“A court of one: Anthony Kennedy”

I have written this oped for the LA Times.  It begins:

Forget the debate over whether the Supreme Court has taken a liberal turn. It is not a liberal court or a conservative court. It’s a Kennedy court. On major constitutional and statutory questions, Justice Anthony M. Kennedy’s views matter more than anything else.

Liberals do have more to celebrate this term than in the recent past, from the same-sex marriage and Obamacare decisions, to a major housing discrimination case, to a surprising win for minority plaintiffs in a voting rights lawsuit. In all of those cases, Kennedy was in the majority, and all but one — Obamacare — were decided 5-4.

But there were some victories for conservatives as well. The court blocked a key environmental rule on mercury pollution. It upheld Oklahoma’s lethal injection method. And it rejected an attempt to put a Texas voter identification law on hold even after a federal court found that the legislature intended to discriminate against minority voters. Kennedy was in the majority in these rulings.

It concludes:

Driven by feeling over theory, Kennedy also has the frustrating habit of taking nondefinitive positions as he makes up his mind. He’s skeptical of racial preferences, but not so skeptical that he’s willing to completely jettison affirmative action. And so the law remains uncertain. He’s troubled by partisan gerrymandering, but is reluctant to police legislatures. And so the law remains uncertain.

It’s crazy to have major social and public policy questions depend so much on Kennedy’s whim, not to say what he had for breakfast. But it could be worse. As much as liberals would love to see Kennedy retire and be replaced by another Elena Kagan or Sonia Sotomayor, depending on the next election, we could get another Samuel A. Alito Jr. or Antonin Scalia. Then we’ll be pining for the days when Kennedy ruled America.




Michael Morley on the SCOTUS AZ Redistricting Decision

Here is a guest post from Michael Morley, whose article on the Elections Clause issue was cited by Chief Justice Roberts in his AZ dissent:

Yesterday, the Supreme Court upheld the use of independent redistricting commissions to redraw congressional district lines, by a bare 5-4 majority, in Arizona State Legislature v. Arizona Independent Redistricting Commission. The Elections Clause of the U.S. Constitution grants the power to regulate federal elections specifically to the “Legislature” of each state, rather than to the state as a whole. Arizona voters had enacted an initiative amending their state constitution transferring the state legislature’s authority to determine congressional district boundaries to a bipartisan independent commission. While the Court’s endorsement of such commissions is the opinion’s most immediate impact, there are other important aspects of the ruling that bear exploring.

First, and perhaps least surprisingly, the Court expressly affirmed that legislatures may delegate their power to regulate federal elections to other entities. Slip op. at 25. Interestingly, the only authority cited for this proposition is a concession by Petitioners’ counsel at oral argument. See id. (citing Tr. of Oral Arg. 15-16). Nevertheless, this holding makes it more difficult for plaintiffs to challenge regulations, policies, or decisions regarding federal elections made by state or local officials on the grounds that the Elections Clause requires the legislature itself to make the determination (at least if the legislature has delegated authority to promulgate rules or make certain decisions). At most, perhaps state legislatures acting under the Elections Clause may be bound by the same nondelegation doctrine, such as it is, that ostensibly limits Congress in the exercise of its Article I, § 8 powers.

Second, the majority’s ruling represents a dramatic expansion of precedent because it not only allows entities other than a state’s institutional legislature to redraw congressional districts, but it permits the institutional legislature to be completely excluded from the process. Prior cases such as Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916), and Smiley v. Holm, 285 U.S. 355 (1932), had adopted a broad construction of the term “legislature,” as including any entities that exercise a state’s legislative authority. Neither of those precedents, however, allowed an institutional legislature to be completely excluded from regulating any aspects of federal elections. Under the majority’s approach, a state is free to decide that its “legislature” for purposes of the Elections Clause does not include its actual institutional legislature. The majority may have done better to adopt a compromise position, in which entities such as independent commissions may participate in the congressional redistricting process, but not to the complete exclusion of the institutional legislature (for example, by allowing the institutional legislature to veto the commission’s redistricting plan by a 2/3 or 3/4 vote).

Third, the majority’s opinion contains no limiting principle. While this case concerned only redistricting commissions, the Court’s reasoning appears to apply equally to all aspects of federal election law. In other words, the majority opinion appears to permit a state—whether through state constitutional amendment, public initiative or referendum, or even traditional legislative action—to vest complete authority over the rules governing federal elections in some entity other than the institutional legislature. In short, independent redistricting commissions may be just the beginning. Under the majority’s view, it seems that power to determine a state’s rules concerning voter registration, voter identification, voter list maintenance and updating, voter challenges, poll watchers, polling place locations and hours, and the complete host of other issues relating to federal elections may be completely vested in an ostensibly nonpartisan or bipartisan entity other than the institutional legislature.

Fourth, almost in passing, the majority disavows the “independent state legislature doctrine” that the Court had endorsed, albeit in dicta, in McPherson v. Black, 146 U.S. 1, 25 (1892), and that had been adopted and followed by numerous state supreme courts throughout the nation’s history, as well as both Houses of Congress. The doctrine provides that a state constitution may not impose substantive restrictions or limits on a legislature’s authority to regulate federal elections, since the legislature derives this power directly and exclusively from the Elections Clause of the U.S. Constitution. Thus, in a clash between a state constitutional provision regulating federal elections and a state law enacted by the legislature, the state law generally has prevailed, even in situations where the outcome of an election hinged on the issue. See Michael T. Morley, Rethinking the Right to Vote Under State Constitutions, 67 Vand. L. Rev. En Banc 189, 198-204 (2014) (citing cases). The Arizona Independent Redistricting majority dismisses this doctrine, declaring: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” Slip op. at 28. The Court did not mention, much less discuss, the state supreme court rulings on this issue it was overturning. This holding—perhaps the most significant and underappreciated side effect of the majority opinion—allows plaintiffs to continue raising state constitutional challenges to federal election laws, as Professor Josh Douglas has ably advocated. See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89 (2014).

