Tuesday, May 6, 2014

Making Sense of Schuette; or, it might be time to give back the 14th Amendment

In the wake of Grutter v. Bollinger, Michigan voters approved Proposal 2, a measure designed to prohibit the use of race in admission to state universities.  It stood to reason that the Roberts Court would uphold this proposal, and so it did, in the recent Schuette v. BAMN.  According to the plurality opinion, authored by Justice Kennedy, this case involved a fundamental right held "by all in common:" "the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process."

I wonder what he means by that.  Assume that citizens of the state of Michigan return to the polls ten years from now and reverse Proposal 2.  Assume, that is, that they continue todebate, learn, and act once again through a lawful process.  What if the citizenry takes it further and in fact demands that state universities take race into account during their admissions processes?  What would the plurality say then?

This is when our bizarre constitutional world kicks in.  Opponents of race conscious policies can eliminate these policies through the political process and the Court stands aside.  Were supporters of these policies able to overturn this outcome through the same political process, the Court will be ready to stand in their way, in the name of constitutional justice.

This is a  perverse constitutional world.  If this is what the 14th Amendment demands in fact, it must be time to give the Amendment back.

How does anyone committed to an originalist jurisprudence make sense of this?

Better question: is there anybody left in the world who believes that our race jurisprudence is guided by law and not ideology and the justices' personal preferences?

Wednesday, April 2, 2014

A word on McCutcheon and the Court that Politics has Given Us

The U.S. Supreme court issued this morning its long-awaited opinion in McCutcheon v. Federal Election Commission.  The result surprised no one.  Under federal law, an individual could could give $5,200 to a candidate over a two-year election cycle, yet no more than $48,600 as a whole.  This meant than an individual could give to only 9 candidates in order to comply with the law.  Similarly, federal law imposed an "aggregate limit" of $74,600 on contributions to all political parties and political action committees.

No longer.

In a 5-4 decision, the Court struck down these "aggregate limits" as unconstitutional under the First Amendment.  In an opinion authored by Chief Justice Roberts, the Court could find no governmental interest that would justify these aggregate limits.

Commentators will have a lot to say about this case, even though there is very little new here.  We have seen this before.  The money line comes from Justice Breyer's dissent, right at the end:
The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.
Tell me if you haven't seen this before. The template could not be any clearer. This is Shelby County redux.  Remember how in Shelby County, the Court essentially substituted its views about racial discrimination in voting for the record compiled by Congress, a record with which it refused to engage?  Remember also how Shelby County bootstrapped arguments made in dictum in a prior case -- Namudno v. Holder -- and then passed them along as settled law?  Remember also how Shelby County overturned key precedents while pretending to do no such thing?  And finally, who could forget that Shelby County undermined -- nay, devastated -- the crown jewel of the civil rights movement?

Every time I read one of the doozies from the Roberts Court, I am reminded of Philip Kurland snarky yet paradoxically delightful Harvard foreword, published in 1964.  The closing is remarkable in many ways. Take a look:
The time has probably not yet come for an avowal that, in the field of public law, "judicial power" does not describe a different function but only a different forum and that the subject of constitutional law should be turned back to the political scientists. These students of political affairs realized, before lawyers did, that the true measure of the Court's work is quantitative and not qualitative. The Court will continue to play the role of the omniscient and strive toward omnipotence. And the law reviews will continue to play the game of evaluating the Court's work in light of the fictions of the law, legal reasoning, and legal history rather than deal with the realities of politics and statesmanship.
I wonder what Kurland -- the preeminent conservative critic of the Warren Court -- would say about the Roberts Court.  We have an idea.  When he testified during the Bork hearings, he said the following about stare decisis:  "But once the Court has rendered its decision, I think that the fact that it is based on erroneous reasoning or poor precedent or doctrine does not in any way make it an invalid, unconstitutional or reversible opinion for that reason." The Roberts majority has decidedly different ideas.

In the meantime, the law reviews will continue to pretend that there is a legal logic to all of this, and that the conservative majority is playing by the rules laid down.  But there is clearly a much different story at play.  This is not law as reasoned elaboration, but law as power.  This is Thrasymachus, not Socrates.

Whatever happened to judicial restraint and the famed countermajoritarian difficulty?

I am being facetious, of course.  Here's what happened: critics of the Warren Court won elections, took over the Court, and are now reaping the benefits.  Judicial restraint plays no role in this story.  Not that there's anything wrong with that.  But at least let's call it what it is.

This leaves me with two questions.  The first looks to the recent past, and particularly to the 2000 Election. For those who thought that Bush and Gore were one and the same, I wonder what they think about the Roberts Court.

The second question is for the Court's cheerleaders, those who find themselves today on the right side of 4.  Do they really believe that they are fighting, as Randy Barnett wrote, "to save the Constitution for our country?"  Do they really believe, as Jim Bopp wrote in a press release after the McCutcheon, that the ruling is "a great triumph for the First Amendment"?

