The Carter-Baker Commission on Voter I.D.: Bauer and Gerken Respond

Heather K. Gerken

Bob Bauer

On Thursday Bob Pastor offered a measured defense of the Carter-Baker Commission's recommendation on voter identification against criticisms that we (along with Brad Smith) levied in the wake of the Supreme Court's Crawford decision. One of us agrees with a good deal of what Pastor says about the merits of shadow institutions like the Carter-Baker Commission and the useful purpose the Commission served in Crawford (see here); the other is more skeptical (see here). But there are a few issues where we both part company with Pastor.

We remain convinced that the public deserved something better than what the Carter-Baker Commission produced on the photo i.d. question. The main source of disagreement between us and Pastor turns on the difference between a bipartisan compromise and a nonpartisan decision. There are many issues for which a bipartisan compromise will be a satisfactory, even superior alternative. This is not one of them.

We see no reason to quibble with Pastor’s claim that Carter and Baker "both consciously tried to transcend [partisanship] in the deliberations of the Commission, most of the time." Neither of us was there for the deliberations. Nonetheless, regardless of the motives of the participants or the quality of the deliberations, the result was -- as one of us has already pointed out -- exactly the type of compromise one would expect if a prominent Democrat and prominent Republican sat down at the table and worked out an agreement. The Carter-Baker Commission blessed the i.d. requirement (something Republicans usually want) while demanding that the state take affirmative steps to distribute i.d. (something most Democrats would want if forced to accept an i.d. requirement in the first place).

The reason for our unhappiness with this portion of the report is simple: the absence of data and, in its place, reliance on assertions about what public "confidence" requires. While we are appreciative of the important role that the Commission played in compiling evidence for its report, this was not an area where it managed to find much. As the Carter-Baker Report acknowledges, there is "no extensive evidence of fraud in the United States." Indeed, to the extent that there is any evidence of fraud, it is due almost entirely to absentee voting scams or ballot-box stuffing, not to conspiracies to persuade large numbers of individuals to show up at the polls at the risk of criminal sanctions. There is precious little evidence, then, that the kind of fraud photo i.d. is meant to deter actually exists.

On the other side of the ledger, there is limited data suggesting that many people don't currently possess the requisite identification. These data standing alone cannot establish that an i.d. requirement would deter voters, but at the very least they suggest further inquiry is necessary. That is, in fact, exactly what Spencer Overton has argued. Our claim is not, as Pastor seems to think, that the Commission tried to suppress Spencer Overton's evidence -- again, we weren't there for the deliberations. We are chiding the Commission for not paying enough attention to it.

However much data the Carter-Baker Commission gathered, it's hard to see how the evidence it had led to the conclusions it reached. This is where our assumption of political bargaining takes root. It is buttressed by the Preface to the Report, penned by Bob Pastor, which opened by noting the sharp differences between the two political parties and the need, in bridging them, for "a strong bipartisan voice." Bipartisanship requires, at its core, political compromise. Nonpartisanship disregards partisan pressures; its goal is not to bring the parties together.

The Carter-Baker Commission did offer one other justification for an i.d. requirement -- the claim that such a requirement would enhance public trust in the system. That claim, too, is unsupported by empirical evidence (and may actually be misplaced, according to a recent study by Nate Persily and Steve Ansolabehere in the Harvard Law Review).

Of all the bits of "data" that could be offered in favor of an i.d. requirement, voter perception is the one that least stands on its own -- except, that is, where it is needed to fill in large gaps that should have been filled with hard data regarding the prevalence of fraud or the effect of measures to prevent it. As Ansolabehere and Persily observe, "casual assertions about popular beliefs should not substitute for the difficult balancing of the constitutional risks and probabilities of vote fraud and vote denial." This is not to say that public confidence is unimportant. All on its own, however, it is another way of saying that voter i.d. is just something voters really want, reinforcing the impression of a Commission anxious to settle the politics as much -- if not more than -- the merits of the voter i.d. issue.

In the end, the problem all this engenders becomes clear. The Supreme Court didn't have much to cite for its views that fraud is a problem. So it cited the Carter-Baker Commission, which in turn didn't have much to cite. The Supreme Court had no evidence to cite for its intuition that people won't trust a system that lacks an i.d. requirement. So it cited the Carter-Baker Commission, which in turn had no evidence to cite for its claim. It's turtles all the way down.

Shadow commissions like Carter-Baker could -- and in this instance did -- play a constructive role in the debate over electoral reform. But as one of us has discussed in detail, the design of such an institution poses challenges, one of which is to manage the politics without being overwhelmed by them. Despite its many accomplishments in other areas, we do not believe that Carter-Baker met that test on the voter i.d. issue. And given that this is the area where its influence has been greatest, that is quite unfortunate.

-Heather Gerken and Bob Bauer


Posted 3:26 PM by Heather K. Gerken [link] (41) comments

Was the Warren Court Unusual in American History?

JB

Following up on Mark Graber's most recent post on the Supreme Court, consider why we might expect that the Supreme Court will not in fact produce principled results significantly superior to those produced by the national political process. One reason, famously suggested by Yale political scientist Robert Dahl, is that the U.S. Supreme Court tends, over time, to cooperate with the views of the dominant national political coalition. It does this by ratifying and legitimating most of the results of the national political process, by policing state and local governments so that they stay roughly in line with the views of national political elites, and (as Mark himself has pointed out) by acting as a political backstop to resolve controversies that national politicians would rather not have to take responsibility for.

The Supreme Court does tend to slow down rapid change when there is a shift in political regimes (and accompanying constitutional values), but eventually it goes along because new Justices appointed by the dominant national coalition replace older ones.

From this perspective, the Supreme Court is likely to be a conservative institution, conservative not necessarily in the sense of politically conservative but in the sense of maintaining constitutional values over extended periods of time and not straying too far from the center of political power in the country.


This also explains why during the height of the Warren Court period from 1962 to 1969, the Supreme Court made so many liberal decisions. The dominant forces in the national political process were also quite liberal during these years, and Lyndon Johnson, running as a liberal, won a landslide victory in 1964. The Warren Court struck down comparatively few Congressional laws during this period: indeed, it went out of its way to uphold Congress's important civil rights acts in 1964 and 1965. The Warren Court mostly exercised judicial review over state governments, particularly in the South, reforming the criminal justice system, secularizing the public schools, outlawing malapportionment in state legislatures, and protecting black civil rights. After the 1968 election, four Nixon appointees began to shift the Court to the right (on some issues but not others), reflecting changes occurring in national politics.

In this respect the Warren Court is not an outlier. It was a relatively faithful reflection of its times-- the high water mark of the liberal political consensus in America, a consensus that was shattered with the 1968 election.

The historical memory of the Warren Court as a particularly activist court at odds with the nation's values is largely a myth. This myth is a form of winner's history: it reflects the eventual success of the New Right (as well as regional majorities in the South) in changing understandings of American politics and the American Constitution. Attacks on the federal judiciary by conservative social movements, combined with a series of cultural, social and racial issues, helped conservatives win political power in the decades that followed. This, in turn, helped produce a federal judiciary that was more conservative on many issues but that also, like the Warren Court itself, reflected the politics of its own time.

Posted 7:25 AM by JB [link] (20) comments

The Forum of Principle Revisited Again

Mark Graber

Most law professors and lawyers are convinced that the Supreme Court has a special capacity to be guided by constitutional values. Professor Ronald Dworkin of Oxford and New York University Law School described the Supreme Court as “an institution that calls some issues from the battleground of power politics to the forum of principle.” The Supreme Court “is predestined in the long run not only by the thrilling tradition of Anglo-American law but also by the hard facts of its position in the structure of American institutions,” Professor Henry Hart of Harvard Law School agreed, “to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law.” Elected officials who make the slightest effort to limit federal judicial power bring down the wrath of a united bar. Lawyers of different political persuasions do not agree on much, but most wax eloquent about the virtues of an independent judiciary.

American constitutional history does not support these ritual celebrations. Everyone lionizes the judicial decision in Brown v. Board of Education (1954). A fair consensus has developed that the Supreme Court during the 1950s and 1960s improved the quality of constitutional justice in the United States by prohibiting official school prayer, protecting free speech, providing counsel for impecunious criminal defendants, and requiring more equitable legislative districting. When discussion moves from the Warren Court to the other 204 years of American history, the merits of judicial review and judicial independence are less clear. By almost any standard, the Court performed worse than Congress until 1954 and arguably has not performed better (or much better) after 1969.

