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.

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.

The Historical Argument for Ted Cruz's Eligibility

Rafael Edward Cruz, a.k.a. Ted Cruz, the current leading actual-politician in the 2016 Republican presidential primary, was born in Canada. It is contended by some that this makes him ineligible to be President. Well, okay, the issue has been thrust into the spotlight by troll extraordinaire Donald Trump, who's managed not to actually make the argument himself, rather alluding to its existence as a potential complication should the Republicans nominate Cruz. (His subsequent argument that Cruz should seek a declaratory judgment settling the issue once and for all is (a) a truly masterful piece of trolling, and (b) the most attention the law of remedies has had since the Kim Davis saga, teehee.) Anyway the thrust of the argument is that the Constitution limits the Presidency to "natural born Citizen[s]." What does this mean? Who knows. But perhaps it means only people who were born on American soil. And Cruz wasn't.

Under this reading, the fact that his mother was from Delaware, and hence an American citizen by the Fourteenth Amendment, and that Cruz was therefore* an American citizen from birth, is immaterial. Under any other reading it probably isn't. So the question becomes, is this reading the correct one? (Spoiler alert: no, it is not.) This legal question has a funny and oft-overlooked relationship to the whole Obama birther debate, because even if Obama really was born in Kenya, so long as we don't dispute his mother's identity then he would be in the same position Cruz is in now. Birtherism, that is to say, relies not only on a flatly-wrong view of the facts, but also on a rather extreme view of the law. Nobody really brought this up back when birtherism was a thing.

And so, you see, this puts liberals in a funny situation. We all think it's hilarious that Trump is trolling Cruz this way. But it's a little awkward for us to, like, join in the fun. Because, y'know, we think this kind of thinking is repugnant. What's a poor liberal to do? Ah, the good ol' hypocrisy gambit, by which things that aren't fair game become fair game against people who think they should be fair game (e.g. homophobic Republicans who just happen to be gay). In this context it works by asserting that the narrow reading of "natural-born citizen" I described above would be correct under an originalist theory, that Cruz favors originalism, and that therefore, in Ted Cruz's own opinion, Ted Cruz is ineligible to be President. This also serves, for those among us who enjoy this sort of thing (e.g. Fordham Law professor Thomas Lee), as a convenient way to get in a few pot-shots against originalism. It's reminiscent, in that way, of Erwin Chemerinsky's argument from a few weeks ago that, under an originalist theory, women can't be President. I don't like that sort of thing. I didn't like it when Chemerinsky did it, and I don't like it now.

Because, you see, it turns out that the correct historical approach to this problem reaches the same damn result as every other kind of argument: yes, Ted Cruz can be President. I'm not gonna do exactly what I did last time, running through the modalities in turn, because the issue doesn't seem to have that kind of shape to me. Rather, I'm going to discuss two arguments, each of which weaves together several modalities. They reach the same conclusion, but one of them is pointedly anti-originalist and the other, y'know, isn't.

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.

Giving Constitutional Argument a Bad Name

So apparently Erwin Chemerinsky goes around maintaining that the text and history of the Constitution don't suggest that a woman can be President. This is called giving constitutional argument a bad name. This outrages me so that I thought I'd just give a quick run-down of different ways to approach this problem from various modal angles.

The Connecticut Supreme Court is Right: Prospective Abolition of the Death Penalty is Cruel and Unusual

In 2012, the Connecticut legislature abolished the death penalty. Today, the Connecticut Supreme Court held that the death penalty violated the state constitution. You may be wondering how both of those sentences can be true (and no, they didn't reinstate it during the past three years). The answer is that the 2012 abolition was prospective; that is, it did not apply to those who had already been convicted and sentenced to death. The court's ruling, then, was that actually carrying out the death sentences that have already been imposed on Connecticut's 11 death row inmates would be (state-)unconstitutional. More specifically they held that executions would violate the due process provisions of the Connecticut constitution, which are understood to contain a ban on cruel and unusual punishments. Now, there's nothing especially remarkable about the idea that capital punishment is cruel and unusual. But the court's reasoning was, at least in part, new and interesting, and I quite like the move they make.

The basic puzzle of what, at the federal level, we call Eighth Amendment jurisprudence is determining what the second part of "cruel and unusual" means. Well, that's the puzzle if we reject the Scalia-esque "originalist"* notion that the phrase "cruel and unusual punishments" is just a shorthand for a discrete list of punishments considered cruel and unusual in 1791. Which we do. So the question then becomes, okay, we have a sense of what a "cruel" punishment is, but how to measure its unusuality? Do we just count the states? By raw number of jurisdictions, or by population? Do foreign countries count, and if so which ones? How quickly do new trends away from the use of a certain punishment become incorporated into the Constitution? Are public opinion polls relevant? All of this arises primarily in the federal context, wherein the U.S. Supreme Court is interpreting the Eighth Amendment as it applies to the federal government directly and to the states as incorporated into the Fourteenth Amendment. But analogous issues could arise when a state court interprets an analogous provision of the state constitution. How do the other 49 states get counted for that purpose? Do they play the same role as in federal Eighth Amendment analysis, or are they more like foreign nations? After all, they are external to the individual state. But within a given state a punishment won't be "common" or "unusual," it will either be provided for by state law or it won't be; internal counting becomes binary. The whole thing is rather a mess.**


The neat thing about this Connecticut case, though, is that it doesn't have to bother with that whole issue. Because what they say, at least in part, is that we know executing these condemned prisoners would be cruel and unusual because the Connecticut legislature has already said so. They abolished the death penalty! Because they thought it was cruel! Making it, thereafter, not to be found within the state of Connecticut. At all. Which is rather on the unusual side. This is brilliant, and, I think, surely right. Is it not truly anomalous, truly unusual, for a state to inflict a punishment which it has already abolished? Is there not something singularly cruel about saying to a handful of unlucky people, we now think it's wrong to punish anyone as we have determined to punish you, but we will so punish you nonetheless? It's, like, sick.*** It almost has a somewhat bill-of-attainder feel to it, i.e., "we will not impose capital punishment (except on these eleven specific individuals)."