Better question: had these great champions of the Constitution been around in 1964, what would they have said then?

We can only wonder.

Thursday, February 27, 2014

Gobbledegook Scholarship

The law review process is a bit -- how to say this politely -- unorthodox.  Students with no expertise in the issues at hand make editorial decisions on articles that they may not even understand.  Defending this process is not easy.  It is an accident of history and not much more. 

The question is whether the alternative is any better.  Here's an example: three MIT graduate students created a computer program to write gobbledegook and pass it as scholarship.  Academic conferences proceeded to accept the papers.  And academic presses in fact published them.

I'll be sure to show this piece to my smug friends on the other side of campus.  I might even direct them to the software itself, which available for free online.

Wednesday, February 26, 2014

There He Goes Again . . .

The Savannah, Georgia of the late 1950's and early 1960's was a cauldron of Black political activism. Many organizations, from the Southern Christian Leadership Conference and the NAACP to the Chatham County Crusade for Voters led voter registration drives, economic boycotts, and demonstrations against segregated public facilities.  In 1963 alone, Blacks in Savannah had mass meetings every Sunday in order to drum up support for the movement. On July, 12, 1963, tensions erupted and 2000 Black demonstrators were scattered with tear gas and water hoses. In 1965, during the voting rights march from Selma to Montgomery, 650 Blacks in Savannah held their own march as a show of solidarity.

It is clear to anyone paying attention that Savannah, Georgia played host to a very rich and very active civil rights community.

Not so, however, to Justice Thomas. As he recently told an audience at Palm Beach Atlantic University in West Palm Beach, Fla,
'My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school. To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up,' 
We could try to make sense of what, at first blush, makes no sense.  Dahlia Lithwick writes, for example, that 
Maybe the issue never came up because color simply determined everything: where you could sip water, where you could swim, where you could go to school, which doctors you could see, which gas stations would allow you to use their restrooms. Maybe there was a lot less to talk about, not because nobody noticed racial differences but because the legal regime crafted to perpetuate those differences was omnipresent and seemingly impregnable.
But that's far too charitable.  The question for anyone living through these tumultuous times is not whether the race issue ever came up.  Rather, the question is how anyone could live through the Savannah, Georgia of the 1960's and remain unaware of the social and political revolution brewing.  

This is the same man who could confidently say that there is no longer a need for the Voting Rights Act.  We have a right to wonder, in light of these recent comments, how he knows this.

Thursday, June 28, 2012

Reflections on Roberts' Healthcare Opinion

As many know, the Supreme Court's eagerly anticipated healthcare decision came down this morning.  Chief Justice Roberts wrote the majority opinion, though he did not have a majority for every proposition.  My bottom line is that this opinion is a slam dunk win for the liberals and a work of craftsmanship if not statesmanship by Chief Justice Roberts.

  1. Though many are reporting that the Court gutted commerce clause doctrine, see, e.g., this article on Slate, I disagree with that view for two reasons.  First, Roberts' opinion on the commerce clause does not in any way change existing commerce clause doctrine.  Wickard v. Filburn, which is considered to be one of the most if not the most expansive understanding of federal commerce power, is cited approvingly by CJ Roberts.  No important (or unimportant) commerce clause cases were overturned by CJ Roberts today. One can read this case to say that five Justices believe that there are limits on Congress' power under the commerce clause.  That is true. But the current commerce clause doctrine is in fact quite broad.  With the exception of the individual mandate, which is very much sui generis, there is very little that Congress would want to do that it cannot do under the commerce power.  You can view the commerce power fight as a fight among those who believe that Congress can do anything under the commerce power, those who believe that Congress can do almost anything, and those who believe that there are real substantive limits on Congress' power.  CJ Roberts' opinion in the middle category. So, in reality, (given that the Court upheld the individual mandate), the liberals did not lose much, if anything.  I can't think of any federal law that is in jeopardy as a consequence of the Chief's opinion. If this case stands for the idea that Congress can regulate activity  but not inactivity, it will not do much damage to commerce clause jurisprudence. (One might argue that Roberts narrowed the necessary and proper clause; but to the extent that he did, the necessary and proper analysis is predicated on the scope of the substantive commerce power.  Given that the scope of the commerce power remains quite broad, the narrowing is, at this time, limited.)
  2. Second, Roberts was writing for himself in that part of the opinion.  The dissenters declined to join his opinion. So everything written on the commerce clause is just Roberts' view and not that of the majority of the Court.  Further, I don't think that that part of the opinion was necessary to the holding (though Roberts says otherwise, but he is not very persuasive on that point.)  So, I don't think there is a commerce clause holding. (Candor compels me to admit that there is a split among some of my colleagues on this point.)  (And of course, even if there is a commerce clause holding, see point 1 above).
  3. While the liberals lost nothing under the commerce power, they gained under the Taxing power.  In an opinion for the Court, joined by the four liberals, the Chief made it clear that just because Congress does not have the power under the commerce power does not also mean that it is disabled under the taxing power.  The Court noted that Congress' taxing power is greater than its commerce power, which is quite broad as we established above. Congress can use the taxing power to stimulate behavior and encourage activity.  This is a big win for the liberals here.
  4. In Part IV of this opinion, which is joined by Justices Breyer and Kagan, narrowed the Medicaid portion of the Act, holding that the Medicaid provision as written is coercive.  CJ Roberts ruled that Congress cannot remove all of the state's medicaid funding for failing to comply with the ACA's medicaid funding requirement.  This is not much of a restriction on Congress' power. Congress can still impose conditions spending on the expenditure of federal funds.  Congress can modify conditions on existing programs.  What Congress cannot do is threaten to terminate funding on other significant independent grants.  That's unconstitutional coercion.  This is not a significant limitation on the spending power and even Breyer and Kagan were happy to go along with it.
  5. Roberts ought to get points for craftsmanship and statesmanship.  The opinion is clearly and sometimes beautifully written.  It is deft (and deceiving) in many places.  It is not too heady to say in places the opinion reminds me on John Marshall's astuteness, except that Roberts is a better writer.
  6. Roberts should also get credit for being a statesman.  This opinion preserves some important legitimacy for the Court.
  7. Conservatives will spin this case, but they lost today.  There was no significant modification of the commerce power. The ACA was upheld essentially intact.  Congress' taxing power was expanded.  The spending power survived without any significant modification. Conservatives were worried about Kennedy, but it was John Roberts who delivered the crucial and painful blow.   Conservatives had four solid votes to strike down the entire ACA.  This is a big lost for them.  When you combine the healthcare decision with the immigration decision decided on Monday, it was not a good week to be a conservative.

Monday, April 2, 2012

Wondering about the Success of Kentucky Basketball, Race, and What Ifs. . .

It is that time of year again: March Madness is back.  Tonight, Kansas plays Kentucky for the national championship.  Yet something about the game makes me uneasy.  The feeling of unease began during the Kentucky-Louisville game last Saturday night.  There were many possible reasons.  For example: seeing Coach Calipari on the sidelines, he of the vacated records at UMass and Memphis; associating the University of Kentucky with the new one-and-done trend in college basketball; the hypocrisy of keeping student-athletes out of class for as long as they do during March in search of glory and money.  But it wasn't any of that.

Instead, it had something to do with race.

There is something jarring about Kentucky basketball.  Watching the game Saturday night, one could not help but admire the skills and athleticism of the players on the court.  I loved watching Marquis Teague, whom I saw playing in high school and who has grown immeasurably since January; Anthony Davis, who happens to be the second freshman to ever win the Naismith award as college player of the year; and Michael Kidd-Gilchrist, slated by some experts as a top-five pick in the upcoming NBA draft. These are three of the four freshmen who joined the team this past year.  The sophomore class includes Terrence Jones and Doron Lamb, also expected to be drafted in the first round.  Incidentally, these players all happen to be black.

Here's what bothered me: quite often, CBS would turn to the crowd after a great play, perhaps after a time out.  And not once did I see one Black face in the stands rooting for Kentucky.  This is not to say that Kentucky basketball does not have any Black fans; I am sure it does.  Rather, the point is that Kentucky's fan base is overwhelmingly white, while its basketball players are overwhelmingly Black.  Hence my unease.

Without question, Kentucky basketball has now become the sexy destination for elite basketball players.  Yet I cannot help but wonder about the politics -- racial or otherwise -- of the fans as compared to the politics of the players.  I also wonder about college admissions and whether these players would be accepted at institutions such as the University of Kentucky without their basketball skills.  I wonder where these fans stand on affirmative action and the upcoming Fischer case.  For those then alive, I wonder about their thoughts about Black players before 1969, the year when Kentucky basketball first integrated.  I just wonder.

And here's what I really wonder about: what if all these one-and-done players, the Anthony Davis' and the Kidd-Gilchrist's, decided to play together not at the white University of Kentucky, but at a historically black college, or even at the University of Detroit or Wayne State University? What would such a decision do for the city of Detroit, or for historically-Black colleges in general?

That is my dream.

Saturday, March 24, 2012

Op-Ed on the Constitutionality of the Affordable Care Act

My op-ed in The Palm Beach Post arguing that the Affordable Care Act (or "Obamacare" as everyone likes to call it) is constitutional is available here.  Elizabeth Price Foley of FIU College of Law wrote a competing op-ed, arguing that the Act is unconstitutional, available here.  Enjoy!