Judicial review of federal legislation does not appear to have served any noble purpose for the first 165 years of constitutional life. Not one Supreme Court decision declaring an important federal law unconstitutional in this time period is presently thought correct by most scholars or informed citizens. More often, a broad consensus chastises the justices for striking down beneficial policies well within the constitutional powers of Congress. Most lawyers praise Marbury v. Madison (1803) for justifying judicial review of federal legislation, but few insist that the decision declaring unconstitutional an obscure section of the Judiciary Act was important or correct. Almost all lawyers [minus a nut case whose book is to your right] condemn Dred Scott v. Sandford (1856), the next instance when the Supreme Court declared a federal law unconstitutional. Very few law professors have good words for Hepburn v. Griswold (1869), the decision declaring that Congress unconstitutionally made paper money legal tender during the Civil War, Pollock v. Farmers' Loan and Trust Company (1895), the decision declaring the federal income tax unconstitutional, and the judicial decisions striking down New Deal legislation during the 1930s. Bolling v. Sharpe (1954) is the first case in American history in which a consensus now exists that the Supreme Court correctly declared a federal law unconstitutional.

Whether the Burger, Rehnquist and Roberts Courts have demonstrated more constitutional fidelity than national elected officials is controversial at best. The Supreme Court during the Rehnquist years declared more federal laws unconstitutional than at any other time in American judicial history. The federal laws struck down included affirmative action policies, regulations on campaign finance, limits on commercial advertizing, measures expanding religious freedom, restrictions on state sovereignty, and efforts to use the interstate commerce power to regulate non-economic activities. No consensus exists as to whether any of these decisions was correct. Many conservatives believe the Rehnquist Court correctly interpreted the Constitution of the United States. Liberals disagree. Whatever the constitutional merits of the decisions, few would argue that the Supreme Court in recent years has shown special solicitude for discrete and powerless minorities, unless one regards the Coors Brewing Company or persons wishing to spend millions of dollars in political campaigns as the most unfortunate Americans.

Readers who question this assessment might consider doing a survey using any constitutional law text commonly assigned in undergraduate or law classes. Leave out the Warren years and consider only Supreme Court decisions declaring federal laws unconstitutional or perhaps only Supreme Court decisions declaring important federal laws unconstitutional. Most scorecards, I suspect, will include more cases in which the Supreme Court struck down constitutional laws than instances when the justices voided unconstitutional measures. The survey of decisions declaring state laws unconstitutional is likely to be more complicated. Still, for every Brown v. Board of Education, there is a Prigg v. Pennsylvania (1842) holding that northern states could not provide statutory protections for free residents of color accused of being fugitive slaves.

When thinking about the role of courts, lawyers, legal scholars and citizens should not automatically treat Brown as a paradigm and such cases as Dred Scott, Hepburn, Pollock and others as anomalies. Seen from broader history perspective, Brown is far more anomalous than Dred Scott. Throughout most of American history (and in many new constitutional democracies), progressives sought legislature victories and played defense in court. The Supreme Court, reformers understood, was far more likely to declare unconstitutional legislative efforts to promote political equality than prevent elected officials from discriminating unjustly. Times may change, but a good case can be made that, by protecting white persons from affirmative action programs and affluent Americans from campaign finance restrictions, the contemporary Supreme Court is merely reverting to form.

Posted 2:25 PM by Mark Graber [link] (13) comments

Haven't We Seen This Film Before?

Marty Lederman

There's a UC Berkeley alum in my household, and so we're frequently inundated with promotional materials from the University.

Last week we received the latest issue of The Promise of Berkeley, a big glossy production designed to tout the accomplishments of members of the University community. The Spring issue includes a piece promoting the close connections between Cal Berkeley and the U.S. government here in D.C. "A number of Berkeley's faculty have held positions in past presidential administrations or worked closely with presidential candidates," it boasts. And so the Promise of Berkeley asked six faculty members -- "three from each side of the aisle" -- to "reflect on their time in Washington, what's at stake in the 2008 presidential election, and what Berkeley means to them."

The Dems profiled are, not surprisingly, Chris Edley, Bob Reich and Janet Yellen. The editors apparently had a more difficult time finding prominent Republican officials on their faculty: The chose Dan Schnur (a Poli Sci lecturer who worked on McCain's 2000 primary campaign), Sandy Muir (a speechwriter for Bush 41), and, you guessed it . . . John Yoo.

Now, it's one thing to decide not to challenge a tenured professor's job security, notwithstanding substantial evidence that he facilitated war crimes (a decision of Chris Edley's that I supported here). But it's quite another to give that faculty member pride of place -- because of his government service -- in a publication intended to encourage alumni contributions by stressing the laudable public service of one's faculty members. Did the editors of The Promise of Berkeley really think that including John Yoo in their brochure would result in more robust alumni donations? My sense is that this is tone-deafness of a very high order -- but what do I know?

In any event, the editors asked John whether he would consider another stint in Washington, and this was his response:

Public service is an important responsibility, especially for those of us who are members of a public university. Moving to Washington for a few years can be very disruptive to a professor’s research plans and personal life. But I think that it is important we make a contribution when our government calls. Personally, I would not want to hold again any of the jobs that I have held, not because I disliked them, but because it would feel like watching the same movie again.

So, a question for our readers: Which movie best captures the Office of Legal Counsel between September 2001 and September 2003? (Perhaps I'll list some of the cleverer suggestions here in the text.)
Posted 10:12 AM by Marty Lederman [link] (32) comments

It's Come to This

Marty Lederman

In response to an ACLU FOIA request for the CIA Inspector General report on interrogation techniques, virtually the only thing the Bush Administration is willing to disclose to the public is that we waterboarded certain detainees. Everything else is redacted. Do they not appreciate how chilling and absurd this is -- that the only thing they're willing to acknowledge is that they committed the most serious war crimes?

Quite the legacy.
Posted 8:48 AM by Marty Lederman [link] (10) comments

How We Got Into Iraq: A Recap

JB

In response to the controversy over Scott McClellan's new book What Happened, which disclosed that the Bush engaged in a propaganda campaign to push the United States into war, Warren P. Strobel and Jonathan S. Landay lay out what actually happened, using sources and articles available at the time.

The media, they point out, have little excuse for having been misled either about the Administration's motives or about the strength of the case for war. The evidence was available; but the media simply didn't want ask the Administration tough questions about its war plans in the wake of the 9/11 attacks. At the moment when a strong independent media was necessary, most of it failed the country. Many members of Congress refused to support the Administration's call for war, and protests were held around the country. But the press downplayed the opposition.

Now that former Bush Administration officials like McClellan are attempting to salvage their reputations with disclosures of what happened, the mainstream press professes to be shocked and surprised at being taken in by a cynical and dishonest Administration. Surely the media's spinelessness in the first four years of the Bush Administration is an equally important scandal.


Posted 7:57 AM by JB [link] (78) comments

Activist lawyers and China's trouble with rule of law

Lauren Hilgers

Two short weeks after Human Rights Watch published a report on China’s lawyers, called “Walking on Thin Ice,” China’s government released a list of priorities for 2008. The main focus of the NPC Standing Committee, according to a Xinhua report, will be improving “the socialistic legal system with Chinese characteristics.”

For China’s activist lawyers, this is not an encouraging statement. As the HRW report notes, Beijing has been highlighting the need for what they call socialist law in the past few years, emphasizing social stability over judicial independence. The campaign’s primary target is the country’s growing number of lawyers—they may be necessary to the development of the country's legal system, but some have proved to be a thorn in the side of China’s leadership.

The government is not all talk—its stance is reflected in an ever-tightening grip on the lawyers who take on politically sensitive cases. In one recent example, the lawyer Teng Biao led a group offering to represent the Tibetans who were arrested in relation to the riots that unfolded in March. Two weeks ago, those lawyers woke up to find their licenses to practice law, set to expire at the end of this month, will not be renewed.

The HRW also cites Chen Guangcheng, the blind “barefoot lawyer of Linyi,” and Gao Zhishen, a lawyer who volubly defended Falun Gong practitioners as prominent examples of the recent crackdown. Gao's current whereabouts are unclear; it was reported last September that he had been detained by the police. In 2006, Chen was convicted of damaging property and organizing a mob to disrupt traffic and sentenced to four years in prison.

At the core of the struggle between the government and China’s weiquan, or “rights protection,” lawyers lies China’s constitution and the much-celebrated rule of law. While wiequan lawyers take up causes that range from consumer rights to representing dissidents, the underlying assumption of all their arguments is the same: Chinese leaders are answerable not only to the Communist Party, but to the law and to the constitution.

This presents quite a conflict for China’s current leadership. To them, the constitution is a potentially restrictive document, and Chinese leaders have made no pretense of adhering to all its limitations. In a socialist state, the constitution is also subject to frequent changes. Socialist society is expected to evolve, and as the State represents the whole of the Chinese people, it is the State’s responsibility to update the framework of governance as they did in 1975, 1978 and 1982. It is the state that gives legitimacy to the constitution, not the other way around.

