Friday, June 09, 2023

Why Did The Law Constrain Them Now?

Way back when, I spotted a great parodic bumper sticker during the 2008 presidential campaign. It read: "Bush-Cheney 2008: Why should the law stop us now?"

Yesterday in Allen v. Milligan, the Supreme Court defied expectations and, in a 5-4 ruling, preserved some semblance of a Voting Rights Act by striking down Alabama's congressional maps as illegally racially gerrymandered. Chief Justice Roberts and Justice Kavanaugh "crossed the aisle", so to speak, and now everyone is trying to figure out why (for Roberts in particular, whose hostility to voting rights long predates his time on the Court).

It is a sign of our cynical era that virtually nobody thinks the answer is "because they felt this was the right legal answer." This is especially striking because, when a justice does vote against their presumed ideological proclivities, that would seemingly spawn a greater inference that they genuinely believed in their position's formal legal correctness. If they faced the happy coincidence of "the law supports the defendant" and "I, personally, support the defendant", why wouldn't they raise a glass to their good fortune and vote accordingly?

But on the constitutional law listserv I'm a member of, everybody seems to think that this is some political legitimacy play. The conservative members cannot fathom that their preferred outcome is not legally correct; they think that Roberts and Kavanaugh voted in some ill-conceived attempt to "store political capital" and stave off allegations that the Court has become a six-member right-wing wrecking ball. Needless to say, they hold such a practice with nothing but contempt; they think Roberts and Kavanaugh are squishes. The liberals in the group, of course, do think the outcome is legally correct, but they too seem to think it's fanciful that something as trifling as "the law compels it" motivated Roberts' and Kavanaugh's votes. After all, they might ask, after years of taking a flamethrower to settled judicial doctrine and longstanding precedents in service of a hard-right agenda, why should the law have constrained them now? They also don't give much, if any, credit to the justices for any "legitimacy" chits they might have thought they earned.

It is hard for me not to credit the cynicism here. But if I were to craft a non-, or at least less-, political explanation for Roberts' and Kavanaugh's votes, it would be to distinguish between the millenarian and Burkena conservative impulses seen on the Court. 

The former is the pull of reactionary revolution -- you see the promised land, and are ready to chop down anything in your path that poses a barrier to reaching it.  In this mode, the Court's conservatives will burn down precedent, torch settled expectations, and tank the Court's political legitimacy in pursuit of a vision of idealized legal conservatism that they insist is right and true. "The heavens may fall that justice be done." Millenarianism is the impulse that yielded DobbsBruen, and Kennedy, the new "major questions" doctrine and the possible overturning of Chevron, the prospective end to affirmative action and the stunning plausibility of adopting the Independent State Legislature doctrine. Radical alterations of law with unknown and unknowable consequences, in deference to abstract right-wing legal theory and/or concrete right-wing political results. Thomas, Alito, Barrett, and Gorsuch all seem to be in thrall with the millenarian vision, albeit with perhaps slightly different visions of what utopia should look like.

The Burkean mode, by contrast, is the mode of caution, prudence, and restraint. It shies from radical change, it is cognizant of the many things it doesn't know. Recognizing the complexity of the legal machine it oversees, the Burkean conservatives are reluctant to fiddle with the dials too readily. They're willing to trim and cut, but look skeptically upon sweeping change. This impulse, at least, is found in Roberts' Dobbs concurrence, the mifepristone stay, and the so-far unwillingness to endorse any of the yearly crackpot attempts to kneecap the Affordable Care Act. It is not about liberal outcomes (as my placing Roberts' Dobbs opinion in the category should make clear); in other times, Burkeanism might operate as a voice of restraint against sweeping progressive legal victories (recall Roberts' Obergefell opinion). But on this Court, the realistic choices are between radical right-wing change and upholding the status quo -- it's hard to think of a single example of a Court ruling since Barrett's ascension that actually represents change (radical or otherwise) in a progressive direction (the liberal "victories" have generally taken the form of "managing to hold the line against a conservative assault").

On the current Court, Roberts and Kavanaugh have been most susceptible amongst the conservatives to the Burkean impulse, albeit typically in no more than halting fashion. But it's more than just naked political appeasement or trying to impress the libs (neither justice, I think it is fair to say, has shown either much interest or much success in garnering even begrudging liberal admiration). Burkeanism is a branch of conservatism too, and it shouldn't surprise that within the conservative coalition there would be those who find it comparatively more appealing. Some conservatives look at the messianic fervor that has gripped their compatriots and get antsy. They certainly feel the temptation. But ultimately, they are not quite so keen to smash the machine; they are not quite so confident they understand the fallout. And so, periodically, they step back from the abyss, and restrain themselves. Perhaps that's what happened here.

Tuesday, June 06, 2023

Is the Supreme Court Lying When It Purports To Place Limits on its Extreme Rulings? Third Circuit: Obviously, Yes

Today, the Third Circuit sitting en banc in Range v. Attorney General invalidated federal prohibitions on possession of firearms by convicted felons, at least in cases of non-violent offenders (Range had been convicted of food stamp fraud), but potentially in many other circumstances as well (via). This creates a circuit split with the Eighth Circuit's opinion last week in United States v. Jackson that I discussed here

The issue of felon disarmament under Bruen is interesting. At one level, it's always possible that any gun regulation might fall prey to Bruen's rigid history-or-bust methodology for determining constitutionality under the Second Amendment (though much here depends on necessarily subjective judgment regarding what counts as a proper historical analogy). But at another level, the felon prohibitions are distinct because Bruen (along with the other members of the Roberts trilogy on guns -- Heller and McDonald) were emphatic that these prohibitions should not be questioned under the Court's rulings. As Heller said: "The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." This was reiterated in McDonald, and confirmed again in Justice Kavanaugh's Bruen concurrence.

How does the Third Circuit get around this seemingly very explicit language? By suggesting the Court cannot be trusted to mean what it says. 

The court in an opinion by Judge Hardiman analogized adhering to the Supreme Court's express declaration that these laws remained constitutional to how the Court talked about the application of means-end scrutiny in Heller. Heller suggested that the law in question in that case would be unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Lower courts, Judge Hardiman continued, universally "overread that passing comment to require a two-step approach in Second Amendment cases, utilizing means-end scrutiny at the second step," an approach the Supreme Court ended up disavowing in Bruen. And so the Third Circuit says, in essence, it won't make the same mistake twice: it must be "careful not to overread" the language suggesting felon disarmament laws remain constitutional "as we and other circuits did with Heller’s statement that the District of Columbia firearm law would fail under any form of scrutiny."

In other words, the basic question is: can we trust the Supreme Court when it says, expressly, "our decisions should not be read to mean felon disarmament laws are unconstitutional"? Or was that a promise the Supreme Court never meant to keep? In fairness to the Third Circuit, given the choice between predicting (a) the Supreme Court will abide by its own expressly-stated doctrinal limits or (b) the Supreme Court will completely ignore its own promises the instant they seem to sanction gun control limits the Court dislikes, I'm hard-pressed to say that option b isn't the safer bet. But there is something discomforting about lower courts openly acknowledging that the best way to interpret the Supreme Court's Second Amendment jurisprudence is to assume that any limits the high court purported to place on Bruen's sweeping protections for guns everywhere-for-everyone-at-any-time are probably just lies.

As a sidenote, I'll also just say that I literally finished compiling my Con Law II course materials on the post-Bruen Second Amendment last night, and immediately had to revise them again to account for the Range decision. Again, spare a thought for the underappreciated constitutional law professor, the forgotten victims of the churn and chaos the Supreme Court has unleashed in our constitutional jurisprudence.

Monday, June 05, 2023

IHRA Cited In Pitch To Ban "Israel Apartheid Week" Displays

One of the more common points of controversy over the "IHRA" working definition of antisemitism is the allegation that it is used to chill free speech. For what it's worth, my sense is that the attempt to censor speech has actually very little to do with IHRA as a text, and is more related to IHRA's perceived symbolic status. If IHRA didn't exist, the claims wouldn't look much different.

In any event, in assessing whether IHRA "is used to chill speech," we could look at one of two things: cases where persons trying to censor speech appeal to IHRA, and cases where persons engaging in censorship justify it by reference to IHRA. The difference between attempt and success, basically. There are undoubtedly more cases of the former than the latter, and one could fairly argue that the former shouldn't "count" both because they did not actually lead to the suppression of speech and because they're functionally impossible to police (any yahoo with a web browser can say "don't allow this speech because of IHRA"; it doesn't mean anything if they're consistently not successful).

Nonetheless, I do think it is notable when semi-prominent actors use IHRA in order to call for censoring speech. Recently, for instance, a group called the "Combat Antisemitism Movement" released a report that called for universities to adopt IHRA and then use that understanding of antisemitism to bar "Israel Apartheid Week" demonstrations (via).

Allowing this virulent form of discrimination to persist under the auspices of academic freedom is simply intolerable during a time where antisemitism is rising. If such hateful displays would not be tolerated when directed at other ethnic or religious minorities, Jewish students should not be an exception.

.... While universities have an obligation to promote a diverse marketplace of ideas, they also must ensure principles of tolerance and respect for diversity are upheld. Given that it would certainly be deemed inappropriate to set up a week-long demonstration on campus calling for the destruction of another sovereign state, such as Italy, then Israel cannot be the outlier.

On the level of free speech and academic freedom, the university indeed must permit "Israel Apartheid Week" demonstrations; just as they regularly do permit displays and presentations that are deemed offensive to other minorities. But beyond that seemingly banal but nonetheless apparently not-taken-for-granted point, much lies in the framing here. There are university demonstrations which target, for example, Chinese atrocities in Xinjiang, Turkish repression of Armenians, American police violence against racial minorities, or Russian aggression in Ukraine, in extremely harsh tones. No doubt the governments of those nations, to say nothing of any nationals present on campus, may find the claims objectionable or unfair. But the university is not permitted, nor should it be permitted, to say that such protests (and "displays" thereto) are "inappropriate" and can be banned from campus. Israel indeed cannot be the outlier.

Of course, one could argue that Israel is not properly compared to China or Russia. It is better thought of, perhaps, as an Italy. But -- leaving aside whether the university would prohibit raucous protests against Italy that were deemed offensive to Italian students (I'm doubtful -- cf. protests against Columbus Day and claims by Italian-American groups that these protests constitute anti-Italian discrimination) -- the problem is that enforcing this norm would require the university to decide as a matter of institutional policy the correctness or soundness of moral appraisals about Israel's status or conduct. This, of course, is the very centerpiece of what academic freedom is meant to avoid. As the University of Chicago's famous Kalven Report argued, "The university is the home and sponsor of critics; it is not itself the critic." It is generally not the business of universities to institutionally affirm or reject a particular political stance, whether popular or unpopular; the university rather is designed to serve as a forum where these issues can be debated and hashed out. 

This does not mean tolerating actual discrimination. But discomfort with speech, even outrageous speech, is not discrimination. To keep on the Chicago theme, the U of C's widely-praised principles of freedom of expression address this very point:

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.


In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.

And despite the mau-mauing about what is allegedly "not tolerated" for other groups, these principles are the same that explain why Kyle Duncan must be allowed to speak at Stanford, Milo must be allowed to speak at Berkeley, and Christina Hoff Sommers must be allowed to speak ta Lewis & Clark. It's not because there aren't colorable arguments that any or all of these speeches or speakers are hateful. It's not even -- though the Kalven Report might disagree -- that the university isn't allowed to issue its own judgment about the propriety or not of the speech. It's that these judgments cannot, consistent with the basic principles of academic freedom, be used as a vector for prohibiting the speech.

Again, I don't think "IHRA", as a text, is responsible for these calls for censorship. But IHRA is symbol as much as it is text, and its symbolic usage has become increasingly tied to appeals such as this. Those who wish to promote IHRA's utility should think very carefully about standing by and letting it become an avatar of institutional censorship in this way. It does no service to the fight against antisemitism, nor IHRA's role in supporting that fight.