Commenting on Judge Brown's opinion that I talked about in my last post, Professor Kerr also expresses his discomfort with "the propriety of placing such views in the Federal Reporter instead of a law review or published speech." I strongly disagree -- while obviously I disagree with the content of Judge Brown's opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way -- I'd like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.
Opinions of the form "the law is constitutional, but moronic" (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?
But more importantly, these opinions help sap judicial decisions of unwarranted and unintended "moral endorsements" by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how "this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair." Of course, courts often mean to imply none of these things -- the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.
For example, the Affordable Care Act might be perfectly constitutional and an awful, awful idea; it also might be unconstitutional and an entirely salutary and appropriate piece of legislation that nonetheless lies beyond Congress' commerce power. But, particularly if the law is struck down, that's not what we're going to hear from conservative opponents -- they will take the opinion as vindication that the law was an unconscionable socialist usurpation nipped in the bud. If the court wants to send that message, it might as well, but it should take affirmative control of what it is communicating. Judicial silence is not read neutrally -- fairly or not, amongst the public the baseline presumption at the moment is that legal victory means moral approval and legal defeat means moral disapproval. The stronger a norm there is of judges explicitly telling us what they think about the underlying policy merits of a dispute, the less likely we will be to conflate their legal discussion with a policy endorsement.
Or consider the infamous recent case where a Texas school district kicked a cheerleader off the team because she refused to cheer for a man who had assaulted her. The school district won in court; many were outraged by this, as it seemed to condone truly appalling conduct by the District. I argued that the district probably was acting perfectly legally -- but the Court should be clear to indicate its disapproval of conduct in the course of dismissing the suit. This is not just to assure the public that it still retains a conscience. It also has to do with the messages received by the parties -- what they are allowed to "take" from their victory or absorb in their defeat. The last thing we want is the school district thinking its legal victory constitutes any sort of imprimatur for their flatly inhuman conduct. Nor do we want to the message heard by the young woman in question to be "the Judicial Branch of the United States thinks you're a big ol' crybaby." The message we want to put out is that the school district is within its legal authority to act in this way, even though its actions were horrifying and demonstrate an incredible lack of empathy and prioritization that should cause all persons of conscience to question their fitness to serve.
Saturday, April 14, 2012
Strict Scrutiny for All!
George Washington law professor Orin Kerr flags a concurring opinion by two arch-conservative judges on the DC circuit (Brown and Sentelle) urging the Supreme Court to return to a Lochner-style strict-scrutiny review of economic laws. The case is Hettinga v. United States:
I think -- though I'm not sure -- that they're using "cowboy capitalism" as a compliment.
Now, it should come as no surprise that I disagree with this position thoroughly. Lochner remains wrong for the same reasons Justice Holmes told us Lochner was wrong. And the story Judge Brown tells about the "political process", though not wrong on face, is both inconsistent and can't support the jurisprudential shift she's advocating.
Judge Brown's critique is basically the indictment of Carolene Products that has been in the mix since at least Bruce Ackerman's Beyond Carolene Products article in the 1980s. The idea is that small, discrete, insular groups are at an advantage in the political process because they are easier to mobilize and can overcome collective action problems. So, for example, even though there are far more milk consumers than milk producers in America, milk producers are at an advantage because they are easier to organize and have a far greater relative stake in milk laws than the diffuse and diverse community of milk "consumers". In this way, law can be and often is subject to capture by these "special interests".
There are at least two responses to this. The first is that, though this does challenge Madison's vision of factions checking factions in Federalist #10, it does not defeat it entirely. Madison may have been wrong that the majority faction always wins. But widespread fracturing may still serve a useful purpose, because it can pit small, discrete factions against each other, thus dissipating their influence. The debate over SOPA, for example, pitted not a "special interest" versus "the people". Rather, there were small factions on both sides -- content providers like the RIAA going against content distributors like Google. In that circumstance, worries about pure capture seem overblown.
