Leaving the Mess for Later

One thing that's come up in a few of the Supreme Court's recent blockbuster decisions is the shakiness of the fact pattern in the underlying case. Mr. Kennedy in Kennedy v. Bremerton School District wasn't really just an average citizen whose desire to privately pray on his own was stymied by the evil liberal school district. Ms. Smith of 303 Creative v. Elenis might have outright falsified documents suggesting that a gay couple asked to engage her services. The Supreme Court's conservative majority did not care, blitzing ahead in decisions that made dramatic alterations to major areas of constitutional law doctrine.

At one level, I actually understand the perspective here. When it comes to abstract, "philosophical" question regarding the scope of the Establishment Clause or whether anti-discrimination law must sometimes yield to free speech commitments, the details of the individual case don't really matter. If it wasn't Kennedy, it'd be someone else. If what you care about is the broad, sweeping change -- interring Lemon v. Kurtzman for good, or laying a marker that public accommodations laws must yield to businesses' right to "expressively" discriminate -- the details don't affect the underlying arguments all that much. The same claims and counterclaims that would be made in any case would be aired here. 303 Creative probably already felt like the can that was kicked down the road from Masterpiece Cakeshop. Similar impatience was seen in some of the concurrences in Fulton v. City of Philadelphia -- we know we're going to have to decide whether to revisit Employment Division of Oregon v. Smith, and we know the arguments for and against preserving the precedent, so why delay the inevitable? Just make the decision one way or the other and get it done.

At another level, though, this speaks to how the current conservative judicial cadre really doesn't care about the formalities of law and legal doctrine. It's movement conservatism through and through -- the important thing is the bottom-line results, and the Court will shoot first and let others clean up the mess later. This especially stood out for me in 303 Creative, a case where it was striking how much more legalistic Justice Sotomayor's dissent was compared to Justice Gorsuch's majority opinion. The former, whether one agrees with the result or not, worked through the relevant First Amendment doctrine via the same methodology I'd teach my students -- explaining the relevant doctrinal framework, explaining why this case falls into a particular part of the framework, and explaining the implications thereof. The majority opinion was basically an abstract ode to the importance of free expression but skipped past significant swaths of the seemingly essential legal analysis (often by vague gestures at party "stipulations" or just treating as gospel certain holdings of the Tenth Circuit). It was hard to escape the sense that the nitty-gritty details of Lorie Smith's case were not at all what interested the majority, and so they were disinclined to spend significant time on them. They wanted to make a big statement about the interplay of free speech and anti-discrimination law, so that's where they devoted their attention. 

From that vantage, the fact that Lorie Smith's case may not have been the cleanest vehicle isn't really all that important. Of course, from the vantage of lower courts trying to figure out what the hell 303 Creative actually means, it's extremely important, because nobody actually knows the concrete rule that 303 Creative is actually establishing, and the blurry fact pattern means that trying to infer it from Lorie Smith's situation is a doomed initiative. But again, that's someone else's mess to deal with. I honestly believe that the Justices in the 303 Creative majority did not care if Lorie Smith, personally, deserves the exemption from anti-discrimination law under the doctrine that will eventually lay out. What they cared about is being decisive in defending the existing of these exemptions in concept. Lorie Smith just had the good fortune to be the next case in line that could be plucked onto the docket.

I've written before of the Machiavellian character of the current Supreme Court, specifically, it's absorption of Machiavelli's advice to tyrants: that they should take their big oppressive swings early, in full force, and all at once. You won't gain any advantage from dragging things out, and you'll probably get credit if you cut back later. And the repeated pattern we've seen is of the Court taking these huge right-wing swings that delight conservatives on the level of ideology, but without much care for how they can be operationalized as a workable legal doctrine, and leaving it lower courts to clean up its mess. And to give an inch of silver lining, there is the chance (this follows from Machiavelli too) that as that "mess" resolves itself the Court will then quietly file down some of the roughest edges. The Bruen decision, which reads as a right-wing ideological fantasy document but which has unleashed utter chaos in lower courts, may be an example if the Court uses the Rahimi case to cut back the most extreme interpretations. Take the big swing, make the chest-out assertion of insisting that no amount of public necessity can weigh against robo-originalism, and then later on at their discretion maybe pick and choose a few morsels to dial back on and claw back some legitimacy.

