confirm Garland, right? Yes, but Obama shouldn't let them. He's perfectly within his rights to withdraw the nomination, and if the vacancy is still open on November 9th I think it would be entirely proper of him to do so. Indeed, even if he left the Republicans with a little sliver of time to vote Garland through before withdrawing the nomination, he would be perfectly within his rights to decline to sign the commission, thus defeating the appointment. His rationale would be as follows: "look, I wanted to work with you to fill this seat, but you insisted on waiting until after the election, and you lost. You've forfeited your right to be a part of this process; I'm done with you." Particularly if Hillary's position in the polls looks commanding, he might even want to announce that a little in advance of the election. One way or another, it would be unacceptable to allow this Garland nomination to serve as a "heads we win, tails we don't lose very much" device for the Republicans.

I wish I could say that the next little while will be very interesting, but unfortunately it looks like the plan is for just nothing to happen for many months, and then eventually we'll see if it had an effect on the election. Ah well.

What Religious Liberty Really Looks Like

I just read Linda Greenhouse's piece about how the Court is shaping up in the wake of Justice Scalia's death, and something in it caught my eye. She mentions a case, Ben-Levi v. Brown, in which Justice Samuel Alito wrote a dissent from the denial of certiorari, a highly unusual move and one that Greenhouse couldn't recall ever seeing Justice Alito make. That case concerned a prisoner's religious liberty claim: he wanted to meet up with fellow Jewish inmates for religious study and/or worship (there was some dispute about which one, and it might matter), but the state wouldn't let him, because there were only two other Jewish inmates. You might think that shouldn't matter--and you would be right!--but it mattered because the state had apparently been informed by a rabbi that collective Jewish worship requires the presence of ten Jews in order to form a minyan. Hence, the state's rules allowed Jewish inmates to meet up for worship so long as there were at least ten of them. Alito, in his dissent from the denial of cert, thought this was ridiculous: what mattered isn't what some rabbi says, but what Mr. Ben-Levi himself believed.

And... he's right about that. I think Ben-Levi should have won that case, and easily so. I don't even necessarily even need to get the Free Exercise Clause involved here: this policy seems to me to violate the Establishment Clause pretty clearly. One prong of the traditional test under that Clause is that government policy must not create "entanglement" with religion. Basically the idea is that we really, really don't want the government dictating religious doctrines. This is the aspect of the Establishment Clause that's meant to protect religion from government as much as the reverse. And so I would say, the government has absolutely no business enforcing the minyan rules. Maybe they could simply not allow for group study/worship by Jewish prisoners, or maybe in appropriate cases they could limit the right to participate in those groups for individual prisoners whose poor behavior merits it. But if they're gonna allow the study at all, they absolutely cannot base their rules about when it is or is not permissible based on some view of what constitutes the correct interpretation of the religion in question; that's flatly impermissible.

And it's totally different from the other "religious liberty" case this term, and all the high-profile one of the past few years. Greenhouse speculates that Alito may have been "practicing" for the upcoming blockbuster case Zubik v. Burwell, where a bunch of religious groups and/or companies (because apparently that's a thing now) are complaining about the government's new rule saying that they don't have to provide insurance that covers contraception to their employees if they don't want to, they just have to let the government know that they object and then the government will provide that coverage separately. This, you see, still makes them culpable for whatever sins they think the contraception will perpetrate, according to their own religious convictions.

Spot the difference? It's simple: whereas Ben-Levi (and presumably his fellow Jewish inmates) just wants to practice his own religion his own way, these companies are fairly explicitly claiming a religious right to obstruct others' behavior that violates their own beliefs. I deny wholeheartedly that the latter has anything to do with "religious liberty." But to anyone who thinks this means I don't believe in religious liberty, that's wrong: I do support real religious liberty claims, like Ben-Levi's.