But second, even if Judge Brown may well be right that most economic legislation is a series of interest group power plays, her critique tackles our democratic system in general. There's nothing really unique about economic legislation with respect to her concerns. Political ignorance is not just restricted to economic redistribution; it applies across the board. Democracy always is in a weak position to "right itself" with respect to a (potentially mythical) "common good". We are stuck in a system of pluralistic interest-group bargaining, whether we like it or not.
Hence, Judge Brown argument doesn't support strict scrutiny for economic regulation -- it supports strict scrutiny for every law Congress passes. Which may cause my libertarian friends to swoon, but which seems largely incompatible with the supposedly limited role for the judiciary as subservient to the will of the people (imperfect as it may be). And it's notable that even that stance doesn't actually fix the "problem" Judge Brown purports to be tackling, because Congress' decisions not to regulate this or that area is subject to the same interest-group pressures as their decision to regulate (as usual, activity and inactivity is not really any distinction at all). At any rate, there is no evidence that Judge Brown intends to take such a bold position -- strict scrutiny for laws prohibiting gay marriage (and laws which support it), strict scrutiny for affirmative action and for banning it, strict scrutiny for anything and everything.
What's needed is a theory for when heightened judicial solicitude is appropriate. Carolene Products attempts to provide one, but its vulnerabilities are well-taken. But that's why most modern reconstructions of Carolene focus not on "discrete" or "insular" or "minorities", but on "prejudice". This was the one element of Carolene that Ackerman did not have a solid objection to, and it's particularly important in the pluralist interest-group bargaining model because it shows why certain groups or interests may be unable to even "play the game". In essence, public choice theory tells us that being Black in America should have historically been awesome -- they're a discrete, insular minority, they should have been cleaning up in the democratic process. Why didn't they? Because prejudice against them prevented them from even participating equally in the interest-group game. They were pariahs -- it was politically helpful to hurt them and politically deadly to help them.
No true parallel exists for economic regulation. Business interests have shown no incapacity to participate in the democratic process in pursuit of their interests. Obviously no particular business wins all the time, but neither do there seem to be systematic losers placed in the subordinate position because they're simply disliked.
Judge Brown doesn't promote any such theory. What she does have is an aria in praise of free market capitalism. But regrettably, the Constitution still doesn't enact Mr. Herbert Spencer's Social Statics. There is nothing in the Constitution that even presumes free market capitalism leads to the common good. Nor, for that matter, is there anything in the Constitution that presumes that the choices a free democratic society makes will be in pursuit of the common good, though the hope that it does I think is implicit in it.
Indeed, "common good" may be chimerical altogether. All Judge Brown is doing is redistributing the results of the interest-group game away from some and in favor of others more to her political tastes. But neither the Constitution, nor democratic theory, makes any provision for this. It's pure policy, nothing more.
(I have a second post going up dealing with a different part of Kerr's post -- where he questions the propriety of Judge Brown even writing an opinion like this -- which you can find here. While I disagree with the content of Judge Brown's concurrence, opinions of this type I think are quite valuable, for reasons I explain in-post.).
UPDATE: I respond to Professor Barnett's reply in a new post here.
America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even mprovident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .
The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.
I think -- though I'm not sure -- that they're using "cowboy capitalism" as a compliment.
Now, it should come as no surprise that I disagree with this position thoroughly. Lochner remains wrong for the same reasons Justice Holmes told us Lochner was wrong. And the story Judge Brown tells about the "political process", though not wrong on face, is both inconsistent and can't support the jurisprudential shift she's advocating.
Judge Brown's critique is basically the indictment of Carolene Products that has been in the mix since at least Bruce Ackerman's Beyond Carolene Products article in the 1980s. The idea is that small, discrete, insular groups are at an advantage in the political process because they are easier to mobilize and can overcome collective action problems. So, for example, even though there are far more milk consumers than milk producers in America, milk producers are at an advantage because they are easier to organize and have a far greater relative stake in milk laws than the diffuse and diverse community of milk "consumers". In this way, law can be and often is subject to capture by these "special interests".