But nonetheless, it really is striking the degree to which the conservative legal movement just no longer cares that much about the law. As a law professor, it makes for depressing teaching. As a citizen, it makes for depressing living. Just depression all around.

Could RFK Jr. Succeed as a Republican?

[Patrick Semansky / AP]

The utterly unsurprising news that the majority of Robert F. Kennedy Jr.'s major financial backers are dyed-in-the-wool Republicans, and that his "surging" poll numbers are being driven primarily by newfound love from Republican voters, makes me wonder: how would he fare if he actually ran as a Republican?

Obviously, on the issues he's a much closer match to the GOP these days. The anti-vaxx paranoia and overall conspiracy mindset goes without saying. His foreign policy stances are called "tankie" when they're nominally coming from the left, but if you're a Republican they're just bog-standard "isolationist" Putin-worship. Even some of his seemingly more "progressive" government spending ideas could easily be folded into a MAGA-style "build baby build" argument; the same goes for his railings against big business vis-a-vis a Josh Hawley style of politics (it's all easier once you remember that all of these positions -- whether held by Kennedy or Trump or Hawley -- are all vibes, no content, so it's no struggle to assimilate them into a new host).

And symbolically, I think he has a lot to offer to the GOP. It's not just the high-profile "defector" thing (as absurd as that label is to apply to someone like Kennedy). He also -- again, symbolically, not substantively -- harkens back to "my granddaddy's Democratic Party", feeding into the larger grievance narrative of older White voters who retain some nostalgia for the mid-20th century glory days but are convinced that "the party left them". And even in presentation, Kennedy has some Trumpian vibes: the superficial visage of power and influence, paired with the superficial visage of being a "rebel" who's standing up to his own "class" (I can't keep repeating that this is all nonsense, but nonsense is very appealing to GOP primary voters).

Do I think he could oust Trump? No, because I don't think anybody can oust Trump in a GOP primary. Do I think he could become a serious player -- more so than the shooting star crashing meteor that is Ron DeSantis? Absolutely. And as, for example, a Trump VP pick, RFK Jr. makes an alarming amount of sense. The biggest question might be whether the delusions that prompted Kennedy to run in the first place will obscure the greener grass that awaits him on the GOP side of the fence; because otherwise going GOP seems like the obvious play for him.

Debate Me, You Cowards

The other day, the Wisconsin Supreme Court (two weeks away from Janet Protasiewicz taking her seat on the bench and flipping the court's 4-3 majority) denied a request by the Wisconsin Bar to create a CLE category for DEIA (diversity, equity, inclusion, and access) credit. "DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias."

The court's denial, joined by the conservative faction, was a short per curiam opinion. The liberal coalition's dissent was likewise short, focusing on the Court declining to give the matter even a hearing which, under the Court's standard rules, should have been offered assuming the petition had "arguable merit". Since many states have DEI CLE credit akin to what the Bar was proposing in Wisconsin, the petition clearly had at least "arguable merit" and should have gotten a hearing.

(Underneath all of this is the imminent change in the Court's partisan composition. Scheduling a hearing would have pushed the decision back past the point where Judge Protasiewicz will join the court; a factor which no doubt encouraged the majority to try and slam through this lame-duck decision without giving it normal consideration. It also seems highly likely that the new majority will revisit the question in the near future).