Here, however, China’s leaders are now running into trouble. In a near-constant crisis of legitimacy, the Communist Party has been relying more and more on the legal system to cement its own authority. Adhering to the rule of law and the constitution, said Jiang Zemin in a 1997 address to the National People’s Congress, ensures, “institutionally and legally, that the Party's basic line and basic policies are carried out without fail, and that the Party plays the role of the core of leadership at all times, commanding the whole situation and coordinating the efforts of all quarters.”

Ten years later, Hu Jintao echoed Jiang’s sentiments in his own NPC address. “The rule of law will be carried out more thoroughly as a fundamental principle, public awareness of law will be further enhanced, and fresh progress will be made in government administration based on the rule of law,” Hu promised.

These promises, along with laws that purport to rein in local governments, have helped set the stage for weiquan lawyers to demand greater rights for citizens and press for rule-of-law. These lawyers generally stay carefully within the confines of Chinese law and accept the current political system. With an increasing number of laws, weiquan lawyers have a growing arsenal.

Many lawyers maintain their primary focus on rights guaranteed by individual laws--the constitution itself is still considered non-judicable and judges remain reluctant to cite the constitution in their rulings. Some lawyers, however, appeal to constitutional rights by taking advantage of a section of China’s Legislation Law and sending requests to the NPC for constitutional reviews of certain laws and practices. (This practice is discussed at greater length in a forthcoming book by Stephanie Balme and Michael Dowdle, “Constitutionalism and Judicial Power in China.”)

With a growing number of lawyers and rising popular awareness of rule-of-law, China’s government is beginning to feel the pressure of the constitution weighing upon it. “Even if Statist Socialism prevails, the constitution is likely to play a more important role as a baseline for measuring the legitimacy of state actions,” says Randall Peerenboom in his book “China’s Long March Toward the Rule of Law”

“To maintain credibility, the ruling regime will have to take the constitution more seriously,” he says.




Posted 7:15 AM by Lauren Hilgers [link] (7) comments

Joe Lieberman, Islamist Terrorism, and YouTube

Neil Netanel

I thank Joe Lieberman for highlighting a point I made in an earlier post: new media monopolies raise some of the same free speech concerns as monopoly and oligopoly in traditional media.

Senator Lieberman recently demanded that Google's YouTube take down hundreds of videos produced by al-Qaeda and other groups that the State Department has designated as Foreign Terrorist Organizations. YouTube refused to comply with his broad request, but did review the videos to determine whether they violated its own guidelines, which prohibit hate speech and graphic or gratuitous violence. It then took down 80 videos, but left others up. Lieberman responded that YouTube's actions were insufficient, that "[v]ideos produced by al-Qaeda and al-Qaeda affiliates showing attacks on American troops remain on YouTube's website and ... should be taken down immediately."

The New York Times castigated Lieberman as a "would-be censor." Lieberman responds today in a letter to the editor: "The bipartisan staff of the Senate committee I head, which oversees homeland security matters, has documented that Islamist terror networks rely extensively on the Internet in their continuing war against the American people.... The peril here is not to legitimate dissent but to our fundamental right of self-defense. For those of us in government, protecting Americans is the highest responsibility. Asking private parties operating public communications systems to assist that effort is common sense."

I must confess that my initial, gut reaction was one of support for Lieberman. I am bewildered by those -- including many on this blog -- who seem to think that the worst thing about our post 9-11 world is not the very real threat of a repeat of 9-11 or worse, but the incursion on civil liberties, SOME of which is an inevitable part of homeland security. (Yes, yes, I realize the critical questions are how much incursion is truly necessary, at what price, and who has authority to decide.) And Lieberman is absolutely right that terrorists use the Internet to recruit, incite violence, raise funds, and give instructions. It makes the argument for civil liberty and free speech far too easy to pretend that's not so. The Times makes that very move in its criticism of Lieberman. Its editorial begins: "The Internet is simply a means of communication, like the telephone, but that has not prevented attempts to demonize it — the latest being the ludicrous claim that the Internet promotes terrorism. " Yet today's Times features a front page story about a self-styled "female holy warrior for Al Qaeda," who makes highly effective use of the Internet to "bull[y] Muslim men to go and fight."

The reason Lieberman is wrong, of course, is not that the terrorist organization videos are innocuous, but that, as history has repeatedly taught us, we can't generally trust government to distinguish between truly dangerous speech and speech that government functionaries or ideologues think is dangerous. McCarthyism, the Pentagon Papers, the Bush Administration provide ready examples. And as Seth Kreimer has cogently underscored, government too often bullies mass media and other speech intermediaries to act as its censor.

Media are inevitably somewhat vulnerable to this kind of government bullying, and new media like Google, which now lobbies government on issues ranging from network neutrality to the wireless spectrum, is no exception. As a result, while no guarantee, the available of commercially viable alternative sources of information and opinion presents a vital bulwark against this kind of indirect censorship. If YouTube caves and too readily removes videos that Senator Lieberman finds dangerous or repugnant, our First Amendment interest in robust debate and expressive diversity is best served by the availability of such videos on other readily accessible, easily locatable, and commercially viable Web sites.

I emphasize "readily accessible, easily locatable, and commercially viable." I don't think it's enough for dissenting speech to be relegated to the Internet equivalent of street corner pamphleteers, seen and heard by very, very few. Rather we are best served by having several competing YouTubes. If one too readily caves, perhaps the others will resist and castigate the caver for doing so.




Posted 1:48 PM by Neil Netanel [link] (86) comments

Larry Tribe on Liberty and Equality

Guest Blogger

Larry Tribe

I’m delighted that the symposium at the University of Tulsa Law School honoring my work triggered this intriguing exchange between two of the most exciting contributors to that event, Heather Gerken and Kenji Yoshino. I have followed their continuing conversation with great interest and find myself, perhaps unsurprisingly, in broad agreement with both of them except insofar as they appear to disagree with each other.

Kenji is undoubtedly right that the “too many groups” problem will worry the current Supreme Court and its plausible successors for the foreseeable future, and that this worry puts something of a ceiling on realistic aspirations and thus on useful strategies for making progress along the equality axis. And Heather is undoubtedly right that the “too many individuals” problem would give the same Court and its successors qualms that prevent the “one right at a time” strategy from entirely solving the problems plaguing the “one group at a time” strategy. The very things about the language of universalism that make the “liberty” strategy appealing to some (like me) no doubt make it frightening to others.

But it seems to me that the resolution of this puzzle is to be found not in dividing to conquer but in uniting to assuage. Michael Tomasello, co-director of the Max Planck Institute for Evolutionary Anthropology, has a lovely little piece in The New York Times Magazine for this May 25 (at p.15), “How Are Humans Unique?” Asking that ubiquitous question, he defends an answer focused less on our distinctive tool-making and concept-manipulating capcities than on our quite unique skills for social learning, communicating and construing the intentions of others. Tomasello makes a strong case for the proposition that it is because human beings “are adapted for such cultural activities — and not because of their cleverness as individuals — that human beings are able to do so many exceptionally complex and impressive things.” He adds that, “[o]f course, human beings are not cooperating angels; they also put their heads together to do all kinds of heinous deeds. But such deeds,” he observes, “are not usually done to those inside ‘the group.’ Recent evolutionary models have demonstrated what politicians have long known: the best way to get people to collaborate and to think like a group is to identify an enemy and charge that ‘they’ threaten ‘us.’ . . . The solution — more easily said than done — is to find new ways to define the group.”

Is it too audacious to hope that a strategy can proceed by cautious steps that sometimes speak the language of groups (when we are ready as a culture to enlarge the group we think of as “us”) but at other times speaks the language of rights (when we are ready as a culture to perceive a right as universally appealing), eschewing any a priori preference between the two? Isn’t that the very prospect that makes the Obama candidacy so exciting?

Like Heather, I’d rather see gay-rights cases stand with Brown than with Roe, but not for any readily generalizable reason. For me, what has always made Roe v. Wade uniquely difficult, indeed sui generis, isn’t the character of the liberty the woman in the case must claim but the nature of the countervailing interest or right that the challenged exercise of her liberty would jeopardize, a feature that is dramatically less present in Lawrence and in the same-sex marriage cases than it was in Roe.

The strategy that for me promises the greatest glimpse of the infinite is a strategy that resists rigid compartmentalization and that reaches across the liberty/equality boundary to recognize the ultimate grounding of both in an expanding idea of human dignity.

Posted 11:22 AM by Guest Blogger [link] (10) comments

Which is More Likely: Overturning Roe or Attacking Iran?

JB

Following up on Mark's previous post, I think the correct analysis of why a Republican dominated court is unlikely to overturn Roe is not that the Justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with Presidential motivations in nominating particular Justices to the Supreme Court. That is, if you focus primarily on the motivation of Justices after they get on the bench you are looking in the wrong place for an explanation.