There are at least two responses to this. The first is that, though this does challenge Madison's vision of factions checking factions in Federalist #10, it does not defeat it entirely. Madison may have been wrong that the majority faction always wins. But widespread fracturing may still serve a useful purpose, because it can pit small, discrete factions against each other, thus dissipating their influence. The debate over SOPA, for example, pitted not a "special interest" versus "the people". Rather, there were small factions on both sides -- content providers like the RIAA going against content distributors like Google. In that circumstance, worries about pure capture seem overblown.
But second, even if Judge Brown may well be right that most economic legislation is a series of interest group power plays, her critique tackles our democratic system in general. There's nothing really unique about economic legislation with respect to her concerns. Political ignorance is not just restricted to economic redistribution; it applies across the board. Democracy always is in a weak position to "right itself" with respect to a (potentially mythical) "common good". We are stuck in a system of pluralistic interest-group bargaining, whether we like it or not.
Hence, Judge Brown argument doesn't support strict scrutiny for economic regulation -- it supports strict scrutiny for every law Congress passes. Which may cause my libertarian friends to swoon, but which seems largely incompatible with the supposedly limited role for the judiciary as subservient to the will of the people (imperfect as it may be). And it's notable that even that stance doesn't actually fix the "problem" Judge Brown purports to be tackling, because Congress' decisions not to regulate this or that area is subject to the same interest-group pressures as their decision to regulate (as usual, activity and inactivity is not really any distinction at all). At any rate, there is no evidence that Judge Brown intends to take such a bold position -- strict scrutiny for laws prohibiting gay marriage (and laws which support it), strict scrutiny for affirmative action and for banning it, strict scrutiny for anything and everything.
What's needed is a theory for when heightened judicial solicitude is appropriate. Carolene Products attempts to provide one, but its vulnerabilities are well-taken. But that's why most modern reconstructions of Carolene focus not on "discrete" or "insular" or "minorities", but on "prejudice". This was the one element of Carolene that Ackerman did not have a solid objection to, and it's particularly important in the pluralist interest-group bargaining model because it shows why certain groups or interests may be unable to even "play the game". In essence, public choice theory tells us that being Black in America should have historically been awesome -- they're a discrete, insular minority, they should have been cleaning up in the democratic process. Why didn't they? Because prejudice against them prevented them from even participating equally in the interest-group game. They were pariahs -- it was politically helpful to hurt them and politically deadly to help them.
No true parallel exists for economic regulation. Business interests have shown no incapacity to participate in the democratic process in pursuit of their interests. Obviously no particular business wins all the time, but neither do there seem to be systematic losers placed in the subordinate position because they're simply disliked.
Judge Brown doesn't promote any such theory. What she does have is an aria in praise of free market capitalism. But regrettably, the Constitution still doesn't enact Mr. Herbert Spencer's Social Statics. There is nothing in the Constitution that even presumes free market capitalism leads to the common good. Nor, for that matter, is there anything in the Constitution that presumes that the choices a free democratic society makes will be in pursuit of the common good, though the hope that it does I think is implicit in it.
Indeed, "common good" may be chimerical altogether. All Judge Brown is doing is redistributing the results of the interest-group game away from some and in favor of others more to her political tastes. But neither the Constitution, nor democratic theory, makes any provision for this. It's pure policy, nothing more.
(I have a second post going up dealing with a different part of Kerr's post -- where he questions the propriety of Judge Brown even writing an opinion like this -- which you can find here. While I disagree with the content of Judge Brown's concurrence, opinions of this type I think are quite valuable, for reasons I explain in-post.).
UPDATE: I respond to Professor Barnett's reply in a new post here.
Friday, April 13, 2012
Throw the Jew Down the Well!
A Pennsylvania state Republican conference is in hot water after a band playing at the event started spouting lyrics like "We’re fighting the corruption of the Jewish banks but when the Jews come to feed us, we always say thanks."
The band apparently was trying to satirize the Occupy Wall Street movement which ... I dunno, maybe? That the OWS is targeting "Jewish banks" is little more than a smear, but it's one I've heard of so it makes sense that it'd appear inthe fever swamp a respected gathering of Pennsylvania Republicans. But that second part refers to ... what exactly? Jewish philanthropy? Prominent Jewish membership and in support for OWS? I have no idea.