A Constitutional Right Deferred

As best I can tell, there were two conversations going on at the Supreme Court in today's oral arguments about gay marriage. One was on the actual merits of the issue: does the Constitution permit state marriage laws which exclude same-sex couples? And... there doesn't seem to be that much doubt that the Court thinks it does not allow this. I mean, somewhere between three and four members of the Court clearly think that it does allow this, but it doesn't seem like Anthony Kennedy, whose vote will definitely be crucial, had really any patience for the purported arguments in favor of the exclusionary state laws. He said something, for instance, about how the states' focus on the need to foster child-rearing was an interesting argument that, unfortunately, rested on totally untrue factual premises. It's really pretty clear that there aren't five votes right now to uphold these laws.

But there was also the other conversation: is the time right to declare these laws unconstitutional? This has been a popular theme in discussion about gay marriage, whether it's appropriate for the judiciary to step in and take the issue out of the hands of the democratic process. Or, alternately, at what point in the process of increasing social acceptance of homosexuality the courts should step in. A too-early ruling, the thought is, would fail to garner widespread acceptance and might spark a backlash. On this view, the courts should only declare anti-gay marriage laws unconstitutional once we can fairly say that the national conversation on the issue has concluded with a verdict in favor of marriage equality, such that all the courts are doing is enforcing that newly-forged national consensus on a few recalcitrant states.

What nonsense.

Every Sperm is Sacred, Declare Five Old Catholic Dudes In Robes

So apparently in the batch of orders issued the day after the final actual day of the Supreme Court's term, they basically indicated that yesterday's Hobby Lobby decision doesn't just apply to those methods of birth control which certain religious groups choose to describe as abortion-y. Apparently closely-held companies whose owners are Catholic, and particularly the kind of Catholic who thinks contraception and the recreational sex it makes possible are sinful, can get out of giving their employees health insurance that covers any kind of contraception. Basically, this:

Oh, and did I mention that the particular five Justices constituting this majority are all Catholics? Hmmm, interesting coincidence ya got there.

Oh Good

I've written before that it's important to me that Plessy v. Ferguson be considered, not just to be wrong, but always to have been wrong. To have been wrong the day it was decided. Well, I was encouraged to see the following line in a Supreme Court opinion I was just reading for class:

"...we think Plessy was wrong the day it was decided..."

Yes! The Supreme Court agrees with me!

Okay, technically that wasn't a majority opinion, it was a plurality opinion. Specifically it's the plurality in Planned Parenthood v. Casey, in the section discussing stare decisis. They (it's Souter, Kennedy, and O'Connor, though one suspects that Souter, perhaps the world's biggest fan of stare decisis, wrote that section) discuss why the overruling of Plessy in Brown v. Board of Education was consistent with the theory they used to justify upholding Roe v. Wade, despite certain reservations as to its soundness. The word at the beginning of the sentence, which I didn't include above, was "while," and what follows is a version of the way people justify Brown in light of the "changing times" or whatever: however plausible they may or may not have been in 1896, the purported factual underpinnings of Plessy (that segregation was not a "badge of inferiority," etc.) were absurd by 1954, and this therefore justified reversing the case.

Still, I doubt that Souter, Kennedy, and O'Connor would say something like that if it weren't pretty much the consensus on the Court. And my sense is that the Supreme Court usually thinks of itself, when overturning a precedent, as explicitly repudiating the older case, declaring that its reasoning was faulty from the beginning. That, I think, is as it should be; though of course there will be times when genuinely changed circumstances command a different result over time, this will be rare compared to the times when a new majority simply recognizes that the old majority got it wrong. This is likely to be especially true in the constitutional context, where, in theory, the underlying law isn't changing except by Amendment. Well, that depends on whose theory, I guess; Bruce Ackerman would disagree with me in no uncertain terms there, which is after all the point of my whole "do you think Plessy was wrong when decided?" inquisition.

I'll close with a return to the reasons why I find theories, like Ackerman's, that seem to suggest that Plessy was right for its time or whatever truly offensive rather than just wrong as an intellectual matter. If Plessy was not wrong the day it was decided, then it's not quite right to say that the Equal Protection Clause of the United States Constitution forbids racial apartheid, because obviously if it prohibits racial apartheid then Plessy could never, ever have been even a little bit right. And so I find it more than a little comforting to see the Court, even a plurality of the Court, stating explicitly that Plessy was always wrong. That simple statement commits the Court, the guardian and expositor of our Constitution, to the view that it's not just some contextual happenstance that we don't allow racial segregation. It's a matter of eternal and unchanging principle.