One interesting thing, though, is the dynamic if the rule against prospective abolition (or rather, the rule that any purported prospective abolition must in fact be retroactive as well) became firmly established. Because presumably this would discourage any state that was considering a prospective abolition from doing so--assuming, of course, that there really wouldn't be the appetite for retroactive abolition in that state. So while in principle I might like it if the U.S. Supreme Court held that a state which has prospectively abolished the death penalty cannot carry out executions going forward (again, assuming they're not gonna just do the right thing and hold the whole thing unconstitutional), there might be some interesting prudential reasons not to do that, but rather to hope that the courts of each prospective-abolitionist state will surprise their legislatures with a ruling like this one out of Connecticut. Except that many state courts might come out the other way, and if not then at some point legislatures might wise up anyway. There's sort of an interesting game theory dynamic to the whole thing.

But the basic point is that this is a very clever and well-reasoned decision, and of course a humane and decent one. Also it makes me happy because it was a state law decision and therefore cannot be overruled by the federal courts. Hooray for state constitutional law!


*Asterisk meant to note that Scalia is by no means the exclusive and authoritative oracle of originalism, and other originalists, like Steven Calabresi, might not endorse his approach.
**Of course, this is one of the reasons why I like Justice William Brennan's approach from Furman v. Georgia, which understands "unusual" not to mean "rare" or "infrequent" but to mean "strange" or "weird." Thus he held capital punishment to be cruel and unusual because we long ago abandoned all other forms of corporal punishment, making execution qualitatively unlike any other punishment currently in use within America. Of course, this qualitative determination becomes a matter for the reasoned judgment of judges, rather than imposing any external/objective constraints on judges, but hopefully the paragraph above demonstrates that the quantitative approach is so ill-defined that it doesn't really constrain judges either. Also, y'know, the idea that we need to be constraining judges is itself wrong-headed, but that's sort of a broader point.
***Of course, this isn't the only context in which laws are passed reducing the available punishments for certain crimes on a prospective basis. Recently, for instance, both the federal government and many states have reduced sentences for various drug crimes, but have not automatically released every drug criminal who had already served more than the new maximum sentence for their crime. This feels less appalling, though, and I think the reason why must be found in Brennan's qualitative approach. Connecticut divested itself of the power to impose an entire class of punishment, except for a handful of unlucky souls. By contrast, reducing prison sentences for drug crimes does not strip the state of its power to imprison people. There is also the singular quality of executions, that they are carried out at a specific time subsequent to their imposition. Indeed actually carrying out an execution is commonly understood to be a distinct decision, separate from the decision to impose the sentence; hence, there is something singularly ill-seeming about making the decision to carry out an execution when the state can no longer make the decision to impose such a sentence. I would imagine, however, that other prospective abolitions of whole categories of punishment would raise similar issues.

Never Forget! Republicans Are the Party of States' Rights (Except Their Right to Regulate Corporations)

So the House of Representatives just passed a bill that would prohibit states from requiring the labeling of genetically modified food. I mention this not so much for anything about the merits (as to which, my best impression is that there's no good reason to think GMOs are problematic, but also I don't see any real harm in labeling them; if people want to be idiots that's sort of their business and it doesn't feel right to trick them into doing what you think is best for them) but because of the constitutional politics of it. Because, y'know. The operative words of the bill are "prohibit states." Which is not a very states' rights-y thing to do. To be clear: this is absolutely constitutional. Congress has the power to regulate interstate commerce and to preempt any state laws contrary to its own regulations. That isn't, or at least shouldn't be, in controversy. But anyone who really believed in the political values of federalism, in the modern, pro-state sense of that word, would oppose this bill.

But of course, the people who passed it are precisely the ones who like to go on and on about states' rights. So the next time any Republican talks about how, I dunno, the Voting Rights Act or whatever violates states' rights, just remind them of the time that they passed a bill that would literally remove the states' right to protect their citizens from what they perceived as a potentially threatening or deceptive trade practice. The main state's right they care about is the right to discriminate; if there's a conflict with corporate rights, federalism is going to lose every time.

That Confederate Flag at the South Carolina Capitol is Unconstitutional

And all the streets named for Confederate generals, too.

Unconstitutional, you say? Surely not; how does a state flying some ol' flag violate anyone's constitutional rights? The answer is simple: it's about what it expresses, namely white supremacy. (People try to deny that. They have about the same success as people who try to deny global warming, evolution, or that the earth is round.) So now let's ask: are state governments allowed to express white supremacy? No! That's an easy one. Imagine if the South Carolina state legislature passed a resolution declaring the white race superior to the Negro race (and all the other ones), and that society ought to be run as a racial caste system with whites at the top and Negroes at the bottom. This wouldn't deprive any black people of any material goods or tangible rights, and yet I don't think it's all that radical to say that this would be unconstitutional. Or maybe it is, I don't know. But it seems obvious to me. I think the Fourteenth Amendment requires all states not merely to treat all of their citizens as equals but to believe that all of their citizens are equals. In practice this means they're not allowed to do anything that signifies or evinces a belief in the inferiority of some citizens, even if that thing has no tangible, non-expressive effects. And, y'know, I think it's about as safe to say that flying the Confederate flag in front of your state capitol expresses a belief in the inferiority of African-Americans as it is to say that imposing a scheme of comprehensive racial segregation expresses that belief. Hence the unconstitutionality thing. If someone wanted to sue South Carolina in federal court seeking an injunction ordering them to take the flag down, I would say without much doubt that the injunction should issue.

And the same is true in principle of all the Confederate-named streets. The only tricky part is that it's not as clear, like, at what point the street names become an endorsement of white supremacy. Calling U.S. Route 1 the "Jefferson Davis Highway" throughout much of the South is a pretty clear violation, but surely any ol' Davis St. or whatever isn't. And is the rule that there can never be any streets clearly named for prominent Confederate figures, or just that there shouldn't be too many of them? I dunno, and trying to adjudicate these sorts of claims might be a morass into which the courts would be wise not to venture, given the minimal tangible stakes. But the principle of the thing is the same. Any state "celebration" of its white supremacist history, and especially of its Confederate history, that does not in any way acknowledge and repudiate the deep evil of the Confederacy and of the ideology to which it was dedicated is itself a tacit expression of white supremacy and is hence unconstitutional.

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.

Why Death Is Different

The central problem of capital punishment law, or at least of capital punishment doctrine, is the tension between the demand for rational, consistent sentencing free from arbitrariness or bias on the one hand and individualized sentencing on the other hand. The former idea was the basis for the Furman v. Georgia decision that briefly instituted a national moratorium on capital punishment, and the idea in that case was that it was simply unacceptable that, of the large number of people out there convicted of capital offenses, only a small number were chosen to die and there didn't seem to be any apparent acceptable reason why these people, and not those other people who committed the exact same crime, ought to die. There were of course readily apparent unacceptable reasons, namely that if you were poor or black you were probably one of the ones who "ought" to die. The Court didn't really grapple with those issues, but it did say that arbitrary imposition of the death penalty was unacceptable, and that something must be done to limit the ability of sentencing juries (for it is juries, not judges, doing the sentencing in most every capital scheme these days*). However, the Court has also held that a capital sentencing scheme must allow the jury the essentially unlimited ability to exercise mercy: that is to say, to look at the particular defendant as an individual and decide that, despite their crimes, they do not deserve to die. There is of course a problem here, and as Justice Blackmun observed in his dissent from the denial of certiorari in Callins v. Collins, in which he wrote his famous "From this day forward I no longer shall tinker with the machinery of death" line, the end result has just been to subject a (slightly) smaller number of people to the same kind of arbitrary sentencing that was at issue in Furman.

One natural response to that whole discussion is to say, well, how is this problem in any way peculiar to capital cases? Doesn't the tension between the demands for consistency and for individualized mercy manifest itself in any kind of criminal case? What's different, in other words, about death? And I've never had a great answer to that. I mean, there are obvious reasons why the death penalty is different in general, mostly the irreversibility of a wrongly imposed sentence. But I think I only just realized why death is different specifically as regards this specific little paradox. And the reason, I think, is a line that a number of different death penalty advocates use; a quick search shows it being used by Bryan Stevenson and by Helen Prejean:

Each of us is more than the worst thing we've ever done.

And I submit that this incredibly powerful idea is simply not relevant in non-capital cases. It is always true. The criminal is always more than just the crime, no matter what the crime. But that doesn't mean they shouldn't be punished for the crime. Except when the punishment in question is their total destruction. Then this idea becomes relevant in a big way. And it makes us feel the need to ask of each capital defendant, well, how much more? The way the penalty phase of most capital trials proceeds these days, I believe, is basically that the defendant tries to show the jury something in them that's worth saving, to show the jury that they are meaningfully more than the worst thing they've ever done. Whereas, say, a proper psychopathic serial killer may really just not be appreciably more than all the murders they've committed, and is hence seen as not worth saving.

And so the demand for sentencing to be individual really is peculiar to capital cases. In every other kind of case we're happy, more or less, to just say, y'know what, you did the crime, so you have to do the time, no matter how much of a worthwhile person you might otherwise be. But we can't quite bring ourselves to say that when we're talking about killing the person. But that kind of thinking is just anathema to what our legal system is supposed to be. This isn't to say that the same issues of racial bias don't find ways to manifest themselves at the lower levels of criminal cases; they surely do. But it's not just racial bias that's wrong with capital sentencing: it's the feeling that, of the set of people who committed certain crimes formally denoted the "worst of the worst" (although that designation is basically a joke given that most jurisdictions include felony murder), some are being executed and others aren't basically just on the basis of whether the jury likes them or not. That kind of stops feeling like the rule of law, and it only does so because we (rightly) can't bring ourselves to kill someone who has anything worth saving in them, even if they may have committed terrible, terrible crimes. Because we recognize, on some level, that people are—or at least can be—more than the worst thing they've ever done.

And that's why death is different (in this regard).


*In a few places judges can "override" a jury's verdict. In even fewer places that can include overriding a life imprisonment verdict and having the judge himself impose a death sentence.

Moral Certainty and the Constitution

Criminal defendants are innocent until proven guilty beyond a reasonable doubt. That's the standard formulation, the modern one at least. The idea is pretty simple: criminal convictions carry severe penalties, usually imprisonment, these days for lengthy terms, and so if there's doubt as to whether or not the defendant is guilty, we shouldn't impose those penalties on them. Except that there's always some doubt about everything, so we limit it to reasonable doubt. Makes sense. Another version of the same idea, which I believe may have been used in criminal cases in the old days, is the idea of proof "to a moral certainty." Moral certainty is an old idea that seems to have been inspired as a defense against, like, philosophical skepticism. The idea is, well, okay, yes, we never really know anything absolutely for certain, but we can know things to a degree of certainty that's enough to act on. Moral certainty is basically, I would think, that degree of certainty upon which it is morally acceptable/defensible/correct to act. And of course, this standard will be more or less strict depending on the action being contemplated. Sometimes we might think it correct to act on little more than just a hunch or a suspicion, because it's not that bad if we're wrong, or because it could be very bad if we don't act and should have. In, say, the criminal law context, however, we really don't want to convict someone who doesn't deserve it, for the reasons given above, and so it takes a lot of proof to prove guilt to a moral certainty. It's all one standard, but the work it does varies by context.

I've just been reading McCleskey v. Kemp for my Capital Punishment class. That's the case where the Supreme Court rejected a challenge to the Georgia death penalty as racially discriminatory and hence a violation of the Equal Protection Clause despite an incredibly sophisticated statistical study demonstrating that death-eligible killers whose victims were white got the death penalty a lot more often than those whose victims were black. The Court was basically applying standard (twisted) Equal Protection doctrine, which holds (under the Washington v. Davis standard) that a challenge under the Equal Protection Clause bears the burden of demonstrating intentional discrimination on the basis of race or some other improper factor. Merely showing that a policy has a "disparate impact," i.e. that it's worse for black people/women/etc. than for whites/men/etc., is not enough, although a sufficiently stark disparity can be circumstantial evidence of discriminatory intent. So in McCleskey, the Court says that this study shows only the risk that race may infect capital sentencing decisions, not that any given sentence was the product of intentional racial discrimination. After all, the authors of the study conceded that they cannot prove "to a moral certainty" that race influenced any particular case.

And when I read that phrase, I just had to think, like, what does moral certainty require in this case? I mean, I actually think that the idea of moral certainty ought to doom the death penalty altogether,* but let's set that aside. The Court was asked in this case to set aside McCleskey's death sentence as having been improperly influenced by race. If McCleskey is wrong and his sentence was totally race-free, but the Court found for him anyway, well, horror of horrors, he would spend the rest of his life in jail. That's, I mean, if we consider that a by-hypothesis fair jury thought he should hang, then I guess that's not a great result, but certainly, Warren McCleskey's being imprisoned rather than executed isn't in any way repugnant to our fundamental laws or principles of justice. If, on the other hand, he was right, and his sentence was discriminatory, but the Court didn't act, well then, a black man would be executed for the specific crime of killing a white person. And that is a constitutional abomination. And so it seems to me that this is a case where the "moral certainty" standard is very low. In fact I think the "moral certainty" standard should basically be on the other side, that unless we could say to a moral certainty that race was not the deciding factor in McCleskey's case we should grant him his reprieve.

And this, I think, should hold true across constitutional law generally. People often say that our Constitution, with its multiple veto points between the bicameralism-and-presentment legislative system, the President's pardon and prosecutorial discretion powers, judicial review, etc., is designed to minimize the amount of legislating that goes on, that it is inherently biased in favor of government inaction. As Akhil Amar I think rightly notes, however, the system is not really designed to prevent any laws from passing but to prevent unconstitutional laws from passing: everyone gets a chance to disapprove a law if they think it's unconstitutional. And if we buy that understanding of the Constitution's overarching priorities, then shouldn't we have a general rule that we won't accept the risk of a constitutional violation? We already do this in places: the Miranda rule, for instance, is a clear case where the constitutional violation is not interrogating a suspect without having first informed them of their rights, it's tricking someone into confessing who doesn't know that they have a right not to, and we can't know that this isn't happening unless we provide a warning. There are other examples, but there are also lots of places where we take the opposite approach, where the Court in essence seems to view the wrongful exercise of judicial review as this terrible tragedy that we must be so very careful to avoid. But that just seems backwards. The tragedy is letting constitutional violations happen right under our noses, when we know that they might be happening, just because we can't be sure that they are. We should err, in other words, on the side of not violating the Constitution, and judges are supposed to play their part in making sure that we do.^

This is, I think, one of the strongest forms of my problem with modern equal protection doctrine and the Washington v. Davis standard: discrimination on the basis of race is, like, the greatest constitutional evil there is. It's America's original sin, we literally fought a war that culminated in a series of amendments designed to eradicate it, and the only thing that lets us even pretend to be a decent country is that beginning in 1954 we actually started trying to live up to those amendments. So why the bloody hell is the burden on the challenger to prove that there was intentional racial discrimination? Maybe some of the time when policies have a racially disparate impact it will be completely innocent, but like, so what? If we assume ad arguendo that there's this vast swath of racially disparate things governments do where we just can't tell whether or not they have discriminatory purpose, shouldn't we just not do any of those things? Like, even when we're wrong, I'm not too cut up about having governments no longer do things that disparately hurt black people. If that is the cost of my false positives, and the cost of false negatives is allowing deliberate racial discrimination to proceed, like, even under the Washington v. Davis theory that the Constitution only forbids the latter, shouldn't we still be willing to swallow an awful lot of false positives to avoid false negatives? Now, I actually think we can be somewhat more, ahem, discriminating between different disparate-impact policies, and sort out which ones are okay and which ones aren't (basically by putting stronger and stronger burdens on the government to justify its policy choices as the disparities grow wider), but the prime directive of our equal protection doctrine has just got to be making sure that, as far as is possible, we not let organs of the American government do racially discriminatory things.

And in general that we not allow constitutional violations to happen. We, the American people acting through our federal and state governments, don't have to do things. We could not do things. And so, I think, we shouldn't require moral certainty, in any very stringent sense, before courts will stop us from doing things in the name of the Constitution; rather, we should demand moral certainty that our actions are constitutional before we do them. And courts should be similarly hesitant to allow any government action, particularly action that deprives any person of life, liberty, or property, to proceed if they cannot satisfy themselves that it is constitutional. Perhaps there should be some prudential exceptions to that rule, where the practical consequences of inaction in a field of constitutional uncertainty will be truly dire, or--if this is a thing--where the potential violations feel somewhat de minimis. And the rule isn't that all legislation must prove its constitutionality beyond a reasonable doubt, as we mean that in the criminal context. But the judicial attitude should be one of vigilance, of caution not toward wielding the awesome power of constitutional review but toward failing to wield that power when the Constitution's defense required it.




*Once we admit that there's any possibility of wrongful convictions, which at this point is on par with admitting that the earth is round, then, well, we just don't have to execute people; even in cases with the most overwhelming proof of guilt of the most reprehensible crimes, we can just lock people up, presumptively forever, but then retain the ability to at least partially fix our mistakes if it turns out we made one.
^Of course, judges aren't the only ones with this responsibility; in at least some senses, legislatures have primary responsibilities for not passing unconstitutional laws in the first place. This doesn't mean, however, that legislatures should decline to pass any law that they worry the courts will invalidate; doing so would result in a gap between those laws that the courts actually do think are unconstitutional and those that the legislature can actually pass, which would be a needless limitation on the people's ability to self-govern. Rather it means that a legislature should obviously not pass any law which it itself believes to be unconstitutional, and (zooming in one level) legislators oughtn't vote for laws they think are unconstitutional. That includes laws that the courts would predictably uphold!

State Judges Should Ground Their Rulings in Their State's Constitution

It always feels a bit weird to me when a state Supreme Court has held that some law or practice of that state is unconstitutional, and then the U.S. Supreme Court reverses. Like, I dunno. If a state legislature refrained from passing a law because it thought the law violated the federal Constitution, but the federal courts disagreed with this conclusion, they wouldn't be able to force the state into passing the law. Why, from the federal government's perspective, should it matter which officials within the state government decide that the state is not going to have a certain law, because they erroneously believe it to be unconstitutional? It feels like forcing the state to do something it doesn't want to do, which is just weird. Of course, I get that this logic doesn't really hold, among other things because someone will have appealed the case to the Supreme Court, either the state government itself (in which case it's not quite right to say that, as far as the feds are concerned, the state doesn't want to enforce the law) or a private party whose success in some lawsuit depends upon that state law's being valid. That person is entitled to their judgment unless the federal Constitution says otherwise. So, I get it. The federal courts are allowed to reverse state court decisions interpreting the federal Constitution, even when that means vacating a judgment voiding a law of their own state.

But... why would a state court ever allow one of its judgments to suffer this fate? Because the thing is, just as state courts have no authority to interpret the federal Constitution contrary to how the federal courts interpret it, so too do the federal courts have no authority to interpret state constitutions contrary to how the state courts have interpreted them. And I believe that almost every state constitution has general language in it similar to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which are responsible for the overwhelming majority of the unconstitutionality of state laws. (Technically much of that burden should fall on the Privileges or Immunities Clause, but as a doctrinal matter it doesn't so that's beside the point for this purpose.) So, therefore, if I were a state supreme court and I were drafting an opinion striking down some state law because I thought it contrary to the federal Constitution, I know what I'd do, every single time: I would include a bit of language saying that, oh yeah, the analogous language in my state's own constitution commands the same result. Because, you see, the federal courts can't touch that holding. So even if they think I'm wrong about the federal constitutional issues, they can't actually reverse my judgment and reinstate the law. Hell, if I include one paragraph making clear that I've read my holding into the state constitution as well, the government (or whoever) can't even appeal to the federal courts, because the case would be moot! It would totally immunize my judgments (of this sort) against federal reversal.

I'm reminded of this by seeing a dissenting judge in a Georgia case about racially discriminatory peremptory strikes in the selection of juries argue for a similar tactic. Except there, the federal law had already been established, so the court would just have been saying, "well, yes, the federal Constitution doesn't require this, the Supreme Court has said so and we're bound by that, but we think the Georgia Constitution does." Quite rightly, he admits that Supreme Court doctrine limiting the application of the rule against such discriminatory strikes is binding on the Georgia court, but as he points out, there is absolutely nothing wrong with interpreting the state's own constitutional guarantees to go beyond the federally-mandated "floor." Just so: when the federal courts decide that a certain state practice is unconstitutional, that's the end of things, but when they decide a practice is constitutional, state courts are still allowed to have their own say, and they may do so in ways that no federal court can touch. Even of nothing more motivates the state judges than a belief that the federal courts are wrong, and should be interpreting the federal Constitution differently! State judges have essentially plenary power to effectively nullify any federal constitutional decision upholding state practice. And that's good--this isn't like ordinary nullification, where a state tries to nullify a federal law or do something that the federal courts say does violate the federal Constitution, because there's nothing in federal law requiring the states to do things the Supreme Court says aren't unconstitutional.

So why don't we see state courts using this tactic more often?

Executive Agreements, Iran, and Missouri v. Holland

So. A bunch of Republican Senators have apparently written an "open letter" to the government of Iran regarding negotiations currently taking place between Iran and various Western countries, including the United States. This is, shall we say, highly improper. It would rather easily answer to the description "unconstitutional," in a vague, amorphous sense (obviously there's nothing for a court to review or invalidate, but the letter is pretty clearly inconsistent with an overall constitutional structure in which the President is given primary responsibility for diplomacy, out of a felt need for the nation to speak with one voice in foreign affairs). Arguably it also at least skirts the line of being illegal, under the Logan Act of 1799, which bans unauthorized citizens from corresponding with foreign governments to try to influence their behavior toward the U.S. (Although obviously the Obama Administration is not going to prosecute these Republican Senators for this offense, even if they're guilty of it: prosecuting your political opponents, generally not great politics. Also the law is of dubious constitutionality (and they could easily have mooted the whole issue by just reading their "open letter" into the Congressional record, invoking the Speech and Debate privilege, which is absolute).)

But that's not the point, of this blog post at least. Rather, what interests me about the letter is the way it helps tie together some thoughts I've been having of late about "executive agreements." Because that's the main thrust of the letter, which purports to explain certain "features of our constitution" which Iran should keep in mind while negotiating. By this they mean the esoteric fact, which surely the leaders of Iran have never encountered before, that the United States has the world's worst treaty ratification system, requiring a two-thirds vote in the Senate that is basically impossible to obtain even on totally uncontroversial things. This means, the Senators accurately note, that any agreement reached in the present negotiations will be a mere "executive agreement," which, they note, a new President could revoke unilaterally. This is, if you take it on its face, a pretty majestic display of concern-trolling: it's not that the Senate Republicans are opposed to the deal (which would make it a little tougher to deny the Logan Act violation), they're just concerned for the poor Iranian government, which might find itself being misled by that nasty Obama into thinking it has a binding agreement, and might do something like act in reliance on that belief, only to find that, in fact, the next President pulls the rug out from under them. We wouldn't want that, now would we.

But of course, they are right: the deal would only be an executive agreement (because we all know that these same 47 Republicans would vote against ratifying the treaty that will never be drafted, let alone presented to the Senate, before they even read its language (which is why it will never be drafted)). So... what? What exactly are executive agreements, in the constitutional structure? How are they different from treaties? Are those differences relevant from Iran's standpoint? (Spoiler alert: the answer to that last one is "no.") Like probably most people who've ever heard the phrase, I first learned about "executive agreements" in my high school civics class (okay, it was AP U.S. Government, which might explain why we learned about executive agreements...), and have always had the general sense that they're just this thing, this informal treaty-like thing, that doesn't require Senate ratification but also therefore in some vague way doesn't have the same kind of force of law. That way of discussing them leads to the feeling that there's something vaguely unsettling or illegitimate about them. But there isn't, and seeing why requires merging the great big lesson of a class I'm taking this semester, Administrative Law, with the great case Missouri v. Holland.

Sometimes the Easy Thing is Also the Right Thing

This semester I'm taking a class called "Capital Punishment: Race, Poverty, and Disadvantage." It is shaping up to be a rather unsettling class, though obviously in ways that are a feature and not a bug. In any event, our reading for this week is Furman v. Georgia, the 1972 case in which the Court briefly declared the death penalty unconstitutional. This is what I like to call a "seriatim" case, one in which every single Justice wrote an opinion of his own (in addition to a per curiam announcing the judgment of the Court but not the reasoning); the word is used to describe the British practice, also followed during the first decade of our Constitution, in which there was no single opinion of the Court and each judge would always deliver his own opinion. Chief Justice John Marshall abolished seriatim decision-making to promote Court solidarity and enhance its power and prestige, but every so often (especially during the Burger Court, I've found) things break down and most or all of the Justices need to have their say.

Anyway, one of the opinions was of course by Justice Blackmun. Here's how it opened:

Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life’s experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of “reverence for life.”

This was a dissenting opinion. Because, Blackmun says, his sentiments against the death penalty are purely those that should characterize legislative or perhaps executive decision-making, not the judicial disposition of cases. A little later on he says that:

To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death.

The implication is that, while it would be easy, it would not be correct, and it would not be correct because this is not a decision for judges to make. This is a pretty common trope, employed perhaps most often by Justice Felix Frankfurter, although Blackmun's opinion is unusual in a way. The typical Frankfurter line is that "whatever we may think of the merits of this policy," it is not unconstitutional and therefore the judiciary is powerless to stop it. Blackmun, on the other hand, tells us in no uncertain terms what he thinks of the policy; he goes into considerable depth about how it is contrary to all of his deepest values.  Blackmun closed by saying that:

Although personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.

Of course, some several decades later Blackmun famously declared that he would "no longer tinker with the machinery of death." That is to say, he had become convinced not that capital punishment was inherently unconstitutional but that it could not be imposed through a system that was anything other than arbitrary and capricious, contrary to the Constitution's requirements.

There's a lesson in that, I think. From his childhood through his retirement from the Court and his death, Harry Blackmun felt nothing but revulsion toward the death penalty. When he joined the Court, he felt however compelled to ignore his own moral impulses and instead apply "the law," operating of course under the assumption that those were two disjoint categories. Justice Blackmun would not do the "easy" thing and strike down those laws he found so morally repugnant; no, he would follow the law. But the older, wiser Justice Blackmun eventually became convinced that the "hard" thing simply could not be done lawfully. He never took the position Justice Brennan forcefully (and, in my opinion, masterfully) espoused in Furman, that death was an inherently unconstitutional punishment. Rather he realized that judicial attempts to craft a system of procedural safeguards that would cabin the evils of the punishment, to "tinker with the machinery of death," were futile, that the system could never be good enough. That was the voice of experience, not naive idealism. It was rather naive when he once thought that such tinkering was worthwhile, that we could in fact build a good enough machine of death.* Experience taught him to follow his heart.

Yes, it is easy to strike the balance in favor of life and against death. There's a reason for that, and it's not just that it's the right thing to do, morally speaking (though it does follow from this basic fact). It's because a wrongful decision striking down these laws would have been no worse than any other decision wrongly denying legislative authority to the American people on some purported constitutional grounds, while a wrongful decision upholding them would have been far worse than any other decision wrongly permitting to them such legislative power, for it would have led the American government to kill people, human beings in its custody, in violation of the Constitution--perhaps the worst legal atrocity imaginable. Therefore, had I been in Blackmun's situation, I would not have voted to uphold the death penalty unless I was absolutely convinced that there was no possible legitimate constitutional argument for striking them down. This is ultimately the key point of Philip Bobbitt's theory of constitutional law: that the law is ultimately indeterminate, that there are different ways of making valid legal arguments and that these modalities can conflict, and that this is an acceptable, nay, indispensable part of our legal system because it allows us to choose. And that choice, between different possible legitimate ways of resolving a case, cannot help but be a place where conscience enters the legal system. For Bobbitt, this is the whole point.

In 1972, Harry Blackmun thought he didn't have a choice--or rather, he thought he had one choice that was easy and another one that was correct. But, fortunately, we live in a constitutional system that does make some room for conscience and for moral choice. And when we make those moral choices, when we follow our conscience in choosing between two visions of the law, of course those choices will feel easy. It should always feel easier to follow conscience than to disregard it. But just because it is easy doesn't mean it isn't also right.

Just ask Justice Blackmun.


*No, not that kind.

My Problem with Washington v. Davis

Washington v. Davis is a 1976 Supreme Court case which ruled, in essence, that the Fourteenth Amendment's Equal Protection Clause is not a self-executing ban on all government policies which have racially disparate impacts. That is to say, just because some policy has a more negative effect on black people than white people is not enough to make it into a violation of the Equal Protection Clause. To be even more specific, the point is that if all the person challenging the policy can show is that such a disparate impact exists, they lose; instead they need to show that the policy had racially discriminatory intent. Now, in some sense this has to be right. Most states fund themselves predominantly through property taxes and sales taxes and therefore have regressive tax codes, unlike the income-tax-funded federal government. Black people tend to be poorer, and are therefore disproportionately burdened by regressive tax codes. But the Equal Protection Clause cannot reasonably be construed as making sales taxes off-limits. My tendency has been, therefore, to say that I more or less agree with the statement in Washington v. Davis that disparate impact alone does not make a constitutional violation, though I might want to press pretty hard on letting disparate impact be considered evidence of discriminatory intent, perhaps even in the absence of any other evidence.

But then let's consider the specifics of the case Washington v. Davis itself, and how it relates to this week's outrage in Ferguson, Missouri. The facts of the case are that two African-Americans had applied for positions in the Washington, D.C. police department, and had been rejected based on their scores on Test 21, a verbal skills test used throughout the federal bureaucracy. They sued, because as it happens, black people failed Test 21 at a much, much higher rate than white people. (Like three times higher I think, roughly 60% versus 20%.) Now, interestingly, the Court also ended up ruling that, in fact, there was no disparate impact, because the Civil Rights Act of 1964 uses a disparate impact standard. I'm not exactly sure how they got to that conclusion, and my guess, from a judicial-sociology perspective, is that the main difference between dissenters Thurgood Marshall and William Brennan and the majority was their understanding of the disparate effects of the policy.

But in any event, now let's ask the key question: assuming, for the sake of argument, that the effect of Test 21 was to result in a more-or-less all-white police force in a majority-black city, and also assuming for the sake of argument that Test 21 was adopted with absolutely, positively no intent for that to happen, but only with intent to make sure that police officers had good verbal skills (an undoubtedly good thing!), is there really no problem here? Because, as we see so dramatically in Ferguson, the police are basically the instrument of government. They are the ones who actually impose governance and law upon the people. They are the ones who wield the violent force which the government is said to have a monopoly on the legitimate use of. And they, therefore, are the ones in position to perpetrate government abuse of the people. Hell, they're in a better position to do that than legislators, whose abusive actions can be more easily challenged in and nullified by the courts. When a cop kills someone, well, there's no such thing as compensatory damages for that.

And so I think there's a very real sense in which having a police force almost exclusively comprised of members of the historically oppressor race policing a large population of the historically oppressed race is kind of, y'know, just not okay, whether or not you meant for it to happen. For similar though arguably less weighty reasons ('cause we're not talking about the people walking around with guns on their hips), I think it's just not okay to have policies in place whose result is that your state bureaucracy is segregated into an all-male group of powerful office-holders and decision-makers and an all-female secretary pool. (That's the facts of the next case in the disparate impact sequence, Personnel Administrator of Massachusetts v. Feeney.) And I become particularly skeptical of the actual facts of Washington v. Davis when I think about how easy it is for verbal skills tests to become, in essence, whiteness tests. I mean, hell, there's a reason why segregationists used literacy tests. Now, yes, there does have to be some accommodation to the perfectly legitimate government interest in making sure its people can basically communicate. But guess what? Adult black people tend to communicate with one another pretty well. So if your "verbal skills test" is flunking most of them, maybe that means you're really testing mostly for "ability to talk like a white person," something that probably isn't that necessary for being a Washington, D.C. police officer. And shouldn't that be unconstitutional, even if it was kind of accidental? If we believe that the constitution commits us to racial equality (which we do; see Brown v. Board of Education), and if we believe that it forbids systems of caste, shouldn't it just not be possible to constitutionally set a whole bunch of white dudes to police a large black population?

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.

UPDATE: Attempts to Limit Hobby Lobby Turn Out To Be Gibberish

So my previous post was about how the way Justice Alito distinguishes the contraceptive mandate from other potential health insurance tells us that the real point of his opinion is that he doesn't think it's that important to provide universal access to contraception. Apparently that's not entirely correct. Apparently the Court assumed that the government interest in the case was compelling, and based its decision on the whole "least restrictive means" thing. But this is a problem. RFRA violations are those laws which substantially burden religion and which are not the least restrictive means to further a compelling government interest. Thus, if one thing is a RFRA violation and another isn't, then they must differ in one of three ways: either one of them substantially burdens religion and the other doesn't, or one of them is in furtherance of a compelling interest and the other isn't, or one of them is the least restrictive means to furthering such an interest and the other isn't. It could be all of those three, but it's gotta be at least one of 'em. But if Alito was stipulating the strength of the government's interest, then that can't be the difference. The fact that, in the passage quoted in the previous post, he discussed not the question of the burden on religion but of the government's interest suggests he thinks that vaccine mandates do substantially burden religion, so that can't be the difference. So the difference must be the least-restrictive-means thing, right? Well, wrong. Because as Justice Kennedy points out, the government could just pay for this part itself. That would be less burdensome on the Green family's religion. So would establishing an all-out single payer system where the government just does all of this stuff directly and leaves the employers out of it. And both of those are gonna be there as less restrictive alternatives for all of these mandates, aren't they? Like, the logic is in fact exactly the same, Alito's protestations to the contrary notwithstanding.

So.... it looks like the "legal reasoning" behind limiting this to contraception is basically just bullshit. There is no reasoning. It's narrow because Alito wants it to be narrow, as do Roberts, Kennedy, Scalia, and Thomas. Maybe because they think Congress might actually amend RFRA or something if they issued a broader decision? I dunno. But it seems pretty likely that the only reason why they're treating contraception differently from all other kinds of potential health insurance mandates is that it's suddenly become politically controversial, and/or that they're five old Catholic dudes who have been taught from birth to believe that contraception is sinful. Whatever it is, it ain't law.

Hobby Lobby is About Sex, not Abortion

One of the questions in the Hobby Lobby litigation was whether the exemption sought by these companies could be extended to things other than contraception. Could companies whose owners held somewhat less mainstream religious beliefs decide to stop covering, say, blood transfusions, or vaccines? Could religious "freedom" become a shield for racial discrimination? Nope, says Justice Alito. The ruling is strictly limited to contraception. Other medical things like transfusions or vaccines he essentially said would have to be considered in later cases, and might or might not survive the same test that the contraception mandate failed. And he specifically said that racial discrimination in employment practices cannot find support in this decision, that the government's interest in eradicating that evil is strong enough and direct enough that "religious freedom" is no shield against it.

Kevin Drum comments that the logic behind limiting the decision to contraception seems to be about abortion:

I think it's important to recognize what Alito is saying here. Basically, he's making the case that abortion is unique as a religious issue. If you object to anything else on a religious basis, you're probably out of luck. But if you object to abortion on religious grounds, you will be given every possible consideration. Even if your objection is only related to abortion in the most tenuous imaginable way—as it is here, where IUDs are considered to be abortifacients for highly idiosyncratic doctrinal reasons—it will be treated with the utmost deference.

I don't think that's quite right.

Judicial Review As Legitimation In Action!

One of my favorite arguments that's presented in my grandfather's book The People and the Court, which is a defense of the legitimacy of judicial constitutional review in a democracy, is about the way courts can serve a legitimating function. That is, if there's a law whose constitutionality, and thus legitimacy, is in controversy, having it subjected to rigorous judicial review and then get upheld can settle a lot of doubts about its constitutionality and thus legitimacy. The institution of judicial review, then, should significantly increase the confidence of the people that those laws which are being implemented are in fact constitutional and legitimate. It's a really cool theory. It's also the kind of thing you can imagine not happening in practice. (For example, I don't think very many Republicans were convinced by NFIB that the Affordable Care Act is in fact constitutional, although I know of only one Republican type who has anything particularly clever to say about why John Roberts' tax argument is wrong.)

Well, here's an example of it happening in practice. From Kevin Drum's latest piece about how using the Authorization for the Use of Military Force from just after 9/11 as the legal justification for various War on Terror-related activities isn't really okay anymore:

If Congress wants to give the president that power [of targeted killings of American citizens like al-Awlaki], it should debate and pass a law and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.

Just like that! That's exactly what's supposed to happen. The Court declares it unconstitutional, and people accept it as legitimate. Even if they don't like it, they accept it. Just so!

Of Course Delegation Is Necessary

For the work I'm doing I've been skimming through The Constitution of Empire: Territorial Expansion and American Legal History, by Gary Lawson and Guy Seidman. In particular I'm interested in the discussions, scattered throughout the book, of the Necessary and Proper Clause, which the authors consistently refer to as the "Sweeping Clause." (This is interesting, because Lawson has written a different article in which he argues at great length that the Necessary and Proper Clause is not sweeping, that it in fact borrows certain very specific standards from agency law. Anyway.) In the course of this skimming I came across this passage:

There is no express "Nondelegation Clause" in the Constitution that forbids Congress from delegating legislative power. Neither, however, is there an express "Delegation Clause" that permits Congress to delegate legislative power. The latter conclusion is more important under the principle of enumerated powers. The President and courts generally cannot exercise legislative powers on their own initiative because they are not granted any such powers by the Constitution; they are granted only the "executive Power" and the "judicial Power," respectively. But what if Congress passes a statute that says, in essence, "the President shall exercise legislative power with respect to X." If the President obeys that command, isn't the President simply executing the law in fine Article II fashion? That would be true if the Constitution authorized Congress to pass the relevant law. Congress, however, generally cannot delegate legislative power for the simple reason that the Constitution does not affirmatively authorize such delegations. The only possible source for a general power to delegate would be the Sweeping Clause, but delegations of legislative power are not "necessary and proper for carrying into Execution" federal powers and therefore are not authorized by the Sweeping Clause.

That's a very interesting theory of the Non-Delegation Doctrine, and probably a more plausible one than I've heard before. Except it has a problem, which is the last clause of the paragraph. Who says delegation isn't necessary and proper for carrying the federal powers into execution? Gary Lawson and Guy Seidman, apparently. Now, it's possible that they have some quasi-tautological argument in mind here, that delegation can never be necessary because Congress could've just made the relevant laws itself. If so, well, that's quasi-tautological so there's a limit to how much I can argue with it. But, look, in the modern world, and arguably in any world ever, delegation absolutely is necessary. There's a reason why literally every single modern government, including democracies both presidential and parliamentary, feature massive bureaucracies which exercise considerable delegated lawmaking power. You just can't have the actual national legislature making every tiny little rule. Life is too damn complex and (with good reason) the processes for passing acts of Congress/Parliament are too onerous to be used for that purpose. In practice the only viable alternative to actual legislative delegation is de facto delegation; that is, the adoption of the routine practice of having things that aren't Congress write up laws and have Congress pass them as a matter of course, waiving all the usual procedural hurdles that make that difficult. That's not really very different. One way or another, lots of laws are going to be made through something other than what we think of as the main legislative process. That seems to be, as a matter of practical experience, as absolutely necessary for carrying the powers of government into execution as anything else.

Now, there's also that pesky word "proper." I suppose someone could try to say that delegation of legislative authority is "improper," because delegata potestas non potest delegari. But that doesn't feel like much more than a tautological ipse dixit: X is improper because X is improper. Delegation doesn't seem to violate any express prohibition in the Constitution, as the above quote notes, though I suppose in certain contexts one could try to make out a Due Process violation. Lawson himself has an interesting theory of what the "proper" means, again drawn from his agency theory of the Clause, where it basically means that things the agent (Congress) does must be in the interests of the principal (the people). Under that standard it seems obvious that lots and lots of delegation can be proper, if we accept the conclusion above that it's necessary for having a well-governed regime. Add it all up and I don't really see how, except by simply deciding to read the NDD into the word "proper," one can avoid the conclusion that the Necessary and Proper Clause authorizes a hell of a lot of delegation.