Finally, although the Justices’ votes largely broke down along traditional partisan lines, with Justice Kennedy siding with the liberal Justices, the Court’s ruling is unlikely to systematically benefit either Democrats or Republicans in the short term. Independent commissions strip legislatures of their power to engage in partisan gerrymandering, and they exist in states with both Democrat- and Republican-controlled legislatures.

In the long run, however, the opinion might be most beneficial for Republicans. The Court’s interpretation of the Elections Clause likely would apply, in pari materia, to Article II’s Presidential Electors Clause, which permits the “Legislature” of each state to determine how presidential electors shall be chosen. California voters have a history of adopting initiatives that would never pass the Democrat-controlled legislature. The majority’s ruling keeps the door open for an initiative to allocate California’s electoral votes on a district-by-district basis (as Nebraska and Maine presently do), or based on the proportion of votes each presidential candidate receives statewide, rather than on a winner-take-all basis. This would break up California’s monolithic bloc of 54 electoral votes that are virtually guaranteed for the Democratic Presidential candidate and allow Republican candidates to realistically vie for a portion of them. One initiative to do so, the Make Our Vote Count Act, was proposed this election cycle, but failed to gain enough signatures to appear on the ballot. Should such a measure be adopted, we might see some of the liberal groups that filed amicus briefs ardently embracing direct democracy under the Article I Elections Clause take a much dimmer view of it in the Article II context.




Will the AZ Redistricting Case Save National Popular Vote From Constitutional Challenge?

Yesterday’s Supreme Court decision reading the term “Legislature” capaciously for purposes of the Elections Clause likely means it would be read capaciously for purposes of Article II as well. This means, for example, that if a state by initative decides to divide up its electoral college votes proportionally rather than winner take all, or district by district, it likely does not usurp the power of the state legislature. (See my Slate piece yesterday on the connection of the AZ case to Bush v. Gore’s discussion of this issue.)

But that does not mean, as Richard Winger suggests, as easy constitutional path for the enactment of NPV, which would divide electoral college votes of all states that agree in line with the winner of the national popular vote.

The biggest constitutional problem with NPV is not the Legislature question, but instead whether such an agreement among the states would be a “compact” requiring congressional approval. Derek Muller makes a strong argument that the compact issue is a problem.


“At the Supreme Court, a Win for Direct Democracy”

Rick Pildes NYT oped concludes:

The Supreme Court often surprises critics who see it in simplistically ideological terms. As this term and this decision confirm, the current court remains a pragmatically minded institution that interprets legal language with an eye toward the problems that language was created to address. As a result, direct democracy will remain available to constrain partisan gerrymandering and other ways legislatures seek to manipulate democratic purposes for self-serving reasons.


Ronald Keith Gaddie on AZ Redistricting

LSE blog:

One might argue that this is a conservative decision. It leaves the status quo in place, and it defers to the state constitution in matters of state policymaking. States are able to order their institutions, so long as they do not deny or abridge fundamental rights of the individual. In the case of Arizona’s proposition 106, voters had exercised their right to enact “any law which may be enacted by the Legislature.” The Court has affirmed a state right.

The minority would doubtlessly disagree with this states’ rights characterization. Justice Roberts argues that “The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.” In effect, the Court has created this understanding of what is a legislature anew, out of whole cloth. More specifically, he refers to the decision as a “magic trick.” A legislature for Justice Roberts is a republican form of legislature, the representative institution, rather than the potentially evolving legislative authority of the state.


Breaking: #SCOTUS to Hear ANOTHER AZ Redistricting Case

The case is Harris [corrected] v. AZ Redistricting Commission (14-232) and the three questions presented (in the jurisdictional statement)  deal with one person, one vote deviations to satisfy partisan advantage, deviations from partisan advantage to satisfy the (now defunct) preclearance requirements of the DOJ, and whether the redistricting commission erred in allegedly drawing Hispanic influence districts.  This could turn out to be a major case, although the first question seems to have been resolved by the Supreme Court’s summary affirmance in Larios v. Cox, and the second question seems mooted by Shelby County‘s killing of preclearance. I am not sure why the Court took this case rather than a simple summary affirmance, but we will find out soon enough. Perhaps the Court thought it should take the case while the larger Evenwel one person, one vote case was pending.

The full questions presented are:

Screen Shot 2015-06-30 at 6.38.46 AM


Via Justin Levitt, here are the relevant documents:


District court

Opinion rejecting challenges, concurrence, dissent (Apr. 29, 2014).

U.S. Supreme Court
Notice of appeal (June 25).
Jurisdictional statement (Aug. 25).
Motion to dismiss or affirm (Nov. 13).
Opposition (Dec. 2).


Thor Hearne, whose fraudulent fraud squad activities get full play in my book, The Voting Wars, brought this case.

This post has been updated.