When Legal Realism Gets Internalized

Back in the old days, common law judges had what we would now consider a naively romantic view of their jobs. They did not see themselves as making the law, but rather as using the principles of Reason to "discover" the law. The law, they thought, had external validity. It just existed, out there, somewhere, sort of as natural law was thought to. Some of them might even have said that the common law they applied was natural law, though others might have denied it. Then, starting a little more than a century ago in this country, came the legal realists, who basically demolished this idea. They pointed out, irrefutably so, that an awful lot of judicial decision-making was influenced by the personal characteristics of individual jurists, the politics, the identities, the ideologies, etc. That was the empirical claim. It got kind of wrapped up in a philosophical claim about what law is. To a legal realist the idea of the law's existing independently of the legal system was absurd. Put perhaps a bit too concisely, the law was seen as nothing more than a prediction about the behavior of judges.

This story, of the rise of legal realism and the corresponding fall, and then demise, of the classical view of law, kept occurring to me earlier tonight as I read the line of Supreme Court cases about federal common law. Here the story is as follows: in Swift v. Tyson (1842), Justice Joseph Story declared that, in a case which only gets into federal court because the parties to it are from different states, i.e. where the legal issues are not ones of federal but rather of state law, the federal courts were not bound to follow state common law. Part of the motivation may have been the desire to create a uniform national commercial law through the federal common law. In any event, this was the rule for very nearly a century, until the Court overturned Swift in Erie Railroad Co. v. Tompkins (1938). And I just couldn't shake the feeling that the difference between the two cases is the difference between classicism and realism. Moreover, though I'm not at all sure which of the two cases I think is better, it seems to me that Erie and its progeny showcase the potential dangers of letting the legal system internalize even the most valid insights of the legal realists.

Why Abortion Has To Be Federalized

My constitutional law small-group class has spent the past couple of days discussing abortion and Roe v. Wade, and there are basically two battles here. There's the battle on the merits, namely, if we have to decide how to balance the various quite compelling interests at stake here, how should we go about doing so? But there's also the institutional-role battle: is this something the federal courts should be handling? Since the constitutional text is ambiguous on many of the key points of the on-the-merits debate, shouldn't states be left to form their own democratic judgments? There's a problem with this, however. This is not really a case where the existence of important federal-constitutional rights is in question. Rather, the ambiguity concerns whether there are countervailing interests at stake sufficient to justify what look on inspection like violations of those rights. The pro-life case, in other words, is not about denying the importance of a woman's control over her own body (well, unless the pro-life movement lets its id speak a little too openly), it's about asserting the overriding importance of protecting the life of the unborn child.

If you wish to deny the existence of unenumerated rights altogether this claim ceases to be true, but the Supreme Court has never once done so. Once you admit that these rights, which are properly viewed as Ninth Amendment rights but which in practice go by all sorts of doctrinal disguises, exist, I doubt there are very many in American society today who would accept the consequences of denying a right to bodily integrity generally beyond the abortion context. So it's clear that, at least under the underlying principles of modern individual-rights jurisprudence, anti-abortion laws must interact, somehow, with constitutional rights, and the question is the nature of that interaction, and how far a state may legitimately go toward restricting these rights in this context. Obviously the Supreme Court must set a nationally uniform minimum protection level. Conceivably it could also set a nationally uniform maximum, too, depending on how strong it finds the countervailing interests in certain contexts. In the gap between maximal and minimal protection, or simply between minimal and complete protection if no maximum is set, states are given full license to conduct their federalist experiments in democracy.