However, aside from the short per curiam, and the short dissent, there was a very not-short concurrence from Justice Rebecca Grassl Bradley* (last seen engaging in election-denierism while comparing the use of ballot drop boxes to North Korean autocracy). The concurrence is little more than a Townhall-style rant against the dangers of diversity initiatives. It is replete with bitter buzzwords more commonly found in the recesses of social media: claiming that the "very point of mandating DEIA CLE would be to create a 'goose-stepping brigade[]' of attorneys," accusing the Bar of trying to "virtue signal, and railing against "the predictable and petty slanders of the cancel culture crowd." She even contorts the unanimous support of the Wisconsin Bar for this initiative as illustrative of a "grave illness in our society" that can only be explained by the way DEI supporters "demoniz[e] dissenters."

There's more in that vein, all bolstered by a bevy of citations to a range of right-wing shock jocks. But I don't want to parse Justice Bradley's concurrence. Rather, I want to flag how the dissent addresses it -- or rather, quite consciously declined to address it -- in its concluding footnote:

I choose not to respond to the substance of the concurrence, which is hostile, divisive, and disrespectful. This political rhetoric has no place in an order of the court. We should instead engage earnestly with opposing perspectives by granting a hearing on the petition, which is what our ordinary process requires.

Perfectly appropriate under the circumstances. Not only was Justice Bradley's concurrence not worth the dissent's time, it's not germane to the dissent's point; namely, that if these debates are to be had, they should occur through the normal process of granting a hearing and engaging earnestly with the various perspectives on the issue.

And that mature response by the dissent caused an already rage-filled Justice Bradley to truly go ballistic:

Proving well that many proponents of DEIA orthodoxy demonize its critics, the dissenting justices "choose not to respond" to this concurrence, instead dismissing it with a headline-grabbing caricature as "hostile, divisive, and disrespectful" "political rhetoric[.]" Dissent, ¶46 n.4. This concurrence cites more than a dozen United States Supreme Court decisions, multiple state supreme court decisions, Frederick Douglass, Martin Luther King Jr., Thurgood Marshall, Clarence Thomas, James Madison, Montesquieu, and at least an additional dozen legal scholars, authors, and professors. Of course, the real reason for the dissenters' refusal to engage with the substance of an opinion spanning more than 30 pages is the imminent change in court membership. The new majority will reverse this court's order at its first opportunity.

The dissenters borrow a rhetorical tactic from the modern political sphere increasingly employed by justices of this court in lieu of legal argument. See, e.g., Jane Doe 4 v. Madison Metro. Sch. Dist., Nos. 2022AP2042, 2023AP305 & 2023AP306, unpublished order, at 3 n.1 (Wis. May 19 2023, amended June 14, 2023) (Hagedorn, J., concurring) ("I also do not respond to this supplemental writing because of its abandonment of basic judicial decorum."). When lawyers decline to respond to legal arguments advanced in a case, the court considers the point conceded.

If ever there was a time for applying "I'm not mad" to a legal opinion, this is it. Note, incidentally, the final shot at Justice Hagedorn, who is actually a member of the Court's conservative faction but has generally refrained from joining the more fever-like portions of the Court's analysis (he didn't join Bradley's concurrence, for instance, though he joined the majority here). As is so often the case, the most immediate targets of conservative legal grievance posturing in defense of "ideological diversity" are other conservatives who don't want to engage in conservative legal grievance posturing.

In any event, it's tough to imagine a better example of conservative legal grievance culture than writing a 30-page 4chan post accusing the other side of being dishonest, virtue-signaling goose-steppers and then stomping your feet with "debate me, cowards!" (and accusing them of "demonization") when your colleagues don't deign to jump in the mud pit with you.

As I've written before, the Wisconsin Supreme Court has been a national embarrassment for years, and Justice Bradley certainly has played a large role in that. One can only hope that the new majority will restore some desperately-needed sanity and decorum to the circus-show.

* There are actually two Justice Bradley's on the Court -- Rebecca Grassl Bradley, who is among the conservatives, and Ann Walsh Bradley, who is one of the liberals. The latter Justice Bradley joined, but did not write, the liberal dissent, so throughout this post all references to "Justice Bradley" refer to Rebecca Grassl Bradley.