“When ‘Legislature’ May Mean More than ‘Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore”

I wrote this piece in 2008 for the Hastings Constitutional Law Quarterly. After the AZ case, I can say that I now think it is very likely that initiated electoral college reform would satisfy the Legislature requirement of Article II. Here’s the abstract:

This Article, forthcoming in a symposium in the Hastings Constitutional Law Quarterly, examines the question of the constitutionality of changes to the Electoral College accomplished through the initiative process; it does not discuss the merits of either the Electoral College or reforms that have been proposed to change it (whether through the initiative process or otherwise). Part I gives the brief history of attempts to use the state initiative process to change the rules for choosing presidential electors, beginning with Colorado’s Amendment 36, which would have divided the state’s electoral votes proportionally but failed to pass in the 2004 election, to the current California Electoral College measure, which would divide electoral votes mostly by congressional district and whose fate is unclear as of this writing. It also explains that even if the California measure fails to qualify or pass, this issue could well arise in a future election because of general dissatisfaction among segments of the population with the Electoral College system for choosing the President. Part II turns to the constitutional question whether initiated changes to rules for choosing presidential electors violate Article II. It offers an analysis of the question based upon the text of Article II, relevant Supreme Court caselaw involving Article II, as well as Articles I and V, and the possible purposes behind Article II’s use of the term Legislature. It concludes that the issue of the constitutionality of initiated Electoral College reform is a difficult one to resolve about which reasonable jurists will differ, and because of that difficulty resolution by the Supreme Court could appear to be colored by the political considerations of who could lose or win by resolution of the question raising the specter of another Bush v. Gore. Part III concludes with two strategies that can help avoid the Article II question from becoming the next Bush v. Gore. First, courts should be more willing to engage in pre-election review of such measures, so that these issues can be resolved before, rather than after, an election. Second, Congress should consider amending the Constitution with an election administration amendment that would impose a two-year waiting period before any state’s changes to Electoral College rules may go into effect. An amendment changing the Electoral College itself would be difficult to pass through Congress and the states. But my proposal is a neutral amendment ex ante that could decouple the consideration of the merits of Electoral College reform from the short term political advantages that could come from such a change.


“The Arizona Decision: Constitutional Reasoning Within the Reform Model”


The next few days of commentary on the Arizona redistricting decision will include the usual debate about which side had the better of the “legal argument.”   And, in truth, both the majority opinion and the chief (Roberts) dissent can be defended.  Each is effectively drawn, making the most of the materials available to it.  Each also takes the usual liberties with the construction of precedent and the standards by which particular points—an example being the majority’s reliance on 2 U.S.C. §2(a)(c)—are deemed relevant.  More interesting is the way that the majority weighs the reform objective.  The majority in the Arizona case adheres to a model familiar in political reform arguments more generally, within and outside the Court.

For this majority, the constitutional question cannot be considered apart from the reform objective served by the initiative creating the Independent Redistricting Commission.  The “people” are seen to be taking urgent steps to protect against officeholder self-interestedness. So, as Justice Thomas points out in dissent, the Court here lauds the exercise of direct democracy, which at other times is given the back of its hand.  The reason for the difference is simple: the objective that the tools of direct democracy have been in this case wielded to bring about.


Small Error in Justice Ginsburg’s AZ Redistricting Decision

A reader via email notes to me that Justice Ginsburg’s decision in the AZ redistricting case contains a minor error of fact on page 8 of the slip opinion. The opinion states:

The California Redistricting Commission, established by popular initiative, develops redistricting plans which become effective if approved by public referendum.7

7. See Cal. Const., Art. XXI, §2; Cal. Govt. Code Ann. §§8251–8253.6 (West Supp. 2015).

In fact, there is no referendum requirement in Art. XXI of the state Constitution. Instead, the go into effect after being approved, but they are subject to potential referendum under the usual rules for referenda of legislative matters. See Cal. Consts. Art. XXI section 2(i):

(i) Each certified final map shall be subject to referendum in the same manner that a statute is subject to referendum pursuant to Section 9 of Article II. The date of certification of a final map to the Secretary of State shall be deemed the enactment date forpurposes of Section 9 of Article II.

The last time readers pointed out an error in a Justice Ginsburg opinion, I noted it on the blog and the Justice quickly corrected it.


“Hillary Clinton Faces a More Liberal Democratic Fund-Raising Landscape”

Important NYT analysis:

Hillary Rodham Clinton will seek out donors to her presidential campaign from a Democratic fund-raising landscape vastly altered since her first presidential bid and far more ideologically aligned with the party’s liberal activists.

Democrats now get far less money from Wall Street, military contractors, health care companies and other industries that for decades ladled out cash more evenly to both parties, according to a New York Times analysis of data collected by the Center for Responsive Politics, a watchdog group. And the party now relies far more on constituencies that have achieved new clout in the era of “super PACs” and carefully targeted digital fund-raising.

As many as one-fifth of elite Democratic “bundlers” — volunteers who raise money from friends and business associates — are active in gay-rights causes or are themselves gay or lesbian. Outside Democratic groups rely heavily on wealthy environmentalists, such as the billionaires Tom Steyer and Michael R. Bloomberg, and on labor unions, whose financial might has been magnified by the Supreme Court’s Citizens United decision in 2010 even as their membership rolls decline.


Nate Persily on AZ Redistricting Decision, Etc.

Nate, whose work was cited multiple times in today’s decision, writes:

While observers of the Court will read into these opinions – as they should — larger principles of legislative deference or fundamental rights or respect for the democratic process, we should not ignore the opinions’ pragmatic side. Indeed, the Court broke new ground with these opinions, but it also dodged several bullets. Avoiding dramatic instability in the law, while rarely a rallying cry, is an achievement nonetheless.


Breaking: #SCOTUS Stays TX Abortion Order, Making Abortion Case Next Term Very Likely: It’s Still Justice Kennedy’s Court

Here is the order:

The application for stay presented to Justice Scalia and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Fifth Circuit in case No. 14-50928 is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the judgment of this Court. The Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito would deny the application.

It is Justice Kennedy’s Court after all.

It will take only 4 Justices to hear the case, but I can’t imagine anything but a cert. grant in this case (or the Mississippi case with this one held).  And a stay looks at a sneak peek on the merits, and that means that the challengers have a decent likelihood of succeeding.

[This post has been updated.]


“Mindlessly Literal Reading Loses Again; This Supreme Court decision is a dig at Bush v. Gore.”

Here’s my piece at Slate on today’s AZ redistricting ruling from the Supreme Court.  It begins:

The Supreme Court ended its term Monday with another major rejection of conservative attempts to use wooden, textualist arguments to upset sensible policies. The result in Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld the use of independent commissions to draw Arizona’s congressional districts, is a big win for election reformers and supporters of direct democracy. The Arizona decision also undermines the strongest conservative argument in favor of George W. Bush in Bush v. Gore, the case that handed him the 2000 presidential election.

Monday’s 5–4 decision has much in common with last week’s blockbuster Obamacare ruling. In a 6–3 decision in King v. Burwell, the Supreme Court upheld the availability of federal subsidies for those signed up for Obamacare despite language in the health care law that could have been interpreted to give those subsidies only to those on state exchanges. The court rejected a narrow reading of the term “such exchanges” in the health care case because it saw its job not to read the text out of context but to follow broad congressional purpose. As Chief Justice John Roberts wrote for the King majority: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

But while Roberts was willing to be less than literal in the Obamacare case in order to further the obvious purposes of the statute, he was not so flexible in the Arizona case. At issue in Arizona was whether Arizona voters could take away the power to draw congressional districts from the self-interested and partisan Arizona Legislature and put it in the hands of an independent redistricting commission. The Constitution’s Elections Clause vests in each state’s “Legislature” the power to set the rules for congressional elections, subject to congressional override. In some earlier cases, the Supreme Court had rejected narrow readings of the word legislature, for example by letting the people use a referendum to review congressional redistricting plans from a legislature. Roberts said today that cutting the legislature out entirely violated the Constitution. “What chumps!” he declared sarcastically of those who believed the word legislature should be interpreted literally.

But the majority, in an opinion by Justice Ruth Bader Ginsburg joined by the court’s other liberals and Justice Anthony Kennedy, rejected Roberts’ narrow reading. Ginsburg said the purpose of the Elections Clause was to make sure that Congress could override state legislatures if they were too self-interested; the purpose was not to empower legislatures over their own people. And she wrote that the initiative provides an important way for voters to deal with partisan gerrymandering and other problems where legislators pass rules to benefit themselves and their parties rather than the democratic process as a whole. The ruling was especially important because the court, thanks to the vote of Kennedy, won’t directly police partisan gerrymandering.

Kennedy joined in this decision likely in large part because of his experience as a native of California, where he had seen the initiative process work to bypass legislative self-interest. His endorsement came as somewhat of a surprise because he seemed to be attracted to the textualist argument at oral argument. Likely by the time of writing the decision, he realized that a narrow textualist ruling would be a disaster for the democratic process.


Ned Foley on the AZ Redistricting Decision

At Moritz:

“The majority contends that its counterintuitive reading of ‘the Legislature’ is necessary to advance the ‘animatingng principle’ of popular sovereignty.” With this sentence in his dissent (at page 14), Chief Justice Roberts gets to the heart of the debate in today’s 5-4 decision in the Arizona redistricting case.

Roberts undoubtedly is correct that the much more straightforward reading of the term “Legislature” is to say that it means the institutional entity that consists of representative lawmakers elected by the citizenry, rather than to encompass the citizenry itself when it engages in a direct lawmaking capacity through the device of a referendum or ballot initiative. This more straightforward reading, as Roberts points out, sits more easily with other uses of the term “Legislature” in the U.S. Constitution, most especially the provision—subsequently superseded by the Seventeenth Amendment—that gave the power to elect U.S. Senators to the “Legislature” of each state, rather than to the citizenry.

But this straightforward reading would have the pernicious consequence of prohibiting the states from attempting to curb the evil of partisan gerrymanders by taking the power to draw congressional districts away from state legislatures and putting this power instead in the hands of independent redistricting commissions designed to be nonpartisan. As today’s opinion for the Court (written by Justice Ginsburg) observed on its very first page,       partisan gerrymandering has no legitimate defense in a democracy; it’s only a question of what means are available under the Constitution to combat it.


Tom Mann On the AZ Redistricting Decision

At Brookings:

The Court has upheld the right of those states to legislate electoral rules through a popular vote. Had the minority position prevailed, state laws governing many aspects of the electoral process would have been subject to constitutional challenge. And an important safety value available to the people of the states for responding to abuses of power by those in public office has been preserved.

This should not be read more broadly as a triumph of direct democracy over representative government. Many scholars who provided expert opinion supporting the majority opinion retain serious concerns about the overuse and misuse of initiatives and referendums. Instead, the decision strengthens the legitimacy of representative democracy by reinforcing the essential link between republican government and popular sovereignty.


Breaking: #SCOTUS Upholds Independent AZ Redistricting Commission 5-4

You can read the 5-4 opinion here.

I will have a piece posting soon at Slate on the larger meaning of the case, but here are some thoughts in the interim:

1. The key holding (aside from standing): AZ voters have the power to set up an independent redistricting commission, which completely cuts the AZ Legislature out of the process for drawing congressional districts, despite language in the Elections Clause of the Constitution granting to each state’s “Legislature” the power to set the rules for congressional elections, subject to congressional override.

2.  This is a huge victory not only for those who support redistricting commissions, but those who want to see election reforms done with the use of the initiative process and other tools for direct democracy. This case makes it clear that state Constitutions enacting rights to vote and other election rules applicable to federal elections are safe from an Elections Clause challenge.  This is a huge relief.

3. The result here was somewhat of a surprise, given Justice Kennedy’s comments at oral argument which seemed to suggest he was taking Paul Clement’s textualist arguments seriously, despite earlier cases which suggested a more capacious reading of the term legislature.  I attribute much of this to Justice Kennedy’s experience as a Californian who has used and seen the benefits of direct democracy.

4. A key part of my Slate piece will contrast Chief Justice Roberts literalism here in dissent with his lack of literalism in King v. Burwell.

5. The standing part of the case could be quite significant. I’ll have to leave that to the standing gurus.  But looks like institutional standing for state legislatures is a thing (or could be a thing in the right case).

More to come.

[This post has been updated.]


Breaking: #SCOTUS Denies Cert in Kobach, Renzi Cases

The order list is here.

This is a very big deal. Kobach had the potential to shift more power away from the federal government in administering elections toward the states.  The question was whether the states of AZ and KS could force the federal government to require citizenship documentation to accompany the universal federal form for voter registration. This is a huge win for those who want to see a greater federal role and uniformity in elections.  My earlier coverage of Kobach v. EAC is here.

The Renzi case was a serious test of the scope of the Speech or Debate clause. At stake was the question whether that clause, which protects legislators in what they say and do as legislators, could be used to make it harder for federal authorities to investigate and prosecute bribery and related offenses.  My earlier coverage is here.

This takes two major potential election cases off next year’s docket, leaving the major one person, one vote Evenwel case as the only one right now on the Court docket.  I wrote about Evenwel, and the AZ redistricting case, which should be out any time, here at Slate.

This post has been updated.


Is Chief Justice Roberts Really Consistent? Think Citizens United and Shelby County

Jeffrey Rosen makes the case in the NYT Sunday Review, seeing a similar deference/minimalism in deferring to the political branches in the same sex marriage and Obamacare cases.

But what about his utter lack of deference in the campaign finance and voting rights areas?  Rosen says:

However, the chief justice’s commitment to judicial restraint and a limited conception of the court’s institutional role is not unvarying. He has written or joined opinions striking down federal campaign finance laws and voting rights laws. Earlier last week, he wrote an opinion for the court that removes one of the last New Deal farm programs propping up price supports for raisins as a violation of the Fifth Amendments prohibition on takings of property without just compensation. In all of these cases, however, Chief Justice Roberts identified a particular clause of the Constitution — the First Amendment, the Fifth Amendment or the 14th Amendment — that he believed invalidated the federal law in question. In the marriage equality case, he concluded that no clause of the Constitution clearly protected a right of marriage equality, which is why he accused the majority of substituting its own policy preferences for those of the people, as reflected in state legislation.

This is unconvincing because those clauses (First Amendment’s free speech clause, or the equal protection clause, or for that matter the 15th amendment) are not self-defining or limited in thinking about the role of the courts versus the role of the democratic process.

Indeed, I think my dean, Erwin Chemerinsky, has the better of the argument on this point:

The difference between the majority and the dissents, and between the liberal and conservative commentators, is about the appropriate role of the Supreme Court in a democratic society.   Not surprisingly, the four dissenting opinions all accuse the majority of undue judicial activism and usurping the democratic process.   This is always the dissent’s charge when the majority strikes down a law.  Of course, none of the four dissenters seemed the least bit concerned with deference to the political process or avoiding judicial activism when two years ago they all were part of the majority in striking down key provisions of the Voting Rights Act that had been passed almost unanimously by Congress and signed into law by President George W. Bush.   In that case, Shelby County v. Holder, it was not even possible to tell what constitutional provision the majority thought was violated by the Voting Rights Act.  None of the four dissenters were the least bit concerned with deferring to the political process when they declared unconstitutional key provisions of the Bipartisan Campaign Finance Reform Act in Citizens United v. Federal Election Commission.

UPDATE:  See also this tweetstorm from Mike Sacks.


Arizona on the Mind: A Response to Rick Pildes

My friend and NYU colleague Rick Pildes, anticipating the Supreme Court’s ruling in the Arizona redistricting case, argues strongly for the Court to let independent redistricting commissions flourish.  The question presented – – whether “legislature” can be read to mean an independent, unelected body to which complete redistricting authority is delegated – – strikes Rick as somewhat beside the point.

The Framers could not have thought about this question, Rick writes, and so could not have ruled out this institutional innovation.  While “not naïve about the risk that officeholders would try to aggrandize their own power”,  they “didn’t have in their mental toolbox the possibility of the kind of specialized, relatively independent institutions that later emerged for tasks like drawing election districts or regulating other aspects of the democratic process.”  Other democracies have worked successfully with these institutions, and Rick contends that ours should be able to do so as well, as an effective means of addressing partisan self-interestedness in the drawing of district lines.

We will see Monday, of course, how all this goes.  But Rick’s interesting argument relies on a few assumptions that merit a close look.

Continue reading


Registration Now Open: All Star Line Up for UCI #SCOTUS Term in Review Event July 13

[Bumped to the Top]

Wow this will be great, especially given the high profile cases this term:

5th Annual Supreme Court Term in Review

Monday, July 13, 2015, 12:00–1:30 P.M.
UCI Student Center, Pacific Ballroom (Map)

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2014 term, with an all-star panel of Supreme Court practitioners, journalists, and academics.


The event will also be webcast, with viewers able to submit questions via Twitter, using the hash tag #ucilawscotus at the end of your question.

This event is approved for 1.5 hours of Minimum Continuing Legal Education Credit by the State Bar of California.
UC Irvine School of Law is a State Bar-approved MCLE provider.

Registration is now open. Click here to register



CJ Roberts’ Empirical Prediction About Same Sex Marriage Acceptance is Almost Certainly Wrong

In his dissent in Obergefell v. Hodges CJ Roberts writes:

Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

That seems quite unlikely. Think of Loving v. Va, striking down bans on interracial marriage, and laws barring de jure discrimination generally. This has not led to more discrimination. It has led to less. By the next generation, same sex marriage will be no big deal for almost everyone in the country. Legality brings normalization, not the other way around. The battle is over.

I find it hard to believe that Chief Justice Roberts actually believes this.  And one can buy the rest of his argument (about leaving it to the democratic process) without this empirical prediction.


Four Key Unanswered Questions in Obergefell

Here is my list of the key unanswered questions in Obergefell v. Hodges.:

1. What level of scrutiny applies to claims of discrimination against LGBTQ people unconnected to the marriage question?

2. How is the Court to resolve the clash of religious liberty and marriage equality? The Court says almost nothing on this, other than a paragraph recognizing the right of religions and religious people to teach and speak against gay marriage?

3. What is the level of scrutiny to apply to laws that bar plural marriage (polygamy, polyandry)?

4. Is there is fundamental right to plural marriage?


Why Does J. Kennedy Leave Affirmative Action, But Not Gay Rights, to the Democratic Process?

Today is a day to celebrate the right to same sex marriage recognized by the Supreme Court in its 5-4 decision in Obergefell v. Hodges. It is a remarkable achievement considering where the country was two decades, and one decade ago. But the majority opinion leaves open many questions, and I want to look at one in this post: Why did the Court reject the democratic process argument, but accept it in the Schuette case?

The majority opinion recognizes the right to same sex marriage as a fundamental right under the due process clause, as well as protected by the equal protection clause (although that argument is much less developed).  The main response of the chief dissent coming from Chief Justice Roberts is a political process objection: this is an issue that should be decided by the states and the democratic process, and not by unelected federal judges. Roberts goes so far as to analogize the decision to recognize this fundamental right to the Lochner era. Here is a key passage from Roberts:

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right togovern themselves. They would never have imaginedyielding that right on a question of social policy to unaccountable and unelected judges. And they certainly wouldnot have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy,debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist,The Notion of a Living Constitution, 54 Texas L. Rev. 693,700 (1976). As a plurality of this Court explained just lastyear, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16– 17).

Schuette was a case in which the Court upheld a Michigan law barring affirmative action in education. Here is how Justice Kennedy, in the plurality opinion put the question before the Court there: “The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”

Kennedy’s answer was that the question of affirmative action was to be left to the people themselves:

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process

In Obergefell, Justice Kennedy purported to distinguish Schuette and to respond to CJ Roberts’ citation of it in his dissent:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they canlearn and decide and then, through the political process,act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in oneof its essential dimensions, of the right of the individualnot to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rightsof persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17).This holds true even when protecting individual rightsaffects issues of the utmost importance and sensitivity.

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their owndirect, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyondthe reach of majorities and officials and to establish themas legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943).This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid. It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.

(My emphasis.)

So why the different treatment? Why trust the voters in one area but not the other? The answer seems to lie in the psychology of Justice Kennedy. He is skeptical of race-based preferences but not of gay rights. Indeed, it looks like all the other Justices on the Court are more consistent in their approaches to these questions than Kennedy. He is the only one who voted with the majority in both Schuette and Obergefell. When to trust the voters? When they are likely to vote with Justice Kennedy.


Congress has a “plan” and the Court can understand it – The Court rises to the challenge of statutory complexity in King v. Burwell

[posted earlier on SCOTUSblog]

“A fair reading of legislation demands a fair understanding of the legislative plan.”  So concludes the game-changing statutory interpretation opinion of Chief Justice John Roberts in King v. Burwell. The opinion begins with five pages of detailed explanation of how the Affordable Care Act’s main provisions operate.  This is not Justice Antonin Scalia’s textualism.   King turns out to be a case about understanding Congress, not finding it inscrutable.  And it is the first major statutory case in which, rather than shying away from the difficult questions raised by the mounting complexity of the modern statutory era, the Court rises to meet it.  In King¸ the Court tells us, in no uncertain terms:  “We’ve got this.”  In so doing, the case may have ushered in the next chapter in the story of statutory interpretation, the Court, and its relationship to Congress.

Yes, Congress is more complex than ever and the ACA is unbearably long.  Yes, the ACA’s legislative process was highly unorthodox.  Yes, there is an unprecedented and unusual number of overlapping delegations to agencies in the statute, one of which – the overlap between the Department of Health and Human Services and the IRS – was at issue in the case.  Yes, the ACA  was “inartfully draft[ed]” (the Court’s phrase).  The majority acknowledges all of these challenges , but it does not take the path that the Court’s textualists usually take in the face of them – throwing up their hands and saying that such complexity is all the more reason to adopt a literal approach because Congress can never be understood. Rather than use the ACA’s complexity to say that its meaning is hopelessly indeterminate, King tells us that, even in the face of such complexity, Congress not only had a plan but that the Court is more than capable of discerning it.  The Court is all grown up.

I previously wrote here that King would be textualism’s big test.  The case, as briefed, struck at the soul of legislation experts because it so starkly highlighted a pressing question that the Court has long-resisted answering: How will the law of statutes adapt to today’s era of legislative complexity?  Would the text-oriented Court give the ACA the kind of sophisticated reading that textualism’s advocates have long told us textualism stands for, or would King reveal that statutory interpretation is nothing but an unprincipled game – an opportunity for very smart lawyers to seek loopholes in massive federal laws with the sole mission of pulling statutes to pieces.  It smelled like a constitutional battle on the cheap.

But that’s not what we get in the King opinion. It’s not that a sophisticated Scalia-esque textualist opinion couldn’t have sustained the result;  it could have.  But in an important sense, the Court chooses not fight on the typical textualist terrain at all, and instead gives us a different vision of the Court’s role in the cases like this than we have seen in a  long time.  King  is one of the only major text-oriented statutory interpretation decisions in recent memory in which the majority opinion barely includes a single canon of interpretation.  Most major statutory interpretation cases are Karl Llewellyn’s nightmare – a  barrage of canon vs. counter-canon. That is what many of us expected from King. But instead of duking it out through the canons, the King majority opinion outright rejects some of textualism’s favorites, including the rule against superfluities and the presumption of consistent usage, on the ground that they simply are not legitimate or accurate assumptions to apply to a statute as complex and as unorthodoxly drafted as the ACA.

Justice Scalia’s dissent views these departures from favorite textual presumptions as an exercise in activism, even though those presumptions assume a level of drafting perfection that rarely holds.  But what actually justifies the textual canons of interpretation in the first place if not their connection to how Congress works? The Court for decades has argued that the canons are legitimate precisely on the ground that they are realistic assumptions of how Congress drafts or are part of a shared set of conventions that put Congress and courts on the same page. My own empirical work casts serious doubts on those assumptions.  King drives home the point. What could be more activist than using judge-made rules of interpretation to impose a meaning on a statute that has no connection to its context and would literally smash the law to pieces? It is no accident that the majority opinion opens with the lengthy explanation of the ACA. The Court is showing us that it understands this law, and that it is important that it does.

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Context for the Arizona Redistricting Case

Later today or next week, the Court in the Arizona redistricting-commission case will issue one of its more important decisions on “the law of democracy.” To provide context for that decision, it’s useful to see two paradoxes the case illustrates about the American Constitution’s status as the most enduring Constitution in the world. The very success of the American Constitution, ironically, can make it more difficult to address today’s democratic problems.

Unlike most modern Constitutions, such as those created after 1945, the American Constitution does not create any specific institutions designed to oversee in relatively impartial ways the ground-rules of democracy itself. As the world gained more experience with constitutional democracy, the risk that those who currently hold power will try to manipulate the ground-rules of democracy to entrench themselves and their partisan allies in power became more apparent. In response, modern Constitutions typically create one or more institutions, designed to be at some remove from the routine forces of partisan politics, to set and protect the ground-rules of democratic politics itself. These institutions include, for example, specialized “Electoral Courts” to regulate the election process and resolve disputed elections; they also include entities like “Independent Boundary Commissions” to design election districts and similar administrative or quasi-judicial institutions. These more recent constitutional democracies recognize the need to take out of the hands of existing officeholders the power to control the legal rules under which they and their rivals compete for political power. Nearly all countries that use election districts now use some sort of independent commission to draw those districts (the UK is a mixed, more complex story).

But at the time the American Constitution was written, there was no discussion or debate or even any recognition of the possibility of creating these kinds of institutions to play a role in ensuring a well-functioning democratic system. The Framers were not naïve about the risk that officeholders would try to aggrandize their own power; but they didn’t have in their mental toolbox the possibility of the kind of specialized, relatively independent institutions that later emerged for tasks like drawing election districts or regulating other aspects of the democratic process. So state legislatures were given the power to set the rules for national as well as state elections – including deciding how to draw the lines for election districts, how to structure primary elections for the House and Senate (once we had such elections), and how to regulate all other aspects of elections.  The Framers thought a disinterested Congress would police against abuses of these powers; that’s why the Constitution gives Congress the power (in the Art. I Sec. 4 Elections Clause) to override these rules for national elections. But the Framers also didn’t recognize that political parties would form that would link partisan allies in Congress and the state legislatures. So Congress rarely disturbs state power, even on national elections. As a result, we have ended up with a system in which the most self-interested actors – incumbent officeholders – have the power to write the rules for elections, including the design of their own election districts. In other words, because our system was created before there was awareness of the possibility of, and need for, less directly partisan institutions to oversee the ground-rules of democracy, we got started with state legislatures doing this and have found it extremely hard to change this entrenched system ever since.

The failure of this system is what led the Supreme Court eventually to step in and create the “one-vote, one-person” doctrine. Through constitutional law, the Court address the massive population inequalities between election districts that existed by the 1960s. State legislatures, elected under this system, saw no reason to change it; Congress, also elected under this system and tied through partisan links to the state legislatures, also saw no need to change it. So the Court turned itself into one of the only relatively-more impartial institutions our system has available for ensuring fair ground-rules of democratic elections. But the Court cannot play this role comprehensively and systematically. In the context of designing election districts, the Court has found it too difficult to come up with standards courts are comfortable enforcing for determining what a “fair” system of designing districts means, beyond one-vote, one-person.

That brings me to the second paradox at the heart of the Arizona case. One of the few effective ways to bypass the self-interested motivations of legislators writing their own election rules is through the voter initiative process, in those states that have it. Direct democracy is controversial, partly because majorities can too easily override minority rights, but the single most compelling context for direct democracy is precisely the way it was used by the people in Arizona: as a check on the self-interested temptations of power when legislators are regulating the political process itself. But the text of the Constitution gives this power to the state “legislatures.” When the Framers assigned this power to the “legislatures,” did that reflect an original understanding that this power could not be exercised directly by voters, through the kind of direct democracy process used in Arizona? But again, precisely because of the age of the Constitution, no one was thinking about this kind of question at the time the text was written to give state “legislatures” this power. The idea of statewide voter initiative processes – let alone the idea of independent commissions – to regulate the election process was not on the table or in the mind of anyone. “Legislature” had meaning by contrast to “executive” or “judicial.” But “legislature” was not meant to be rule out, or stand in contrast to, “popular processes of direct democracy” because no one was suggesting the latter as a means of regulating elections.
For that reason, my hope is that the Court will uphold the power of voters to change their state constitutions to take the power to regulate the design of congressional districts, and other aspects of national elections, out of the hands of self-interested state legislatures and put that power in properly-designed commissions. But I want to admit that the interpretive question here – can “legislature” include voter initiatives – is much harder than the interpretive question in King v. Burwell, the recent health-care decision. The most difficult question at the oral argument came from Justice Kennedy, who pointed out that the original Constitution gave state “legislatures” the power to choose Senators. Could the voters of Arizona or elsewhere have used a voter initiative to decide that direct popular election of Senators would be a better system – even before the 17th Amendment was adopted? The answer to that question is no – and the reason is that in this context, the Framers were well aware of the option of direct election. When the text used “legislature” in assigning the power to select Senators, “legislature” in that context was used in contrast to popular election and was designed to rule that latter option out. But “legislature” was not chosen for the purpose of ruling out popular regulation of the election process, once that option became feasible.

So to uphold direct democracy as a constitutionally permissible tool for regulating national elections, the Court would have to recognize that when the Constitution uses “legislature,” it does not permit popular election of Senators but it does permit popular regulation of the processes of elections. The oral argument did not make it seem promising that a majority would accept that conclusion. But either way, if the Constitution had not been written at the dawn of constitutional democracy, we probably would have independent institutions for essential democratic tasks, like the drawing of election districts, and we would also have made an actual decision as to whether only “legislatures” should have this power or whether the people of the States could choose to give this power to less directly self-interested actors. If the Court holds the Arizona commission unconstitutional, the irony will be that (1) we will be much less likely to have the kinds of institutions to oversee democracy that most other, more recent democracies have – even though in the age of the Framers, these institutional innovations were not considered at all; and (2) the word “legislature” will oust the voters in any states from using direct democracy to regulate national elections – even though in the age of the Framers, “legislature” was not chosen or designed to preclude direct-democratic regulation of the election process.


Exhausted by Scalia’s Rhetoric

I read a lot of Justice Scalia opinions to write The Most Sarcastic Justice, and I have to say I really enjoyed reading those opinions—they were pithy, smart, insightful and blunt. Much more fun than say, reading a Breyer or Souter opinion with which I was much more likely to agree substantively.

But something’s changed more recently. Mark Tushnet puts it like this: “contrary to the seemingly widespread view that Justice Scalia is a splendid stylist, his snarkiness is getting tired.”

The question is this: has Justice Scalia’s rhetoric gotten more extreme, or is it just that it’s the same routine, over and over, applied in new cases.  I think it is some of both.

The biggest problem is a kind of Chicken Little-ism. Every majority opinion with which Scalia disagrees is dishonest, it means the end of principled jurisprudence, it will lead to horrible consequences.

I think of the earlier opinion this term in the Alabama Redistricting case. There, Scalia opened his dissent with: “Today, the Court issues a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting RightsAct of 1965, and for the primacy of the State in managing its own elections. If the Court’s destination seems fantastical, just wait until you see the journey.”

The opinion then went on to discuss standing and related issues, but NEVER explained even why he thought the opinion would lead to such dire consequences. We got the vituperativeness, but not the follow through.

It’s as though he’s tired.  And it is making us tired of reading him.

Just wait till Obergefell.