But once those national rights are implicated, it simply becomes infeasible to allow an individual state to adopt, say, the proposed Mississippi personhood amendment. Someone needs to say whether the valid state interests that could be argued to exist in preventing the abortion of a given pregnancy, or in a given pregnancy scenario, are sufficient to negate the protective force of those rights, and plainly that someone cannot be the states. This is not an area where the Constitution can be seen as silent, as leaving things simply in the hands of state legislatures; it is, rather, an area where important values under the federal Constitution are in conflict, and if the Fourteenth Amendment says anything* it is that the solution to such a conflict must be a federal one. The alternative is for the Court to allow states to restrict abortion, and with it the rights of pregnant woman and their doctors, in ways which the Court believes, in its own considered legal opinion, are not sufficiently justified by any legitimate state interests. Or, alternately, for the Court to allow states to permit abortion, in violation of the fetus' right to live, without sufficient justification, if its conclusion on the merits was that certain kinds of abortion had to be criminalized, perhaps on Equal Protection grounds. Either way the Court would be allowing states to violate important constitutional requirements, simply because the answer how best to balance the various interests at play in the abortion debate is not immediately obvious from the constitutional text. I can't imagine any reason to favor that approach, other than substantive disagreement with the Court's on-the-merits judgment and a resultant desire to minimize that judgment's reach.

In my next post I will address what I think the correct minimum protection would be, i.e. what I think is the most restrictive abortion statute that could possibly survive constitutional challenge under what I would consider proper jurisprudence.


*Well okay, technically if the Fourteenth Amendment says anything it's that the government mayn't discriminate against black people as such. But in terms of the broader political theory of the Constitution, its basic effect is to nationalize individual rights.

Confusion over Compulsion

In the first third of the twentieth century, the Supreme Court occasionally was inspired to state that certain acts of Congress which were undeniably exercises of its enumerated powers, like the power to tax and spend for the general welfare or the power to regulate interstate commerce, were nonetheless unconstitutional because they touched upon subject areas inappropriate for federal consideration. For instance, a tax on the interstate shipment of goods manufactured using child labor was unconstitutional, notwithstanding Congress' clear power to tax things that get shipped across state lines, because (apparently!)

regulating child labor was just something Congress wasn't supposed to do. Likewise, the Agricultural Adjustment Act was struck down in 1936 because regulating agriculture was something Congress wasn't supposed to do, and a certain bundle of taxes and spending were considered to be regulations of agriculture. This approach was, of course, pretty much abandoned after 1937 in all post-New Deal jurisprudence, and for good reason: it was silly, it was confusing, and it lacked any foundation in Constitutional text. How is one to know, looking at the text of the Constitution, which subject areas are or aren't appropriate for federal treatment? Moreover, if Congressional exercise of its enumerated powers is subject to such censorship on the basis of old-fashioned notions of propriety, the government will be perpetually unable to meet the needs of a changing world, not because it lacks the authority to do so under the Constitution, but because the needs are new and people are unaccustomed to thinking of Congress using its powers in that way. Categorical federalism, as it was called, was a mess, and was rightly abandoned.

But in the last third of the twentieth century, and continuing right through June 28th, 2012, the Court has developed a new standard by which to judge Congressional exercise of its taxing, spending, and regulatory powers against some notion of state sovereignty: the compulsion test. The basic idea is that Congress may not compel or coerce states to behave a certain way. South Dakota v. Dole, among other cases, upheld a law in part by finding that it wasn't coercion. New York v. United States struck down one provision of a law on the grounds that it was compulsion of state legislatures. Printz v. United States held that Congress couldn't conscript state law enforcement officers into the administration of federal regulations. And, a few weeks ago, the Court in National Federation of Independent Business v. Sebelius held that changing the conditions of a federal/state jointly-administered spending program could amount to coercion, if the dollar figures involved were big enough. In my opinion there's a tremendous amount of confusion in this whole area, mostly because the Court has declined to pursue one of the two clear, coherent paths of reasoning on the issue.