Since the failure of the Bork nomination in 1987, it has become clear that Republican Presidents and the party itself would pay a political cost if the Supreme Court appeared ready to overturn Roe v. Wade. Hence they have chosen people who were likely to weaken Roe but not directly overrule it. Ronald Reagan, for example, appointed Anthony Kennedy as a compromise candidate who could win easy confirmation. Kennedy has turned out to be far more moderate than Robert Bork would likely have been, and indeed, one can hardly imagine Robert Bork writing either Casey or Lawrence v. Texas.

The exception to this general Republican strategy of appointing Justices who would weaken but not overturn Roe was Clarence Thomas. However, President George H.W. Bush calculated (correctly) that the Democrats would not have the nerve to reject an African-American nominee to replace Thurgood Marshall.

Justice Roberts and Alito went out of their way to avoid saying that they would overturn Roe, and Roberts even described Roe as settled law. This does not mean that Roe will never be overturned (although I predict that it will not be). Rather, it suggests that Republican Presidents have chosen not to invest resources in appointing people who will overturn Roe, and by and large they have gotten what they sought: a Court that has not overturned Roe but has cut back on the decision in significant respects. Indeed, I suggest, they have adopted a reverse litmus test-- only appointing people they predict will hollow out Roe rather than directly overturning it.

Which brings us to Mark's point. What will such a Court, constituted as it is, do in the period in which Republicans are out of power in both the Presidency and Congress? My prediction is that they will do pretty much what they have already been doing-- weaken Roe but not overturn it, if, indeed, any abortion cases come to the Court in the next few years. Certainly it is unlikely that Anthony Kennedy, having staked his professional reputation on the Casey compromise, will vote to overturn Roe now. And without Kennedy's vote, there are not five votes to overturn Roe.

If John McCain is elected, I predict that he will also follow the Presidential strategy of a reverse litmus test, appointing Justices who will keep the shell of Roe but hollow out its core. For the time being, Roe will survive. Of course, if the Democrats win the White House, they will probably appoint strong defenders of the abortion right. Either way, I predict that Roe will not be overturned in the foreseeable future.

Once we recognize that the correct focus is Presidential behavior and not judicial behavior, The question Mark asks about what Republicans will do can be refocused: It is not what Republican-appointed Justices will do when the party has nothing leftss to lose, but rather that Republican Presidents might do in such a scenario.

My guess is that with the Republican brand badly tarnished, and with the Democrats likely to control the Presidency and both branches of Congress for the next several years, the people to worry about are not the Justices, but President Bush and Vice-President Cheney. Cheney has for some time urged a preemptive attack on Iran. The Republicans will not have to clean up the mess that such an assault would create, and it might well force the hand of the next President to follow the bellicose policies of Messrs. Bush and Cheney. Although I predict that President Bush won't do it, I would be far more worried about an attack on Iran than an attack on Roe.

Posted 10:13 AM by JB [link] (7) comments

"Freedom's Just Another Word for Nothin' Left to Lose"

Mark Tushnet

George Packer's article in the New Yorker on "The Fall of Conservatism" reports that "most" of the younger conservatives he spoke with "predicted that Republicans will lose the Presidency this year and suffer a rout in Congress."  He quotes Republican strategist Ed Rollins:  "Today, if you're not rich or Southern or born again, the chances of your being a Republican are not great."

Suppose these predictions and analyses are correct.  What are the implications for the Supreme Court and especially for the continued vitality of Roe v. Wade?


Posted 2:16 PM by Mark Tushnet [link] (55) comments

Orphan Works

Neil Netanel

In a New York Times op-ed last week, Larry Lessig denounced a pending major reform of copyright intended to solve the problem of "orphan works." Yet Public Knowledge, a leading public interest advocacy group normally aligned with Lessig on such issues, welcomes the proposed legislation (with a couple tweaks). What's this all about?

"Orphan works" are works whose copyright owner cannot be found without expending prohibitive search costs. Orphan works have become a serious impediment to a broad range of expression. As the U.S. Copyright Office points out:

Scholars cannot use the important letters, images and manuscripts they search out in archives or private homes.... Publishers cannot recirculate works or publish obscure materials that have been all but lost to the world. Museums are stymied in their creation of exhibitions, books, websites and other educational programs, particularly when the project would include the use of multiple works. Archives cannot make rare footage available to wider audiences. Documentary filmmakers must exclude certain manuscripts, images, sound recordings and other important source material from their films.

The inability to locate copyright owners also prevents book archive projects like Google Book Search and the Open Library from displaying the full text of all but a fraction of in-copyright books.

The orphan works problem is due largely to sweeping changes in copyright law in the past 30 years. Copyright used to be an opt-in system. Authors had to claim copyright by affixing a copyright notice on copies of published works and were required to register for copyright with the Copyright Office. In addition, copyright lasted for only 28 years from publication unless the copyright owner filed for renewal for a second 28-year term. The vast majority of works were not renewed: A 1961 Copyright Office study found that fewer than 15% of registered copyrights were renewed, and for books the figure was only 7%.

Today, no copyright notice, registration, or renewal is required, and copyrights last for the author's life plus 70 years. Moroever, unlike property rights in land, copyright transfers need not be recorded. As a result, there is no central registry for searching copyright title. Finally, copyrights are now infinitely divisible. A novelist can assign the North American trade book rights to A, the North American paperback rights to B, the North American electronic distribution rights to C, the North American sequel rights to D, the North American serial rights to E, the North American motion pictures to F, the rights in other countries to other entities, and so on. So it is not enough to know “who owns the copyright.” Rather a user must know who owns the particular right that the user needs to license.

The legislation working its way through the House and Senate proposes to address the orphan works problem by providing that a copyright infringer who undertakes a “diligent,” but unsuccessful effort to locate the copyright owner must only pay “reasonable compensation” if the copyright owner shows up. To determine whether the infringer has met the test of “diligent effort,” a court must consider a number of factors, including whether the infringer’s search was “reasonable and appropriate” under the circumstances and whether “the infringer employed the applicable best practices maintained by the Registrar of Copyrights.” Libraries, museums, nonprofit educational institutions, and other specified entities need not pay any compensation so long as they make the requisite diligent effort to find the copyright owner. No infringer may continue to distribute the work without permission after the copyright owner appears. However, users who have recast, transformed, adapted, or integrated the infringed work with “a significant amount of the infringer’s original expression," such as incorporating a short clip into a documentary film, may continue to use the work upon payment of reasonable compensation for that use and proper attribution of the copyright owner.

Larry Lessig rightly points out the diligent effort requirement imposes a significant and costly burden on many potential users of orphan works. Indeed, given the nebulous, multifactor, case-by-case test for determining whether a search meets the diligent effort test, many would-be users, ranging from documentary film makers to digital archives, will simply desist from incorporating or copying orphan works rather than face the risk of infringement damages and injunction. Lessig thus proposes that, with a couple exceptions, copyright owners be required to register their work after 14 years to continue to receive copyright protection. By putting the onus on copyright owners to register, users can easily look to central registries to find who, if anyone, owns the copyright they need to license. Lessig, in essence, proposes a step back in the direction of the opt-in copyright that prevailed until the 1976 Copyright Act.

Lessig’s proposal makes eminent sense, although even it does not solve a problem that lies adjacent to orphan works: the frequent inability under current law to discern whether old copyright transfers and license agreements assign the rights to exploit the work in a new media unknown at the time of the transfer and thus whether the transferor or transferee has the authority to grant a license to a third party to use the work in such a new media. For example, for millions of books it is unclear whether the author or publisher holds the electronic distribution and display rights. Accordingly, Google can’t clear those rights to display the text in Google Book Search absent agreement of both the author and publisher, or their successors, or a judicial determination.

Public Knowledge’s embrace of the proposed legislation strikes me as a position more in touch with the grim reality that Lessig’s proposal stands little chance of enactment and that the proposed legislation might be better than leaving the orphan works problem as it is today. Yet to my mind the proposed legislation would not be much an improvement – and, if enacted, will cut off possibilities for further reform – unless it is modified to reduce the uncertainty of the diligent effort test and the burden imposed on those who must search for copyright owners. The proposed legislative framework should require that copyright owners bear some responsibility for making themselves readily locatable. At the very least, the legislation should providing that copyright owners who fail to register their copyrights and record copyright transfers on a publicly available, searchable digital registry bear the burden of proving that the infringer failed to make the requisite diligent effort.


Posted 11:23 AM by Neil Netanel [link] (6) comments

Text and Principle: Further Thoughts

Stephen Griffin

Thanks to Jack for responding so quickly to my post. I’ll try to keep these further thoughts on a relatively general level, because I don’t mean to respond point by point. Jack makes clear that principles do not have to have a historical pedigree as long as the original semantic meaning of the text is preserved. This clarification makes me think of something that bothered me as I read the Constitutional Commentary symposium. In the world of text and principle, what is the role of amendments and how do you tell when you need one? You might say to alter the semantic meaning of a piece of text (or a Court opinion) we don’t like anymore, but actually there are few amendments that do that. Another possibility is that we add amendments when we need new principles, but that is perhaps made unnecessary by the capaciousness of constitutional principles, a quality that Jack notices. Here we encounter some arguments well known in constitutional history such as: we don’t need the bill of rights because such guarantees were structurally built into the 1787 Constitution, we don’t need the thirteenth amendment because Congress already has the power, we don’t need additional rights guarantees as long as the Constitution is informed by the principles of the Declaration of Independence, and so on.

I believe such arguments rest on a fallacy I call immanence (but I don’t claim yet that Jack commits it). People who believe in immanence tend to see the Constitution as a collection of super-powerful principles capable of handling all subsequent constitutional change. (Another example would be the argument that we didn’t need the 14th Amendment because its section 1 principles were immanent in the 13th (or the D of I)). What’s wrong with immanence? Given the generality of parts of the text and the principles behind it, it would not be too big a step to conclude that we never need amendments. But that can’t be right. History shows that sometimes the resolving power of even very capacious principles (“life, liberty, and the pursuit of happiness”) either runs out or is simply unpersuasive. At that point, we need to define truly new principles and have them recognized in our founding document.

If we reject immanence, we must be able to say something about when amendments are necessary. So why did we need amendments during the New Deal? Again, many New Dealers, including FDR, either assumed or grudgingly accepted (prior to 1937) that amendments were required. Part of the answer is that there were doctrines promulgated by the Court that had to be cut down. But doctrines are founded on principles. I didn’t mean to suggest that the principles that cut against the New Deal came from 1868. As I believe Jack makes wonderfully clear, principles can morph and be updated as circumstances change. By the 1930s, there were presumably no living Jacksonians. But the descendants of Jacksonian (and earlier) principles were very much alive, as Howard Gillman and other historians have shown. They had been altered of course, but what the New Deal contemplated was too radical a break. Amendments were needed, but we didn’t get them. Again, I’m not raising the black flag of illegitimacy. The interesting question is how the New Deal achieved legitimacy (which it did) without amendments.

A point of clarification: when I say the New Deal was inconsistent with prior principles founded in text and history, I am not talking about expectations. I sense this is a tricky point generally, but I don’t believe (to take one example) the framers of the 14th amendment had expectations about the constitutionality of federal and state laws regulating conditions of labor. But they did believe in principles which could not be stretched to cover the New Deal. And of course there were some prior principles from even the founding era that could be cited in favor of the New Deal as FDR did. Problem is, there were many more powerful counter-principles, principles that for understandable reasons, FDR had no sympathy with and never discussed. He had rejected them.

Can the idea of a constitutional construction save the day? I’m afraid I’m still unclear about how one goes about organizing or recognizing a construction. But here is a crucial point. If a construction alters or rejects previous principles thought fundamental, then we are talking about an amending construction and that supports the general theory of constitutional change I have advanced. If a construction cannot be constitutional without being consistent with prior principle, then the legitimacy of the New Deal and other important periods of informal (non-Article V) change cannot be explained. And why is this important? The idea of the New Deal as a sharp break with the past, as a de facto, jerry-built “amendment” fits much better with the subsequent history of constitutional law and theory than does a theory based on adaptation, one that essentially presents a narrative of continuity. Theory after the New Deal doesn’t look much like the theory that went before. In fact, constitutional theory assumes its modern form only with the New Deal: we get the emphasis on the countermajoritarian difficulty (here I disagree with Barry Friedman), the agonizing over whether the Court has any role in a democracy, the rational basis test, the presumption of constitutionality, and the quest, so ably first described by Ed Purcell, for a new value consensus. These theoretical upheavals are ultimately explainable only as a consequence of a sharp break with prior practice. All that requires explanation and I doubt it can be done through a theory of construction.

Posted 6:39 PM by Stephen Griffin [link] (19) comments

Why the sex discrimination argument failed in California

Andrew Koppelman

It remains puzzling why the California Supreme Court, in its recent same-sex marriage decision, rejected the most formally powerful argument for its result: the argument that denying licenses to same-sex couples is sex discrimination. The weakness is made clear in this recent column by Steve Chapman, who writes: “while the California Constitution forbids discrimination on the basis of ‘sex, race, creed, color, or national or ethnic origin,’ it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.” As I’ve explained earlier, the Court had to work very hard to reject the sex discrimination argument, using tired old arguments that had been used long ago to defend miscegenation laws: since both blacks and whites [both men and women] are equally burdened, there’s no discrimination.

Why did the court reject the cleaner, more theoretically elegant argument in favor of the more convoluted one that the law discriminated on the basis of sexual orientation (which it didn’t; no clerk ever asked applicants their sexual orientation, while they did need to know whether each applicant was male or female)? It insisted that calling the relevant discrimination sexual orientation discrimination was more “accurate” and “realistic.” Why did it do that?

Here’s what the court wrote:

“a statute or policy that treats men and women equally but that accords differential treatment either to a couple based upon whether it consists of persons of the same sex rather than opposite sexes, or to an individual based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, is more accurately characterized as involving differential treatment on the basis of sexual orientation rather than an instance of sex discrimination, and properly should be analyzed on the former ground. . . . [I]n realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual's sexual orientation.”

In the interracial marriage context, this argument would have sounded very strange. Suppose the Supreme Court, when it struck down laws against interracial marriage in 1967, had adopted this kind of reasoning. Instead of holding that the prohibition was race discrimination, the court would have focused on the group specifically burdened by the law, people who were in interracial couples. Call them “miscegenosexuals.” Now you can see what the reasoning of the California court would look like in this context:

“a statute or policy that treats blacks and whites equally but that accords differential treatment either to a couple based upon whether it consists of persons of different races rather than the same race is more accurately characterized as involving differential treatment on the basis of being a miscegenosexual rather than an instance of race discrimination, and properly should be analyzed on the former ground. . . . [I]n realistic terms, a statute or policy that treats different-race couples differently from same-race couples does not treat an individual man or an individual woman differently because of his or her race but rather accords differential treatment because of the individual's miscegenosexuality.”

The argument would not even have been a bad argument. Certainly members of interracial couples have been subjected to vile and unjust treatment throughout American history. They were prime candidates for judicial protection. But a decision written this way would still have been missing something important.

The difference between the two cases, and the reason the hypothetical is so bizarre, is that everyone understands that the miscegenation prohibition is all about maintaining the structure of racism, so that the idea of a “miscegenosexual” never even occurs to anyone, and indeed strikes most people as weird and racist. I don’t understand the resistance to the idea that the homosexuality taboo is about sexism. Homosexuality and deviation from gender norms (which, of course, are relentlessly hierarchical) are so tightly connected with each other in popular culture that each is normally and easily taken as a marker for the other. A “faggot” or a “dyke” is a person who fails to conform to normal gender norms; the term is routinely applied to people without regard to their sexual behavior.

The court’s reluctance is, I think, evidence that Jack Balkin is right about the dependence of the law on the wider culture in order to determine the crucial question of which arguments are within or outside the bounds of legitimate argumentation. The sex discrimination argument is unfamiliar to people. A few of us have made it in academic journals, but it hasn’t been trumpeted much in the popular culture, and so judges, who one might have expected to be influenced primarily by the soundness of legal argumentation as such, shy away from it. It’s not enough to craft good arguments. You need to be out there, working the media and making these claims repeatedly, thereby making them familiar.

In the end, it may not matter, except for a few law geeks who care about the details of legal argumentation, whether the court uses the best arguments or not. The argument the Court did use, that discrimination against gays is inherently suspect, is good enough. Almost no one reads judicial opinions anyway. If the taboo in question really functions to reinforce sexism, then relaxing the taboo will weaken at least the existing forms of sexism whether courts realize it or not. If the Supreme Court had referred to “miscegenosexuals” in its reasoning in 1967, the taboo on interracial marriage would still have been fatally weakened. On the other hand, today the opinion would look a little silly, and we’d think that it had missed the most important point. That’s not the worst thing in the world, but it’s not a flattering reflection on the court.


Posted 2:05 PM by Andrew Koppelman [link] (23) comments

Heyman, FREE SPEECH & HUMAN DIGNITY

Mark Graber

Theorists and pragmatists in the American legal academy fight over the content of constitutional law as fiercely as do liberals and conservatives or Republicans and Democrats. Grand theorists insist that constitutional debates are best settled by reference to such broader principles as originalism or “all men are created equal.” Pragmatists respond that such matters are better settled by empirical investigations aimed at establishing the costs and benefits of particular policies or institutional arrangements. Free Speech & Human Dignity boldly champions the theorist perspective. Steven J. Heyman’s exceptionally accessible perspective on the First Amendment contends that fundamental constitutional problems are best resolved through a return to natural rights thinking. “Free speech,” he maintains, should be justified “primarily on intrinsic grounds, as a right of human nature and republican citizenship.” The analysis that follows is an important addition to the literature on the First Amendment, even if unlikely to convert more empirically oriented constitutional thinkers.

Free Speech contends that pragmatism has corrupted First Amendment analysis. The framers, Heyman contends, understood freedom of speech to be one of the natural rights persons enjoyed by virtue of being human. Rooted in human nature, natural law both provided justifications for broad expression rights and the limits to that liberty. “On the classical libertarian view,” Heyman writes, “rights had inherent limits, which derived from the nature of a particular right, its place within the larger framework of rights, and the duty to respect the rights of others.” Progressives at the turn of the twentieth century replaced this original natural rights perspective with one rooted in various social interests, most notably “an empirical judgment as to the best means of promoting the social good.” This transformation has plagued subsequent constitutional analysis. Pragmatists must consistently compare apples to oranges. Free speech is balanced against other interests without any metric to determine appropriate weights. As Free Speech notes, the social good provides “an indeterminate standard for deciding between competing interests.”

Returning to natural rights, Heyman contends, will enable justices and commentators to avoid these problems. The natural right to free speech is self-limiting. Persons have a right to free speech because free speech is a central aspect of “human dignity and autonomy.” Human dignity and autonomy, in turn, entail respect for other rights, “including personal security, privacy, reputation, citizenship, and equality.” When speakers threaten the natural rights of other persons, by threatening them with physical harm, wrongly destroying their reputation, or denying their status as equal persons, they are no longer exercising a free speech right. “If liberty is to exist,” Heyman insists, “it must be bounded by a duty to refrain from interfering with the equal liberty of others.” These inherent limits on speech justify legislation that regulates expression, as long as regulations are artfully drawn and appropriately balance the various rights at stake. Significantly, Free Speech insists, theorists balance better than pragmatists. Pragmatists weigh all the costs and benefits of expression, considering speech “as valuable “ only “insofar as it promotes social welfare.” Theorists conduct a more nuanced balancing test, permitting “speech to be restricted only when necessary to protect another right that, under the circumstances, is more valuable as an aspect of human freedom.”

Heyman’s analysis of the natural right to free speech is intelligent, clear, and appropriately modest. Free Speech offers a theory deeply rooted in eighteenth century American history that provides a framework for thinking about free speech problems at the turn of the twenty-first century. The analysis explains why speech which advocates crime ought to be protected, while speech that targets individuals from criminal conduct is not. Heyman would regulate more pornography than the American Civil Liberties Union, but not as much as prominent radical feminists. While the “choice to make or view sexual material falls within the notion of individual autonomy.” Free Speech contends that “violent pornography infringes the rights of those it portrays to recognition as human beings.” Heyman cheerfully acknowledges that this analysis is tentative. Natural rights best structures thinking about free speech, and is not a formula for generating uncontested right answers to all questions about the First Amendment. His “overriding goal is to show that the rights-based theory provides a useful framework for debating difficult issues.”

Whether the theorist has triumphed over the pragmatist is not entirely clear. At times, the natural rights analysis seems identical to standard interest analysis. Heyman admits as much when he asserts that Justice Stephen Breyer’s “opinion may be regarded as a model of how the rights-based approach would apply to a case like Bartnicki [v. Vopper (2001)],” even though “Breyer uses the language of interests rather than of rights.” Nothing apparently is lost in the translation when the costs and benefit associated with the public transmission of private conversations are converted from interests to rights. Heyman’s recognition of group-based rights has the potential to further muddy the distinction between pragmatist and natural rights conceptions of expression rights. Free Speech declares, “the liberal tradition views people as having rights not only as individuals but also as a community.” Among these rights, the discussion of pornography asserts, is the right to a certain kind of “public environment.” Presumably clean streets are one aspect of this natural, communal right. If so, majorities protect the natural rights of members when they restrict speech that may present a clear and present danger of litter. The right to free speech may be more important than the communal right to clean streets. Nevertheless, the rights balancing analysis in these circumstances seems identical to the interest balancing analysis. At least, Heyman in future works might want to focus more on whether rights language is likely to make a difference in practice or in theory.

Still, the pragmatist has related problems that are not easy to overcome. Free speech rights must have some limits, otherwise all human conduct might be constitutionally protected as a form of self-expression. Heyman and other theorists correctly recognize that these limits are likely to be derived from the same principles or theories that best justify protections for free speech. A liberal theory will have liberal limits to free speech, just as some other kind of theory will have limits intrinsic to that theory. Interest analysis tends to smuggle in a good deal of theory. Balancing free speech against some other interest requires some kind of normative theory that generates appropriate weights. Heyman has presented a scholarly account and justification of the values he believes ought to animate First Amendment jurisprudence. Critics need to provide an alternative theory rather than merely carp on the fundamental limits of all grand theories of constitutional law.

Posted 11:07 AM by Mark Graber [link] (3) comments

The Roberts Court and Thurgood Marshall's Legacy

Mary L. Dudziak

This op-ed appeared on History News Network and in the Los Angeles Daily Journal, and is cross-posted on the Legal History Blog:

The recent anniversary of Brown v. Board of Education falls nearly 100 years since the 20th century's greatest civil rights lawyer, Thurgood Marshall, was born (July 2, 1908). Brown was a milestone in the nation's civil rights history; the case also christened Marshall, the plaintiff's lead attorney, as "Mr. Civil Rights." Not long after, Marshall would be eclipsed by a new generation of civil rights leaders. His greatest disappointment, however, was to see the court that decided Brown turn away from his legacy.

The Supreme Court's dismantling of Brown has been on display most recently in a ruling last year involving school districts that adopted voluntary plans designed to maintain racial diversity in their schools. In Parents Involved in Community Schools v. Seattle School District last June, the court reviewed such a plan under its most stringent constitutional test: strict scrutiny. The efforts of a school board to keep schools integrated were scrutinized in the same way as the efforts of past school boards to keep schools segregated, as if they were the same. Facing this steep hurdle, the plan was struck down.

The court's approach was not inevitable, but a path in this direction was laid years earlier, when Marshall was on the Court.

Regents of the University of California v. Bakke, the Court's first affirmative action case, took up the question of whether racial classifications intended to remedy discrimination should be measured by the same standard as racial classifications meant to harm racial minorities. The University of California's program was faulty, but in Bakke and later cases, the Court's increasingly broad use of strict scrutiny meant that the Court, and not the political branches, would set the terms of efforts to undo decades of discrimination. In many contexts, it became illegal to take race into account even in efforts remedy discrimination.

The Bakke decision prompted a bitter dissent from Marshall, the nation's first African-American justice. "Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery," he wrote. "The slave was deprived of all legal rights," and "the system of slavery brutalized and dehumanized both master and slave." The Civil War changed things but, Marshall argued, freedom did not bring African-Americans equality. Instead, "slavery was replaced by a system of laws which imposed upon the colored race onerous disabilities and burdens ... to such an extent that their freedom was of little value." Tracing the long and difficult history of race discrimination, Marshall concluded that in 1978, the position of African-Americans was "the tragic but inevitable consequence of centuries of unequal treatment." Meaningful equality remained "a distant dream."

For Marshall, this context mattered when the Court took up government efforts to remedy race discrimination. "In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order," he argued. "To fail to do so is to ensure that America will forever remain a divided society." Taking race into account to remedy discrimination was not suspect. Instead it was an imperative.

Marshall's argument in Bakke belies the current Court's efforts to wrap its very different vision in Brown's legacy. Chief Justice John Roberts argued last spring that he and Marshall were on the same page, that the plaintiff's attorneys in Brown supported the idea that all racial classifications should be equally suspect. This prompted a response from Robert Carter, Marshall's co-counsel and now a retired federal judge, who the chief justice had quoted in his opinion: "All that race was used for" at the time of Brown "was to deny equal opportunity to black people," he said. "It's to stand that argument on its head" for the Court "to use race the way they use it now."

The Roberts Court abstracted Brown from its painful historical context, a context that Marshall pressed on the Court in Bakke.

At a time when political pundits suggest that the Barack Obama candidacy portends a post-racial America, Brown's anniversary this month (May 17), should be a time to remember that, in moving forward, the nation cannot escape its past. This year, for Marshall's 100th birthday, on Brown's anniversary we should reflect on Marshall's admonition: "It must be remembered," he wrote in Bakke, "that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier."

Mary L. Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at USC. Her newest book is "Exporting American Dreams: Thurgood Marshall's African Journey."
Posted 10:15 AM by Mary L. Dudziak [link] (35) comments

An intriguing institutional design question: shadow redistricting commissions

Heather K. Gerken

Three weeks ago I published an op-ed in the Legal Times proposing that we create shadow districting commissions to mitigate the problem of partisanship in redistricting (follow-up blogs can be found here and here). During an informal workshop discussion of the idea here at Yale, I realized that "shadow institutions" -- like my shadow districting commission or Ned Foley's amicus court proposal – present an intriguing set of institutional design questions.

Shadow institutions are designed to combat what I've called the "here to there problem." Academics and reformers spend a lot of time on the "here" (identifying the problems we have now) and the "there" (figuring out how things ought to look in the future). But we don't spend enough time figuring out how to get from "here to there" -- identifying the interim strategies and institutional tweaks that would create an environment in which meaningful reform might take root.

Shadow districting commissions are a "here to there" strategy. They don't represent the final solution -- which most agree should be nonpartisan districting commissions -- but should help us move us toward it. In the short term, shadow districting commissions would give the public a baseline for evaluating the decisions of self-interested legislators who draw their own districts. They can thus help shame those in power into doing better, tamping down on the most egregiously partisan decisions. In the long term, shadow districting commissions raise awareness about the need for more substantial reform. Whenever a legislature's districting plan deviates from its shadow's, someone -- a journalist or reformer or someone on the losing side -- will draw attention to that fact. A shadow districting commission, by its mere presence, reminds us that we can do better.

Because shadow districting commissions are a "here to there" solution, not a final one, they pose a distinct set of design challenges. Usually academics and reformers, focused on the "there" question, think only about designing the ideal districting commission and thus hone in on set of concerns familiar to anyone who has thought hard about creating independent administrative agencies. While these concerns are surely relevant to designing shadow districting commissions -- particularly to the extent that we want the shadow commission to "model" how a well-functioning nonpartisan party would function -- we must also keep in mind that the main reason for creating such commissions is to provide the public with a baseline for evaluating what legislators are doing today.

Because districting issues can be quite complex, what the public needs is a heuristic -- something that tells them whom to trust in districting battles. In most political debates, people rely on party labels to guide their decisions, as David Schleicher has recently explained in his smart review of Bryan Caplan's new book. The label "Democrat" or "Republican" offers voters the rough political equivalent of the Good Housekeeping Seal Approval. In the districting context, however, that heuristic isn't reliable because legislators are looking out only for their interests, not voters'. Voters need a better heuristic to guide them, and shadow districting commissions are there to provide it.

We thus face a different kind of design question in creating shadow institutions than we do in creating more traditional ones. Designing the permanent solution means creating an institution that is above politics. Designing the "here to there" solution means creating an institution that can change politics. Their different purposes may result in different design choices.

Consider a concrete example. Most people who favor independent nonpartisan districting commissions think that they should be staffed entirely by academic experts and technocrats. But a shadow districting commission designed along these lines might be less effective than, say, a commission composed of randomly drawn citizens (one modeled on the citizens' assemblies deployed in British Columbia and elsewhere). As I have argued here and elsewhere, a shadow districting commission composed of experts and technocrats will be vulnerable to at least two kinds of challenges from disgruntled politicians trying to stymie reform: (1) that a commission composed of experts is undemocratic, and (2) that commission members are not really neutral.

A shadow districting commission composed of randomly drawn citizens would be immune to such attacks. No politician worth his salt is going to claim that such a group is undemocratic or that everyday citizens have a partisan axe to grind. In British Columbia, for instance, the two major parties opposed the electoral reform endorsed by the province's citizens' assembly. But they were afraid to speak out against it, precisely because it was backed by citizens. The best politicians could do was maintain a virtual radio silence on the subject.

Needless to say, there's a balance to be struck here. One reason for the public to pay attention to a shadow districting commission is, of course, expertise. The group putting the shadow commission into place might decide that it would be better to include a mix of experts and citizens on the commission or to have experts hold public hearings to garner citizen input. It may also be that the public would be willing to rely on a commission composed of experts when it has been assembled by an institution with an assiduously nonpartisan reputation, like the League of Women Voters, the AEI-Brookings Election Reform Project, or a major foundation.

The point here is simply that shadow institutions intended to get us from "here to there" in election reform present a distinct set of institutional design puzzles. On the one hand, we want them to show the public that a better alternative exists, modeling how a body that is removed from politics ought to function. On the other hand, we want them to have enough political appeal to change today's politics. As I’ve written elsewhere, designing institutions that can change the political landscape requires a bit of politicking but not too much; the key is to figure out how to inoculate such institutions against political disease while warding off a full-scale political infection.


Posted 9:15 AM by Heather K. Gerken [link] (7) comments

Rogers, Flemming, Bond, ed., Institutional Games and the U.S. Supreme Court

Mark Graber

Game theorists are declaring victory in their battle to influence public law studies, and they are not leaving. Lawrence Baum praises "(s)cholars who do formal work" for "provid[ing] a series of insightful and nonobvious ways of thinking about courts." Kenneth Shepsle congratulates the "tribe of modelers" "who have mastered both the theoretical tools and substantive knowledge" necessary for vital new insights into judicial politics. The essays in Institutional Games and the U.S. Supreme Court warrant that approval, but also the caution flags Baum and Shepsle raise in their concluding and introductory essays, respectively. All scholars of public law, regardless of their methodological preferences have something to learn from the anthology James Rogers, Roy Flemming and Jon Bond have put together, just as the authors in the anthology still have much to learn from all scholars of public law, regardless of their methodological preferences.

The pervasiveness of strategic action in judicial politics unites the various essays in Institutional Games. Courts act strategically when determining whether and how to decide cases. Lawyers and interest groups act strategically when determining when to litigate and whether to appeal. Elected officials act strategically when determining what policies to enact and whether to sanction courts that strike down their handiwork. Scholars seeking to understand and explain judicial behavior must, therefore, elaborate how the structure of the federal judiciary, litigation practices, and the behavior of elected officials constrain and enable legal policymaking. Several essays clearly demonstrate how anticipated reactions structure constitutional politics. Christopher Zorn’s model of legal behavior suggests that courts influence policy both when justices declare legislation unconstitutional and when elected officials refrain from passing measures they believe justices will declare unconstitutional. Georg Vanberg’s fine essay observes that the frequency with which judicial decisions striking down legislation are implemented may be explained by justices tending to hand down decisions declaring laws unconstitutional only when good reasons exist for believing elected officials will respect those decisions. "[T]he impact of the enforcement problem," he astutely declares, "will not necessarily be reflected in actual attempts at evasion." Witness, for example, the various judicial maneuvers that prevented constitutional tests of Lincoln Administration policies while the Civil War raged.

Ordinary judicial behaviors, several essays conclude, may have hidden strategic roots. Ethan Bueno de Mesquita and Matthew Stephenson explain why Supreme Court justices interested in good legal policy may work within existing doctrine, even when they think previous precedents erroneous. Their insightful essay correctly observes that lower federal court justices are less likely to misapply a well established series of precedents than the new, single precedent that is established whenever a series of precedents is overruled. "[T]he development of lines of cases," de Mesquita and Stephenson understand, "can communicate a legal principle better than any individual case could." By maintaining slightly inferior precedents, Supreme Court justices practically guarantee only slightly inferior legal policy in the lower federal courts, avoiding the significant probability that many lower court justices will frustrate higher court ends by misapplying new precedents. Judicial deference to legislatures is another legal practice that may serve strategic ends. Smart justices, James Rogers’s essay claims, might sometimes sustain legislation they believe mistaken on the ground that majorities in large bodies are more likely to make correct decisions than majorities in smaller bodies. Even if Rogers speaks too strongly when he asserts that "(t)he idea that legislatures aggregate information as well as aggregate preferences is potentially able to account for judicial deference in a fashion better than any existing alternative" (38), his analysis provides reasons for thinking that the Condorcet Jury Theorem may complement and enrich existing explanations of judicial restraint.

Institutional Games should attract the attention of all public law scholars, even though the work is not likely to instantly bring harmonic convergence to the disparate wings of the field. Some minor issues of presentation may annoy those with other perspectives on judicial behavior. Several essays take for granted that "justices are policy-seeking political actors" (4), even though that assertion may not be necessary for most models presented in the anthology. A good case can be made that justices have good reasons for acting strategically whether their goal is making good policy or following the law. Both ends often require the sort of sophisticated behavior well documented by the authors in this collection. Although he uses different terminology, Christopher Zorn’s distinction between "dependent"and "independent" courts might serve as a nice starting place for exploring the extent to which more policy and more legally oriented justices might engage in different forms of strategic behavior (or justices with different legal theories). More than a few unnecessary Greek letters also dot the landscape, although the vast majority of essays are quite readable for the uninitiated.

Many essays might have been improved had the authors immersed themselves more broadly in the public law field. Several essays assume "a group faced with the decision whether or not to litigate will do so only when it expects to win." The law and society literature points to numerous reasons why legal mobilization promotes a political movement’s goals even when a favorable judicial decision is unlikely. The Supreme Court has historically considered a great many appeals from indigent persons convicted of crimes, few of whom are deterred by the low probability of success. With rare exceptions, capitally sentenced prisoners always appeal their trial verdict, regardless of anticipated outcome. Thinking about when litigants seek to have higher courts review a lower court decision may improve some formal models of the appeals process. Consider the hypothesis that, higher courts are more likely to review and take seriously appeals from the category of litigants who tend to appeal only when there is a high probability of success.

Broader knowledge of the public law field, this and other examples suggest, will likely produce even better game theoretical insights. Consider Andrew Martin’s interesting statistical analysis which concludes that the Supreme Court in constitutional cases responds strategically to the president, but not Congress. Martin may be correct, but another explanation for his finding is that presidents who appoint justices have a greater influence on judicial preferences than the senators who confirm justices. Recent scholarship suggests that post-New Deal presidents sought to nominate justices who were committed to liberal notions of racial equality, but that Roosevelt, Truman and Eisenhower did not consistently seek justices committed to free speech. Congressional majorities may have had difference preferences during the 1940s and 1950s. Greater judicial agreement with the president may reflect these shared commitments, rather than strategic choices. Needless to say, both statistical analysis and more formal models that seek to elaborate on the distinction between race cases and free speech cases are likely to provide fascinating insights that will benefit the entire public law field. Certainly if the quality of essays in Institutional Games is any indication, a great many people in political science have a good deal to learn from each other.

Posted 6:00 PM by Mark Graber [link] (4) comments

No torture, No exceptions

Sandy Levinson

Our frequent colleague Scott Horton has launched a campaign, "No Torture, No Exceptions," focusing on the presidential campaigns. There is a web site setting out the campaign, as well as a video taken from the Oscar-winning "Taxi to the Dark Side."

For the record, I continue to be angry after four years at Jim Lehrer for failing to ask a single question about Abu Ghraib in the first "debate" between Bush and Kerry, which ostensibly focused on Iraq. I don't expect anything better from the buffoons who have been in charge of the debates so far. Perhaps McCain and Obama really will liberate themselves from the "debate" format and actually engage each other as human beings on this issue.

I also note that Doubleday will be publishing Jane Mayer's The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, a collection of her indispenable articles on the interplay between that "war" and the use by the United States of torture. It can be "pre-ordered" at a substantial discountl from Barnes and Noble and Amazon.


Posted 5:35 PM by Sandy Levinson [link] (98) comments

Gerken-Yoshino on the Liberty/Equality Debate: Round 2

Heather K. Gerken

Yesterday Kenji Yoshino and I debated whether, as a purely predictive matter, liberty or equality offers the more promising framework for litigating gay-rights claims (our posts are here and here, with short essays on the topic here and here). Today I want to address whether there is a normative reason to prefer one strategy over the other in thinking about these questions, another point of disagreement between us. I must confess that here I am more ambivalent about which paradigm is more attractive, in large part because (as both Kenji and I, following Tribe, agree) the two paradigms are necessarily intertwined. Nonetheless, given the current legal landscape, I mildly favor equality over liberty because it comes closer to capturing what we are actually fighting about.

Take the debate between Justice Kennedy and Justice Scalia in the Supreme Court's most recent gay-rights decision, Lawrence v. Texas. As Larry Tribe has written, a liberty claim is won or lost based on what level of generality a court uses to describe it. In striking down Texas's sodomy statute on liberty grounds, Justice Kennedy describes the right in highly abstract terms. The opinion opens by proclaiming that "liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person in both in its spatial and in its more transcendent dimensions." It's lovely. But what on earth does it mean? The whole game here is to identify the "certain intimate conduct" that is protected, and the opinion never gives us the tools for doing so. One cannot help but long for the elegant specificity of Brown: "separate . . . [is] inherently unequal."

Just as Justice Kennedy describes the case in language that is too abstract, Justice Scalia describes it in terms that are too concrete. It is Justice Scalia's groundedness that makes him the wittiest dissent in cases involving sex, for everything funny about sex lies in our discomfort between the particular and the abstract. Justice Scalia famously deflated grand invocations of the First Amendment by describing 60,000 naked Midwesterners exposing themselves in the Hoosier Dome. The power of Justice Scalia's dissent in Lawrence stems from his confident, pragmatic rhetoric. He never lets us imagine two men in a relationship. He never lets us imagine two men, to use a common abstraction, "making love." He insists that we remember at every point that sodomy is the act at issue.

The marked differences between the style of the majority and dissenting opinions, it seems to me, are signs of the substantive shortcomings of the liberty paradigm. By framing the case in liberty terms, neither opinion comes to grips with the fight being waged in Lawrence. What is at stake in Lawrence is not whether all human beings should enjoy a right to some vaguely defined notion of intimate relations (Kennedy's take) or whether we all enjoy the right to engage in a concrete sex act like sodomy (Scalia's). What is really at stake in Lawrence is whether gays and lesbians, in particular, should possess both of these rights, and that idea is better capture by the equal protection paradigm. Somewhere between Justice Kennedy's high-flown rhetoric and Justice Scalia's down-and-dirty prose is the status of the LGBT community. Equal protection begins with that issue.

That is why I sometimes wonder whether a litigation strategy premised entirely on liberty claims could prove wholly satisfying. Even as the liberty paradigm pushes toward universalism, it seems to require members of the LGBT community to litigate pieces of their humanity, one by one. First they assert their right as human beings to have intimate relations with another person. Then they assert the right to marry or to have a family. To work. To serve their country. These are all fine things. But it seems to me that they do not capture the essence of what is at stake in these debates, which is to recognize not the parts of personhood that we all share – though that is plainly necessary for equality – but to acknowledge the entire person before us whether we share anything or not.

Indeed, my assumption is that the many gay and lesbian lawyers who wept openly in the courtroom when Lawrence was handed down did so not because sodomy is now legal in every state, nor did they do so because we are all now entitled to love one another. They did so because – as Justice Kennedy observed, using the evocative language of equal protection -- the Supreme Court’s decision in Bowers v. Hardwick represented a "stigma" on gays and lesbians. Equal protection is where the rhetoric and reality of gay-rights litigation coincide.

My instincts on these matters may simply stem from the fact that there are many more equality cases on the books than there are liberty decisions. Kenji rightly points out in his response to this post that it is difficult to identify a clean set of principles that tell us exactly which groups deserve protected constitutional status and which don't. I must confess that I lack Kenji's faith that this exercise is somehow more principled when we define which liberties people deserve. But even if he is correct that philosophers have done a better job on this front, American judges are not terribly practiced at it, at least not in the absence of a text or a statute to guide them. The lawyer in me finds it easier to see the contours of the argument, to find the fit, in the Court's equal protection jurisprudence.

Perhaps this is an unbearably conservative view. After all, my instinct is like that of Virginia Woolf's about women authors. In A Room of Her Own, Woolf noted how difficult it is for someone to write without a tradition behind her. My argument is that when the jurisprudence of gay rights gets written, it will be easier to write it with a tradition behind us But I may be quite wrong about that, for reasons that Woolf herself identifies. Woolf, after all, also argued that it was a mistake for women to use what she termed "a man’s sentence," noting that even Charlotte Bronte "with all her splendid gift for prose, stumbled and fell with that clumsy weapon in her hands" and that "George Eliot committed atrocities that beggar description." Woolf told us that the genius of Jane Austen was that she "looked at [that man's sentence] and laughed at it and devised a perfectly natural, shapely sentence proper for her own use." She argued that women turned to the novel precisely because the tradition had shut them out of other forms. "The novel alone was young enough to be soft in her hands," Woolf writes. Perhaps the same is true of the new liberty jurisprudence that we see in its inchoate form in Lawrence. It is a new tradition, young enough to be soft in our hands.

* * * *
Kenji Yoshino responds: "It's always a dangerous thing to disagree with Heather, as I have learned over half a lifetime. So here I am glad to see that our disagreement is narrower than I thought. I do normatively endorse the Lawrence tactic of "leading with liberty." But I emphasize that I do so with two significant caveats. First, equality claims can and indeed must be made outside the courts by entities more institutionally competent to make them. Second, equality claims should still find their way into Supreme Court opinions, but under the guise of defining the metes and bounds of the liberty claim at issue." For the full response, click here.


Posted 9:27 AM by Heather K. Gerken [link] (23) comments