The band apparently was trying to satirize the Occupy Wall Street movement which ... I dunno, maybe? That the OWS is targeting "Jewish banks" is little more than a smear, but it's one I've heard of so it makes sense that it'd appear in
Booker Saves the Day
How does a rising superstar mayor who already has uncountable superlatives attached to his name up the ante? By rescuing a woman from a burning building, Spiderman-style.
UPDATE: Vermont Governor Peter Shumlin (D) tries to imitate by attempting to chase off four bears raiding his property, but was unsuccessful (and nearly devoured).
No, I'm not making any of that update up.
UPDATE: Vermont Governor Peter Shumlin (D) tries to imitate by attempting to chase off four bears raiding his property, but was unsuccessful (and nearly devoured).
No, I'm not making any of that update up.
Wednesday, April 11, 2012
I Have in My Hand....
Rep. Allen West (R-FL) claims that "he's heard" up to 80 U.S. House Democrats are Communist Party members. Naturally, he wouldn't name names.
So let me talk about some of the things I've "heard" about Rep. West. He was forced out of the Army after abusing a bound detainee. He's urged top military officials to resign rather than follow the President's orders. He considers Islam the enemy. He says the President is a "low-level socialist agitator" and that Rep. Debbie Wasserman-Schulz (D-FL) is "not a Lady, therefore, shall not be afforded due respect from me!" And he thinks Blacks are being kept on a modern-day "plantation" by the Democratic Party.
The difference is that, unlike Rep. West, I can back up what I've heard.
So let me talk about some of the things I've "heard" about Rep. West. He was forced out of the Army after abusing a bound detainee. He's urged top military officials to resign rather than follow the President's orders. He considers Islam the enemy. He says the President is a "low-level socialist agitator" and that Rep. Debbie Wasserman-Schulz (D-FL) is "not a Lady, therefore, shall not be afforded due respect from me!" And he thinks Blacks are being kept on a modern-day "plantation" by the Democratic Party.
The difference is that, unlike Rep. West, I can back up what I've heard.
Tuesday, April 10, 2012
Publication Announcement
I am pleased to announce that my essay, The Perils and Promise of the Holder Memo, has been published in 2012 Cardozo L. Rev. de novo 187. You can read the whole symposium, entitled DOMA after the Holder Memo, at the Cardozo Law Review website.
My thanks to the hard work from the Cardozo editors, and congratulations to them on putting out a great issue!
My thanks to the hard work from the Cardozo editors, and congratulations to them on putting out a great issue!
Monday, April 09, 2012
Palestinian Group "Evicts" Jewish Students
A pro-Palestinian student group at Florida Atlantic University sent mock eviction notices to 200 FAU Jewish students, allegedly as a commentary on Palestinian home demolitions Israel has undertaken over the past several decades. The notices were apparently close enough to the real thing (including the unauthorized use of the FAU housing department's official stamp) to fool some of the students into thinking they were actually being evicted, and FAU is opening an investigation into the incident (which also may have violated the law). The flyers were distributed on the first night of Passover.
And, since it might have skated by -- these notices apparently targeted Jewish students. Not Israeli students, not "pro-Israel" students, but Jewish students.
Not that it matters. In the eyes of some, so long as there is an Israel whose policies can be opposed, Jews don't have any rights to speak of. It's "opposing Israeli policies", and so it's all good.
UPDATE: Further reporting indicates that Jewish students were not specifically targeted.
And, since it might have skated by -- these notices apparently targeted Jewish students. Not Israeli students, not "pro-Israel" students, but Jewish students.
Not that it matters. In the eyes of some, so long as there is an Israel whose policies can be opposed, Jews don't have any rights to speak of. It's "opposing Israeli policies", and so it's all good.
UPDATE: Further reporting indicates that Jewish students were not specifically targeted.
Subscribe to:
Posts (Atom)