Define "No Choice"

The lynchpin of the argument, accepted by all but two (awesome) Justices of the Supreme Court, that the Affordable Care Act's expansion of Medicaid was unconstitutional is the idea that Congress cannot "coerce" states into adopting such-and-such a policy by threatening to withhold funds. It cannot leave states "no choice" in the matter. The test implied is that very modest financial incentives are okay, but larger ones are not, or, in this case in particular, that incentives involving the removal of funds currently given to states and upon which those states currently rely are not acceptable. But this criterion does not sit well with the simple fact that this case concerned very specifically federally-imposed conditions on the spending of specific federal dollars for a specific program. Yes, states rely on Medicaid funding. What do they rely upon Medicaid funding for? Medicaid! If a state fails to comply with Congress' conditions for Medicaid programs, they lose their Medicaid funding, but they also lose their Medicaid expenses, because they lose their Medicaid program. The part of a state's budget that isn't Medicaid is left untouched. Everything the state does aside from Medicaid, that is, has not been threatened.

Now, it's true, as Justice Ginsburg's awesome partial concurrence, partial dissent (and the dissent is really the best part) points out, that state officials rendering actual judgments as to whether or not to accept the new conditions and get the new funds do not actually have much of a choice. But that's just because Medicaid is such an obviously sweet deal that voters in every single state, from Vermont to Wyoming, would throw their state elected officials out of office ASAP if they decided to opt out of Medicaid. But that's not a gun to the head! This is "not having a choice" in the same way I wouldn't have a choice if you offered me $1,000,000 on the condition that I said "thank you" afterwards. It's bloody obvious that I'll be better off, and spectacularly so, if I accept. No rational person could choose to decline. Likewise, no rational state could choose to decline to accept the Medicaid funds. But Congress is not threatening, in order to get states to run the Medicaid program the way Congress wants, to make non-complying states worse off than they would have been if Medicaid didn't exist.

Now, if the federal government routinely paid for 50% of each state's budget, by simply handing over that much money and telling the states to use it to pay for stuff, and then attached conditions saying, oh, and by the way, if you don't pass laws X, Y, and Z we'll cut your funding off, that would be coercion. Those federal dollars would have become intertwined in everything the state does, and the loss of them would present the state with only two choices: double state taxes, or halve state services. That's a gun to the head. And that's why the crucial difference between conditioning funds on meeting certain requirements about how you spend those specific dollars and conditioning funds on unrelated policy is so important. A state that decides not to comply with the new Medicaid provisions will stop having Medicaid, or perhaps it could choose to raise sufficient taxes to run a Medicaid-esque program by itself. But the simple fact that the Medicaid program is such a large portion of states' budgets, and that federal funds for it are such a large portion of state revenues, does not mean that states depend on those funds. It means Medicaid is a big, expensive program. As it happens, people like Medicaid, and will want to keep it quite a lot, even if that means accepting new conditions. But it's not something they were doing before Congress came along that Congress is now threatening to interfere with.

No, Roberts Did Not Say the Mandate Violated the Commerce Clause

A lot of people, in describing the recent health care ruling by the Supreme Court, say things like, "Chief Justice Roberts' majority opinion ruled that the individual mandate violated the Commerce Clause, but that didn't matter because the mandate was a valid exercise of Congress' power to levy taxes." Jon Stewart said something similar in his segment on the Court's ruling, or more specifically on news coverage of that ruling. But the thing is, this isn't true. You can't "violate the Commerce Clause." The Commerce Clause is not a prohibition on anything. It's a grant of power. Now, you can fail to be within that grant of power, but that's a different thing. If it weren't, here's a partial list of things that would "violate the Commerce Clause": the issuance of federal debt, coining money, punishing counterfeiters, establishing the Post Office, creating patents, creating the lower federal courts, declaring war, creating the military, and governing the District of Columbia. Now, all of those things are constitutional, and obviously so: they're each pretty much the central application of one or more of Congress' other enumerated powers. But declarations of war, for instance, are in no conceivable way supported by the Commerce Clause itself. This doesn't matter, because that Clause is only one part of a broader grant of power to Congress. To fall outside of Congress' enumerated powers, you need to fail to be supported by all of them at once. Essentially no act of Congress is ever supported by more than a handful.

What Roberts ruled was that the individual mandate fell within Congress' enumerated powers, along with the rest of the Affordable Care Act. He also clarified that, in his opinion, the mandate was justified by the Taxing Power but not by the Commerce Clause. That doesn't mean it was "unconstitutional under the Commerce Clause, but valid under the Taxing Power," or something. As far as I know, if an act of Congress actually does violate one of the provisions of the Constitution, in a manner deserving that term, it is unconstitutional. For instance, many things might be within the meaning of the phrase, "The Congress shall have the power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," but also be prohibited by the phrase "No Tax or Duty shall be laid on Articles exported from any State," from Article 1, Section 9. Such an Act would be valid under the Commerce Clause but invalid under the "not taxing exports from a state" Clause, which doesn't really have a name because it hasn't been very important in constitutional jurisprudence, and it would be unconstitutional and get itself struck down. But going the other way doesn't happen. If you fall outside of one of Congress' enumerated powers, but within another, you're valid. If you fall outside of any of Congress' enumerated powers, then you violate the Constitution by being unsupported by anything in that document. But you can't "violate" one part of a grant of power; it's just not what the words mean.

A minor point, but it's kept bugging me in the coverage of this whole affair.

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.

It's Good to See the Eighth Amendment

Not as headline a case as the Arizona immigration case or the yet-to-be-announced Affordable Care Act litigation, but the Supreme Court's ruling today in Miller v. Alabama is really nice to see. Basically this case extends the logic of the 2005 decision Roper v. Simmons, which prohibited the death penalty for crimes committed before the age of 18, to also prohibit life imprisonment without the possibility of parole for such crimes. Both cases featured the Court's four liberals plus Justice Kennedy; though she was still on the Court then, O'Connor dissented from Roper. The argument is very similar in each case: like execution, a sentence of life without parole constitutes "giving up" on someone, condemning them as beyond rehabilitation, beyond correction (in the sense of "Department of Corrections"), beyond any hope that they might some day be able to rejoin society. And, so sayeth the Court, nothing someone does when they're still a minor can be sufficient reason to give up on that person forever.

I'm happy about this case for a lot of reasons, one of which is just that it's a left-wing result that I like very much on its own merits. But I'm also kind of pleased to see slightly innovative uses of the Eighth Amendment continuing even through this dark era on the Court. Obviously Kennedy is the key figure there, with this just sort of happening to be one of the areas where he's idiosyncratic (in keeping, generally, with his internationalist slant; many European countries have held life without parole for anyone unconstitutional). But if I were to write up a wish list for genuinely creative liberal jurisprudence should we get to replace one of the five conservatives before one of the liberals gets replaced by a Republican, the Eighth Amendment would be high up on it. Ideally I'd like to see the Court become willing to straight-up scrutinize the whole "punishment fitting the crime" thing, and overturn some of these obscenely long prison sentences that have been trendy over the last few decades. It's a little hard to tell what might be possible with five actual liberals on the Court, since it's been so bloody long since that was last the case, but one reason to smile about Miller is its indication that some creative Eighth Amendment jurisprudence may not be so terribly impossible.

Polarization is not Extremism

People talk a lot about political polarization these days, and there's a general tendency to feel that increased polarization means increased radicalness, extremism, etc., at the expense of moderation and compromise. Well, that's not necessarily the case. Consider the following example, which is really polarization-meets-life-appointment. Right now, the U.S. Supreme Court is extremely polarized. Four Justices, Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Steven Breyer, are rather consistently liberal in their rulings. Another four, Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito, are consistently conservative. The ninth Justice, Anthony Kennedy, is a more moderate conservative, and a bit of a swing Justice. This means that, on essentially every case, Justice Kennedy can count on having four Justices to his left, and four Justices to his right, making him the marginal Justice every time. Or, to put it another way, Anthony Kennedy is the Philosopher-King of the United States, for he is almost guaranteed to be in the majority on every case no matter how he rules.

Thoughts on the Affordable Care Act Litigation

I suppose that, since I haven't posted in a few weeks and since it was the big news over the past several days and since legal/constitutional issues are sort of my specialty, I ought to comment on the recent Supreme Court litigation about the Affordable Care Act and its individual mandate. This could get long-winded; be warned! Okay, here goes: