It's Still Justice Kennedy's Court

Lee Epstein

As of the end of the 2008 term, it appears that Justice Kennedy has been in the majority in a higher percentage of 5-4 decisions than any other Justice appointed since 1953. With little doubt, he retains his super median status.


Posted 11:12 AM by Lee Epstein [link]

More on the Detention Front

Deborah Pearlstein

Cross posted at Opinio Juris

Various developments on the resolution-of-Gitmo front to discuss. First a quick note on a recent signing statement. Then on to rumors of a contemplated executive order on detention issues.

The war spending bill I mentioned in a previous post barring the president from bringing any current Gitmo detainees to the United States was signed into law by the President on June 26. In my last post, I’d given the administration credit for not having made an Article II argument (about the constitutional power of the president) against Congress’ enormously misguided provision requiring the President to report to Congress in the midst of his negotiations with foreign governments over resettling some Gitmo detainees. Congress, despite having given its overwhelming and bipartisan support to the notion of closing Gitmo last year, is well on its way to making it impossible for the President to ever relieve the United States of the Gitmo-anvil around its neck. That said, looks as though I spoke too soon about the administration’s avoidance of any Article II claims of authority. In a signing statement issued on June 26, the President writes:

“[P]rovisions of this bill within sections 1110 to 1112 of title XI, and
sections 1403 and 1404 of title XIV, would interfere with my constitutional
authority to conduct foreign relations by directing the Executive to take
certain positions in negotiations or discussions with international
organizations and foreign governments, or by requiring consultation with the
Congress prior to such negotiations or discussions. I will not treat these
provisions as limiting my ability to engage in foreign diplomacy or
negotiations.”

I have tended to find the practice of signing statements less concerning than others. Presidents have always issued them. The courts – exercising independent authority to interpret the law for themselves – have always ignored them or not, at their discretion. That is, more or less, how it should be in a government of coequal branches. Moreover, in this case, if there is anything that actually is constitutionally committed to the executive, it is the authority to negotiate agreements with other states without interference from the House of Representatives at a minimum. U.S. Const. art. II, sec. 2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties…”). Nonetheless, as my Opinio Juris colleague notes rather more critically, it is a development that bears watching. Which brings me to the more important item.

“Three senior government officials with knowledge of White House deliberations” have floated the notion of issuing an “executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely.” The must-read Washington Post piece is here. What are we to make of this? While it’s always risky to comment on a policy still in development – one the administration as best I can tell genuinely hasn’t settled on yet – I think there are a few preliminary points of note. First, the news that the administration is moving away from the notion of introducing legislation to create a new “preventive” detention system (and/or a national security court to go with it) is welcome indeed. I have elsewhere set forth why I think such legislation is a bad idea (see, e.g., here or here). As a method of resolving the particularly ugly problem of Gitmo, it at best trades off one set of legal challenges (in particular the due process problem of finding broad detention authority contained in a statute, the 2001 Authorization for the Use of Military Force, that does not mention the word detention and can draw on only the vaguest guidance from international law to cabin its scope) against another (depending on its contours – due process, ex post facto, and/or equal protection problems of its own). As a long-term approach to counterterrorism more broadly, it risks exacerbating the adverse strategic security consequences the United States has already suffered from pursuing overbroad (and easily abused) detention and interrogation programs that lack settled legitimacy under law. More simply, broad power to reach out anywhere in the world and detain anyone we want will win the hearts and minds of no one.

If nothing else, the White House has evidently (and I think rightly) concluded that the prospects of getting any legislation, much less any good legislation, out of Congress on the Gitmo question during this health care season and before the January closing deadline is not going to happen. But with Congress having now eliminated the prospect of bringing any Gitmo detainees to the United States at least for FY09 (with similar legislation likely for FY10, so we can yet hope Congress reconsiders), that January deadline just got a lot harder to meet. So now what?

For Gitmo, it’s worth trying to picture how an executive order would especially help. Of the five categories of detainees there the President has named: (1) Congress seems for the moment to be tolerating allowing detainees to be brought to the United States for criminal trial; (2) The President has already made some administrative changes in the military commission rules, but for the rest – alas – he needs Congress to amend the Military Commissions Act of 2006; (3)-(4) Detainee transfers to other countries (for release or continued detention) can proceed apace (or as apace as it gets when we’ve spent the last 8 years alienating most of our international allies) as long as Congress stays out of the way. One doesn’t need an order for any of this to move forward.

It may not be immediately apparent why it would help for category (5) either – the group of Gitmo detainees the administration says should not be charged or released because, for example, they served as leaders of Taliban forces in Afghanistan. For this group, the administration has already, mostly successfully, advanced a construction of the AUMF in federal habeas court that would extend to authorize the continued military detention of “members” of Al Qaeda (where membership may be determined in part by conduct). It’s possible that an executive order could help insulate that construction against continuing due process challenge by clarifying or reinforcing the definition of who may be detained under the AUMF, or (better) by expressing the administration’s view that the rather broad authority they’re now claiming in court under the AUMF was intended to be of limited duration (long enough to deal with the “legacy” detainees, but not extending indefinitely into the future). But it’s also possible courts would find such a post hoc “interpretation” of little – or perverse – significance at this stage. What the administration really needs to be able to continue to detain category 5 detainees is a place to put them. Gitmo itself is no longer an option. And neither – at least until Congress relents – is the United States. Which brings us back to Afghanistan.

The military continues to detain some hundreds of people at the U.S. Air Force Base in Bagram, Afghanistan. Given the ongoing armed conflict there, and even a narrower reading of the AUMF, the Administration has a strong case it has ongoing authority to detain at least some set of individuals there. The more pressing legal problem at Bagram is about process. By all accounts, the amount of review accorded the average Bagram detainee is less than that available under the now-discredited CSRT process once used at Gitmo. The Supreme Court’s decision in Boumediene, extending constitutional habeas rights to the Gitmo detainees, left open the question whether habeas extended to U.S. detainees held elsewhere. The Administration has already lost once on that question in district court. I’d put even odds on whether the Supreme Court would extend habeas rights to Bagram, depending largely on the facts of the particular case, and what Justice Kennedy has for breakfast that day. More, though, the Court’s willingness to extend habeas to Bagram will depend in part on how much process the detainees there have already had. Some far more serious administrative process than that already in place could only help the Administration’s position. And especially if there’s now some contemplation of sending some of the Gitmo detainees to Afghanistan – which is, after all, where most of them were seized in the first place and where, if not for the policy brainstorm that created Guantanamo Bay, many of them could likely still be held in some capacity today – an executive order could be a positive step forward.

As I’ve already gone on rather too long for blog tastes, I’ll promise to reach the question of detention in and detainees from the rest of the world another day.

Posted 11:07 AM by Deborah Pearlstein [link]

Man's Peculiar Evil

Alice Ristroph

Something about Bernie Madoff calls to mind Dante, but what is it? Perhaps there’s a temptation to imagine the worst of all punishments, and Dante’s Inferno offers some colorful suggestions. For me, the Madoff-Dante connection arose in a somewhat different context—a recent paper on the often inconsistent ways in which the criminal law defines and punishes violence (early draft here). Violent crime is sometimes treated as an ideal type—the very model of what should be criminalized and punished. It’s certainly the case that crimes that cause physical injury tend to carry greater sentences than do fraud or property crimes. But according to Dante, those who commit fraud are more evil, and punished more severely in hell, than those who inflict physical violence.

Of all malicious act abhorr’d in Heaven,
The end is injury; and all such end
Either by force or fraud works other’s woe.
But fraud, because man’s peculiar evil,
To God is more displeasing; and beneath
The fraudulent are therefore doom’d to endure
Severer pang.*

Apparently, at least one of Madoff’s victims felt the same way.

At Madoff’s sentencing hearing today, Burt Ross invoked Dante as he asked the judge to sentence Madoff to prison for the rest of his life.

[Dante] placed the perpetrators of fraud in the lowest depths of hell, even below those who had committed violent acts. And those who betrayed their benefactors were the worst sinners of all, so in the three mouths of Satan struggle Judas for betraying Jesus Christ and Brutus and Cassius for betraying Julius Caesar.

... We urge your Honor to commit Madoff to prison for the remainder of his natural life, and when he leaves this earth virtually unmourned, may Satan grow a fourth mouth, where Bernard L. Madoff deserves to spend the rest of eternity.

I couldn’t say whether Madoff deserves his own mouth of Satan. His announced sentence of 150 years is a severe one. As Doug Berman notes, the difference between a 30-year sentence and a 150-year sentence may mean little to the 71-year-old Madoff, but the long sentence is important as a benchmark that may affect future sentencing for fraud offenses. Perhaps fury at Madoff and other fraudsters will simply lead us to ratchet up white-collar sentences to match the punishments imposed for violent and drug offenses. It would be a shame, though, if we used Dante only to conjure ever “severer pangs” to inflict on Madoff. The Divine Comedy invites us to consider the nature and comparative evil of types of human wrongdoing; it tries to articulate what makes violence, or fraud, so bad.

That sort of question is worth asking. As the scope of the criminal law and the scale of imprisonment has expanded, so too has the concept of violence. As I show in my paper, we don’t limit the term violence to physical injury anymore; instead, the word is becoming a repository for all we find repulsive, transgressive, or simply sufficiently annoying. Paradoxically, all the talk about violent crime has not produced sufficient critical analysis of what we classify as violent. Maybe Dante can help.


*Canto XI, from Henry F. Cary’s translation, available here.


Posted 7:25 PM by Alice Ristroph [link]

Why Has the Roberts Court Suddenly Gone Minimalist?

JB

What Ricci v. DeStefano, the Title VII case, and NAMUDNO, the Voting Rights Act case, have in common is that the five person conservative majority avoided doing what many commentators thought they would do: declare unconstitutional important aspects of important civil rights statutes dating back to the civil rights revolution of the 1960s. In NAMUDNO, the Court suggested (but did not hold) that parts of section 5's preclearance procedures might be beyond Congress's powers to enforce the Fifteenth Amendment. Instead it resolved the case by reading the statute to allow the municipal utility district to get out from under the requirements of section 5's preclearance requirements, thus weakening the statute's practical effect. In Ricci, the Court avoided saying that when New Haven threw out firefighter exams to avoid disparate impact liability, its action violated the Fourteenth Amendment, much less that the very notion of disparate impact liability violated the Fourteenth Amendment. It resolved the case on statutory grounds, creating new defenses against disparate impact liability in certain cases. In each case, one member of the Court's conservative majority went where the conservative majority would not go: Justice Thomas flatly stated that the Voting Rights Act was unconstitutional; Justice Scalia questioned whether disparate impact liability violated the Fourteenth Amendment.

The interesting question is why the Roberts Court stopped short in each case.

Judicial minimalism is (pace Cass Sunstein), not a substantive theory of how to interpret the Constitution, but rather a prudential strategy that Justices tend to employ when they are unsure of the right answer or are otherwise on the defensive. Whatever one can say about today's conservative Justices, they do not lack certainty. So the question is why the conservative members of the Roberts Court felt themselves on the defensive and thus resorted to a minimalist approach when they could have been far bolder and made a far bigger splash.

One theory is that the Court's conservatives saw that they were in a politically weakened position and feared retaliation. The Democrats hold the Presidency and both houses of Congress. If they held parts of Title VII or the Voting Rights Act unconstitutional, both the President and Congress might retaliate. But one needs to spell out in more detail what Congress could have done by way of retaliation or why it should matter to the Justices. Congress could have re-passed parts of the affected statutes, but this would not necessarily cure the constitutional defects in the Court's eyes. If the Court wanted to strike down these statutes and stick to its guns, it could. Indeed, it might make sense for it to do so; since there may be no new conservative appointments for the next eight years, perhaps the conservative majority should strike while the iron is hot.

Another theory is that the Court's swing Justice, Anthony Kennedy, has been disproportionately influenced by the recent changes in political culture, and is now unwilling to join in 5-4 opinions he might have joined in a decade earlier. This may be why NAMUDNO is written as it is, and it may be why Kennedy received the assignment to write Ricci. But it doesn't explain why Kennedy has been influenced in ways that the other Justices have not been, other than simply to confirm that he is, indeed, the swing Justice.

A third theory is Bruce Ackerman's view that these two statutes, the Civil Rights Act of 1964 and the Voting Rights Act of 1965, are more than statutes: they are now parts of the Constitution. Hence the conservative members of the Court felt that they could not hold them unconstitutional any more than they could hold the Fourteenth or Fifteenth Amendments unconstitutional. This would explain the result, but it is doubtful that members of the conservative majority actually agree with Professor Ackerman that these statutes are amendments to the Constitution.

My theory of framework originalism would offer a slightly different account that is nevertheless consistent with the general spirit of Ackerman's proposal. It argues that these two statutes are not amendments, but they are important constitutional constructions that are characteristic of the constitutional regime in which we currently live. They are both durable and canonical constructions, which have become important symbols of America's civil rights history. They invoke the memory of Martin Luther King's fight for a civil rights bill and the police attack on civil rights demonstrators at the Edmund Pettus Bridge. They are as central to our notion of what the Federal government can do and should do as the Social Security Act or the Fair Labor Standards Act, both products of the New Deal.

If the Court had struck down elements of these two crown jewels of the civil rights era, passed by democratic majorities, this would have had powerful symbolic significance, and undermined the Justices' legitimacy, especially if the decisions had been by a vote of 5-4, with the conservatives voting to use the power of judicial review to hold key civil rights provisions unconstitutional. (Note that this is an argument about the Court's legitimacy, not about whether Congress or the President could retaliate, the first theory mentioned above.)

This does not make the Civil Rights Acts constitutional amendments, but it does make them important parts of our constitutional tradition that the American people have come to expect will be preserved over time; they symbolize important values that Americans now associate with their Constitution. The Court's legitimacy as an institution comes in part from respecting the boundaries of the constitutional tradition as the public understands them. Put differently, courts largely serve to police and to legitimate the existing constitutional regime; they only act to substantially alter it when the national political coalition supports them or urges them to do so. That is not what happened recently in American politics: the conservative movement that created a conservative Supreme Court majority has run out of steam, and the Republican Party that housed the movement was decisively rejected at the polls in 2006 and 2008. The national political coalition does not support a conservative constitutional revolution that would strike down key elements of the Civil Rights regime. If anything, change is tending in the opposite direction.

I said earlier that judges turn to minimalism when they believe that they are on the defensive. If I am correct, what put the conservative Justices (and especially Justice Kennedy) on the defensive was the assumption that they would risk sacrificing the Court's legitimacy in a climate in which neither the President nor the Congress would support their gambit and would in fact do everything possible to undermine their legitimacy.

It is worth comparing this pair of imagined 5-4 decisions to Bush v. Gore. In that case, the Court was supported by a Republican controlled Congress and a Republican President (whom they helped install). Even if the decision in Bush v. Gore seemed outrageous to Democrats, it was amply supported by the national political coalition that took power in 2000. Perhaps if John McCain had won the Presidency in 2008, the five conservatives might have risked declaring parts of one or the other of these two civil rights statutes unconstitutional. But in the current political climate, with a Democratic President and a Democratic Congress, the Court's calculations of legitimacy would have to be very different.


Posted 3:50 PM by JB [link]

Is there no room for voluntary action?

Guest Blogger

Deborah Hellman
University of Maryland

Today, the Supreme Court decided Ricci v. DeStefano, a case in which firefighters in New Haven challenge the city’s decision to ignore the results of a test it had designed and offered as a basis for promotion. If promotions had been based on the test results, no African-Americans would have been eligible for the 15 available positions. Looking at these results, the city civil service board deadlocked over whether to certify the test results, effectively halting the promotions. Today the Court held that the city’s failure to certify the results was a race-based decision in violation of Title VII of the Civil Rights Act.

Justice Kennedy, writing for the Court sees the city as caught between a rock and a hard place. The rock is the disparate treatment prong of Title VII which, as Kennedy interprets it, forbids employers from basing hiring or promotion decisions on race. So, thinking about the racial make-up of the work force is verboten. The hard place is the disparate impact prong of Title VII which requires employers to make sure that racially neutral methods, like written tests or height requirements, which have a disparate impact on minorities or women actually test for knowledge and abilities important for the job. This part of the law requires an employer to be conscious of the racial make-up of its workforce in order to root out unnecessary practices that block women and minorities. What’s an employer to do?

Justice Kennedy resolves the problem by finding that an employer may consider race only when there is a “strong basis in evidence” that the hiring procedure would violate the disparate impact prong of the law. As Justice Ginsburg, dissenting in the case, points out, this approach will leave employers with very little leeway to voluntarily work to root out hiring policies that inadvertently leave out minorities or women. Imagine the following case: an employer adopts a hiring method that produces a disparate impact. However, the method also identifies qualified candidates. A different and more expensive test would do as well without producing as strong a statistical disparity. A court might well rule that because the second test also produces some disparate impact, albeit less, and is significantly more costly, an employer is not legally required to use it. That seems fine. But if Justice Kennedy is right that there really is very little light between what the disparate impact prong requires and what the disparate treatment prong forbids, then this employer would be forbidden from voluntarily incurring this cost in order to do its best to have fairer hiring policies. This is a mistake.

The Court’s approach leaves too little room for employers to do this because of the way it interprets the disparate treatment prong of Title VII. In fact, Kennedy’s opinion expressly begins with the following premise: “The City’s actions would violate the disparate treatment prohibition of Title VII absent some valid defense.” But does it? After all, the action at issue here is scrapping the test. This is not a race-based action. Unless, that is, you look inside the minds of the city officials and hypothesize that the reason they scrapped the test was to achieve racial balancing. Then it looks like the action is indeed based on race. But one can, as easily, describe their intention as trying to comply with Title VII. Which is it? The several opinions in the case spend considerable time debating this point. Not only is this a difficult empirical question to resolve, but both the majority and dissent err in making the city’s intent the touchstone of whether there is a violation of Title VII here.

Rather than delving into the internal recesses of the minds of government officials, the relevant issue should be the objective aspects of the action itself. Here are the facts. The city declines to base promotions on an exam that produces a statistically disparity in test passage. Is this action permissible? We don’t need to know why the Board scraps the test. All we need to know is that the test does produce a disparate impact. May a city abandon a test it designed and offered when this will be the result? The disparate impact prong of Title VII encourages this conduct and the disparate treatment prong of the same law should not be interpreted to forbid it.

Posted 2:48 PM by Guest Blogger [link]

How Ricci Will Affect the Voting Rights Act

Rick Pildes

The two biggest decisions involving race this Term -- indeed, of many Terms -- are Ricci and last week's decision concerning the Voting Rights Act (VRA). Although not framed in precisely this language, disparate-impact analysis plays a key role throughout all aspects of the VRA, and thus Ricci has direct implications for the VRA -- some obvious, some more speculative. For purposes of both VRA litigation and for any action Congress might take before the Supreme Court decides another case on the constitutionality of the Act, I wanted to identify those implications.

1. Disparate Impact's Role in the VRA. Section 2 of the VRA's key provision prohibits election practices that "result" in denial or abridgement of the vote on account of race. This results test is a form of disparate-impact law. Similarly, Section 5 of the VRA, at issue last week, bars covered states/cities/towns from a change in election laws that will cause a "retrogression" in fact in minority voting power. That, too, is a disparate-impact standard. Moreover, while none of the Justices before Ricci had suggested that the disparate-impact standard of Title VII was in tension with the Equal Protection Clause, Justice Kennedy (author of Ricci) has been saying that for many years in his VRA opinions. If Ricci reflects the Court's heightened concern with this issue in the employment context, it is hard to believe that concern will not be reflected in the VRA cases.

2. The minimal effect of Ricci. One of the most important elements of Ricci is how narrowly it defines what will constitute a legitimate disparate-impact case. Even when a law/policy/action has a "significant" adverse racial impact, says the Court, the mere showing of a "significant statistical disparity" is not enough to provide a "strong basis in evidence" for a disparate-impact claim -- let alone to win one. The Court indicates that much more has to be examined beyond the statistical disparity; the statutory reasons amount to an inquiry, as the Court construes them, into whether the City might nonetheless have legitimate reasons for the policy despite its impact. This is part of Ricci's direct holding. This suggests that the Court is going to be similarly more demanding in the VRA context in requiring that before a state or local law be held to violate the VRA, there must be more than just a racially adverse impact -- the Court might well start requiring disparate impact "plus," meaning some additional evidence beyond impact alone.

3. The Collision of Disparate Impact and Equal Protection. Ricci identifies a potential collision course between the Constitution and disparate-impact standards, but notes that it need not address that issue. Justice Scalia's concurrence that this question is "not an easy one" and that the Court will have to confront it eventually. The same structure of potential collision exists for the VRA. Indeed, Justice Kennedy had already said as much in several of his VRA opinions. Ricci will undoubtedly increase that tension in the VRA context. Justice Scalia's concurrence intimates the resolution (for the 5-member Ricci majority) might come through doctrine that distinguishes among the kinds of disparate impacts federal laws make illegal. Those impacts that can be said to evidence an underlying discriminatory purpose would remain illegal. The flip side, as I understand him, is that it would be unconstitutional for Congress to make disparate impacts illegal if they cannot be shown to reflect an underlying discriminatory purpose. That is, impact can be looked to, along with other contextual factors, as evidence of purpose. It can be one means to finding purpose. But impact alone cannot be a constitutional basis for making a state law/practice illegal. If this is where the Ricci decision is heading -- and that awaits the future -- I would assume the Court would be heading the same place on the VRA.

4. Congress. I have suggested here that Congress would be wise, given the Court's VRA decision, to revisit Section 5 and update it, and that in doing so, Congress should consider whether national right-to-vote laws would be more effective in coming years to protect the vote than a "tweaked" Section 5. One reason I offered is that Section 5 is inherently limited in effect in various ways -- and that those limitations are likely to grow even stronger in coming years if the Court becomes more aggressive in insisting that laws that ban disparate-impacts are constitutional only if those impacts can be shown to reflect a racially-discriminatory purpose. Ricci suggests, at the least, that the Court is going to construe statutory disparate-impact provisions more narrowly, to avoid Equal Protection issues. Thus, even a revised Section 5 would face this problem. National right-to-vote laws, however, would jump past this problem.

5. Finally, I do not mean to say that Ricci compels particular results under the VRA. And Title VII and the VRA are different statutes, in ways I can't explore here. But it would be foolish to think that the kinds of views and responses of the Court in Ricci concerning Title VII's disparate-impact standard will not find their way into the same Court's treatment of disparate-impact issues under the VRA.
Posted 10:43 AM by Rick Pildes [link]

The Chief Justice Should read Mark Graber

Sandy Levinson

Yesterday, Chief Justice John Roberts attended the Fourth Circuit judicial conference at the Greenbriar, in West Virginia, where he was interviewed by Judge J. Harvie Wilkinson. Among the exchanges was the following:

JUDGE WILKINSON: .... But looking back over the history of the Supreme Court, are there some decisions that stick in your mind, other than [Marbury and Brown], as being of the most monumental consequence? Because it seems to me when people start getting beyond Marbury v. Madison and Brown v. Board of Education, the views about the importance of some of the others diverge. And so I was wondering what cases you might add to that list of really, really landmark cases in the past.

CHIEF JUSTICE ROBERTS: Well, I do think there's one that stands out, and it's a counterpoint. I mean, people talk about the monumental cases, and you assume they're talking about the good ones -- Marbury and Brown. I would say the third most significant case in the court's history was Dred Scott in the sense that while Marbury and Brown are good examples of what to do in very challenging situations and how to handle it, Dred Scott's an example where things went terribly wrong. And you need to look at that and try to figure out why.

And I think some of the reasons are pretty clear. You had, of course, the most divisive issue in our history, leading the country toward civil war, sectionalism overlayed on top of that, the political branches failing to address it in the case of the executive and failing and causing more harm than good in the case of the legislature.
And you had Roger Taney, whose reputation would be quite different if it weren't for this one case, looking at it and saying the other branches aren't working, this issue is threatening to destroy the country, and I'm going to solve it. I'm the only one who can. And he, more or less, took it upon himself to lead the court into a resolution of those issues that were dividing the country. And in a broad way, that really had no basis in a proper reading of the Constitution and in a decision that could have been resolved either way on much narrower grounds, which would have preserved the court above the fray.

I mean, I don't think it could have avoided the Civil War. I'm not suggesting that. But I am suggesting that the court, as an institution, could have been able to play a more effective role as the crisis evolved, and certainly after the Civil War, if it hadn't suffered this self-inflicted wound.

So I think when you look at Marbury for the lessons you can draw about the necessity of, one, developing a broad degree of consensus so the court is speaking as a court, approaching the case in narrow grounds, whether then leaping right away to the broad ones, avoiding politicization. I mean, you have to remember the Democratic Republicans, the Jeffersonians, were just waiting for Marshall to take action on the central issue that would have resulted in a court-packing plan for the Federalists. And then the stature of the court, I think, would have been attacked dramatically, and I don't know if it could have survived.

All of those things are good, but you need to look at Dred Scott and think, well, this is a good example of how not to do it. And that can teach you just as much as the good examples.

JUDGE WILKINSON: But you wouldn't want to draw from that a general rule that the court should steer clear of controversy.

CHIEF JUSTICE ROBERTS: Well, no, not controversy. But I think what Taney did is he used a case that could have been resolved on quite narrow grounds -- and I'm not suggesting it would have resulted in a noble decision, you know, freeing the country from slavery. It might well have resulted in the same decision, but it wouldn't have had the dramatic political impact. Taney went quite beyond what was necessary. It could have been resolved on several different levels and either resulted in relief for Dred Scott or not. But instead, he resolved it on the broadest possible grounds. And as a result, I think, threw the court into the political realm quite self- consciously.
Marshall's decision in Marbury reflected a decision to pull the court back. This was a central issue. The Jeffersonians had the White House, the Jeffersonians had the legislature. They said, our efforts are going to be blocked by the Supreme Court. Here's the crisis issue, they're trying to pack the courts with Federalists. That's the central political issue of the day. And Marshall doesn't even get to it. He pulls back, resolves the case on a much narrower ground.

So no, I mean, there are situations where the court obviously has to resolve, as a legal matter, issues that are of great political significance. But as Marshall did, I think it's important to look and see if you can do that on a narrower legal basis. And as Taney did not, I think it's important to recognize there are going to be huge consequences if you do leap ahead and involve the court in politics.

There are many things that can be said about Dred Scott; indeed, Jack Balkin and I published an article, Thirteen Ways of Looking at Dred Scott. And, of course, there is Mark Graber's magnificent book on Dred Scott and the Problem of Constitutional Evil. The Chief Justice would be well advised to spend some of his summer vacation reading Mark's book, so perhaps he would no so foolishly argue that Taney's opinion, egregious as it is in all sorts of moral dimensions, "really had no basis in a proper reading of the Constitution." What Roberts is doing is simply conveying the "judges on a rampage" view of Dred Scott, which allows us, among other things, to avoid coming to terms with the possibilty that William Lloyd Garrison may have been right, that the Constittion really was a "Covenant with Death and an agreement with Hell" and that "honorable" judges had to live up to the deadly bargain (as Joseph Story, far more honored that Taney, did, with arguably lesser legal warrant, in the just-as-egregious case of Prigg v. Pennsylvania in 1842). Moreover, the reason, as Mark spells out absolutely clearly, that Congress could not do anything to "resolve" the slavery dispute (whatever one thinks that should mean) is that the Constitution, both then and now, builds in an indefensible aspect of parochialism in the mindset of both represenatives and senators inasmuch as every single one of them represents only a relatively small group of territorially-limited constituents (and, as I've argued repeatedly, the electoral college mechanism feeds into this by requiring presidential candidates to run "base"-and "borderline/battleground"-state-centered rather than truly national campaigns). Nor were Taney and his colleagues on a rampage; they were accepting a gilt-edged invitation to try to resolve an issue that the legislature had been exposed as incapable of doing so. This is not to say that Taney was "correct," but only that it is patently "incorrect" to say that his opinion, and the opinions of the concurring justices, were any more legally problematic (or more "political") than, say, John Marshall's opinion in Marbury v. Madison. After all, Roberts seems to recognize the importance, with regard to understanding Marbury, of placing it in its political context, as is true ever more so for the companion case decided a week later, Stuart v. Laird, the all-important accompanying case to Marbury, decided a week later in which the Court simply rolled over and played dead before the purge of the Federalist circuit courts by the Jeffersonians.

It is agreed by everyone that John Roberts is very smart, and he actually majored in history at Harvard College. But, of course, so was John Kennedy, who learned his view of Reconstruction from Paul Buck and therefore put forth Andrew Ross as one of his "profiles in courage" for voting against impeaching Andrew Johnson because he had simply failed to be taught what the battle over impeachment really was about, i.e., the extent to which the War was about "regime change" and not simply keeping the Union intact with the ostensibly defeated Southern whites actually gaining enhanced representation in Congress thanks to the undoing of the 3/5 Compromise. As Akhil Amar argued in his Harvard Law Review essay on Heller, the Court, especially its conservative cohort (all educated at "the very best schools") are egregiously ignorant of the details of our history, especially with regard to the runup to the War and its aftermath in Reconstruction. I am afraid that this comment by Roberts is evidence for Amar's argument. To say that Taney should have exercised more Bickelian "prudence" is simply to say that he should have acted even more as a "politician," and it has nothing to do with the legal merits of Taney's arguments. After all, Bickel developed his theory of the "passive virtues" precisely in order to allow the Court, on patently political grounds, to avoid legal hot potatoes. Consider in this context Naim v Naim, the Virginia intermarriage case. I presume that Roberts would agree with that exercise of (perhaps justified) judicial cowardice in enforcing what the majority almost undoubtedly recognized was "the law" following Brown. I'm curious what he thinks of Loving, and if he supports it, is it only because the country had changed between 1956-1969? But, of course, perhaps there's hope for Roberts on gay- and lesbian-marriage, since, as the New York Times notes, politicos, including, alas, the President of the United States, are increasingly lagging the general culture with regard to support for gay rights. So at some point, Roberts may even be willing to enforce the Constitution against "outliers," when it no longer involves taking any risk.

A final point: We'll find out tomorrow what Roberts did in Ricci. But might not one believe that a person so admiring of Marshallian prudence and dismissive of Taneyesque overreaching will find some way, as with the recent Austin, Texas MUD case, to avoid saying anything of interest beyond the very narrow limits of the given case, rather than trumpet the end of affirmative action?


Posted 1:29 PM by Sandy Levinson [link] (30) comments

Boundary-Enforcing Supreme Court Decisions (Part III): How to Recognize Them, Why We Often Don’t

Rick Pildes

In a series of posts, I’ve been discussing what I call the “boundary-enforcing role” the Supreme Court sometimes plays. These are typically cases in which public authorities have engaged in action that seems to many, including the Court, an extreme abuse of authority – a law, regulation, or individual action that is “outrageous” and beyond the pale – but for which the Court cannot easily create a clear legal rule to define the boundary between legitimate and unconstitutionally extreme conduct. At that point, the Court sometimes decides nonetheless to establish that the Constitution does impose some boundary; at some point, such extreme conduct becomes unconstitutional. And sometimes, the Court decides that it should not impose a boundary because any legal rule would be too vague. Moreover, some Justices are regularly much more willing to impose these vague boundaries than others. In thinking about the Court (not just the current Court, by the way) it is essential to recognize this feature of constitutional law, and to appreciate that implicit debates about whether the Court should play this role – among the Justices, and among those who assess the Court’s decisions – recur throughout diverse areas of constitutional law.

Now along comes the Court’s decision in the school-search case, Safford Unified School District v. Redding, to illustrate another key point. How do we recognize a boundary-enforcing decision? And, more to the point, why are some decisions immediately recognized – and reacted to – as boundary-enforcing decisions, while others are not, even though they are similar in character? To take another cut at the issue, why is the vagueness inherent in a legal principle sometimes seen as an enormous problem, and other times largely ignored?

I’ve been using the due process case involving judicial elections, Caperton, as the paradigm of a boundary-enforcing decision. Caperton concluded that at some point (though it cannot be defined with precision) due process requires that judges recuse in the extreme situation of a case pending at the time of a judicial election in which a financially-interested party has become a dominant spender on behalf of one of the judges competing for office. The school-search case arises in a context about as far from judicial elections as possible, but the comparison of Safford and Caperton is instructive. Safford involved conduct the 8-1 Court and many others found extreme and outrageous: the strip-search of a 13-year old girl who school officials believed might be distributing prescription drugs to students and, after searches of her backpack and clothes had turned up nothing, believed might be hiding them in her underwear.

But notice how vague the legal standard is the Court had to come up with to hold this particular extreme search unconstitutional. A school search has to be (1) based on reasonable suspicion at its inception; (2) it has to be reasonable in scope, even if justified; (3) different phases of a search require different levels of justification; (3) in deciding how to apply these principles, school officials have to calculate not just whether a student is violating a school policy or state law, but in addition, how dangerous or serious the violation “is.” And notice a number of bright-line rules instead were available to the Court, some of which would have condemned this search, some not. To list just a few: (1) strip-searches of students are always unconstitutional; (2) or strip-searches are always unconstitutional except for weapons; (3) or, once there is “reasonable suspicion” to search a student – as the Court agrees existed here – then a search is necessarily constitutional; (4) or, the Fourth Amendment does not apply to school searches – a position the Court had rejected long ago in the TLO case and that dissenting Justice Thomas appears to prefer. This is not to criticize the Court’s decision, but to point out that the Court decided a vague, boundary-enforcing decision was better – and that 8 members of the Court agreed with that.

Safford and Caperton end up having a lot in common (though Safford is probably a bit less vague). Yet while there was plenty of criticism of Caperton for being too vague, there was almost none of that for the school-search case. Why? Why is this kind of vagueness taken for granted as fine in some contexts, but not others? For commentators, I suspect it’s partly the difference between a 5-4 decision and an 8-1 one – this kind of issue gets obscured in an 8-1 decision, at least to many. An experienced Court lawyer like Walter Dellinger , writing in Slate, recognizes the similarity between these two cases, despite the different contexts and votes. And perhaps the reactions have something to do with how sympathetic to the outcome commentators are, though I’m not sure how far that goes, since I take some of Caperton’s critics to be sympathetic nonetheless to the outcome there.

In the school case, the Court saw what it regarded as such extreme, outrageous conduct as to warrant a constitutional bar, even as it expressed the terms of that bar in vague ways; school officials and lower courts are going to have to sort out what this standard now means. My main point is to note that fact, to show how more pervasive this boundary-enforcing Court role is than we often recognize, and to raise a question about why we only see it some of the time it is taking place.
Posted 10:49 AM by Rick Pildes [link]

So which state really is "the worst of the worst"?

Sandy Levinson

Illinois attorney C. E. Petit sent me the following post after reading my posting below on the New York and California legislatures:

Hey, I sort of resent the implication of your piece this morning onBalkinization that Illinois isn't even in the running for the most ineptstate government. We have a proud tradition here of extolling, not just tolerating, our political corruption! If you think it's tough to lose a legislative race in the New York statesenate, try losing one in the Illinois State Senate if you've got party-leadership support. And if you think the chamber leadership in NewYork has a stranglehold on things, remember: Here, the daughter of the Speaker of the state House is the state's elected Attorney General and a leading candidate for governor in the 2010 election to replace Rod Blagojevich (and the creature who lives on top of his head).

I certainly don't want to be "unfair" to Illinois, which seems to have a habit of electing governors who turn into felons, not to mention the bizarre appointment of Sen. Burris this past January (though I continue adamantly to oppose the proposed Feingold amendment to require popular election of any and all senators who are filling vacancies). I am genuinely curious, though, how much of the Illinois situation is the result of an arguably defective state constitution--and whether there is any pressure buildling up for a rewriting of the document--and how much is attriutable, as Mr. Petit suggests, to the hammerlock enjoyed by party leaders, which may or may not be correctible through structural reform of the constitution. And at least the Speaker's daughter will have to run for election, unlike Lisa Murkowski, who got to the US Senate from Alaska, by appointment of her father, the Governor. Nebraska's unicameral legislature is, I believe, notionally "non-partisan," but I'm also quite confident that candidates are readily identifiable as linked with the Democratic or Republican Party (as when they run for the national House or Senate). I'd appreciate any input from Nebraska readers as to their perception of their state government.

Certainly partisans of other states might want to be heard. Texas is unusually dreadful in failing to have anything close to a professional legislature--it meets for 140 or so days ever two years, and legislators are paid $7200/year. Moreover, the governor, who is otherwise fairly weak (a fact that Al Gore never was able to bring to the voters' attention in 2000) has the powers of a constitutional dictator with regard to the ability to veto any and all legislation upon the departure of the legislature, which has no opportunity to override these vetoes. And, of course, we elect every single judge, for four- or six-year terms, in partisan elections. (I confess to having mixed feelings about the ostensible merits of an appointed judiciary over an elected one. There is certainly no reason to believe that the appointment process of federal judges is less "political" than are elections; it's simply that the politics of the latter are far more transparent.) And, of course, Louisiana almost always provides examples to warm any cynic's heart. Again, though, I'm primarily interested in defects that can, as in Texas, New York, and California, be directly traced to hard-wired aspects of the state constitutions.



Posted 3:08 PM by Sandy Levinson [link] (43) comments

The Rationing Scare

Frank Pasquale

The opposition to real health reform boils down to two lines of attack: 1) the government will spend too much money and bankrupt us or 2) the government will spend too little money and ration our care. To the extent I can find people who make the first point while also opposing the many recent tax giveaways to the very wealthy, I'll try to engage them. The rationing point is more interesting, but needs to compare reform proposals to the status quo--not some big rock candy mountain of free and fabulous care for all.



As Christopher Beam at Slate has helpfully pointed out, in the US, there "already is rationing—it's just rationing by income instead of by efficiency." In a devastating commentary on Scott Gottlieb's Wall St. Journal opinion piece describing reform as rationing, Nathan Cortez, a professor of health law at SMU, describes the many misconceptions behind the recent rationing scares:

[Gottlieb] warns that rationing is “a European import,” as if no health insurer in the United States has ever had to draw the line somewhere and decide what not to pay for. . . . [Moreover,] we’re not exactly strangers to these organizations in the United States. Gottlieb . . . [ignores] our home grown organizations, like the Agency for Healthcare Research and Quality (AHRQ), which makes new technology assessments for Gottlieb’s old agency, CMS, and supports comparative effectiveness research. Or the Medicare Evidence Development and Coverage Advisory Committee (MEDCAC), which also performs new technology assessments.

In fact, it’s no secret in Washington that Medicare has long considered some amalgam of cost effectiveness and comparative effectiveness in its coverage decisions, even if nothing in the Medicare statute explicitly allows it to do so. (CMS has long stretched the definition of “reasonable and necessary” in section 1862(a)(1)(A) of the Social Security Act to fit its fiscal realities, even if CMS or its precursor, HCFA, haven’t been successful in cementing cost effectiveness as a formal criterion, as evidenced through failed rulemaking in 1989 (54 Fed. Reg. 4,302) and 2000 (65 Fed. Reg. 31,124)). And just as importantly, private insurers make cost and comparative effectiveness determinations too[.]

As I've described before, private insurers' cost-effectiveness determinations can be a valuable service. However, Wendell Potter's recent testimony on Capitol Hill indicated that such determinations are often eclipsed by a more profitable strategy: dropping unprofitable customers.

[E]xecutives of three of the nation’s largest health insurers [have] refused to end the practice of cancelling policies for sick enrollees. Why? Because dumping a small number of enrollees can have a big effect on the bottom line. Ten percent of the population accounts for two-thirds of all health care spending. The Energy and Commerce Committee’s investigation into three insurers found that they canceled the coverage of roughly 20,000 people in a five-year period, allowing the companies to avoid paying $300 million in claims.

They also dump small businesses whose employees’ medical claims exceed what insurance underwriters expected. All it takes is one illness or accident among employees at a small business to prompt an insurance company to hike the next year’s premiums so high that the employer has to cut benefits, shop for another carrier, or stop offering coverage altogether. . . . The purging of less profitable accounts through intentionally unrealistic rate increases helps explain why the number of small businesses offering coverage to their employees has fallen from 61 percent to 38 percent since 1993, according to the National Small Business Association.

My colleague John Jacobi sheds light on another aspect of private insurer rationing--running away from covering the chronically ill.

We ought not rely on self-interested market participants and expect them, all else being equal, to act contrary to their own self-interest. . . . [Purely] private markets for health coverage might make sense if health costs were homogeneously spread, or even if high costs occurred unpredictably. In a world where a large number of Americans are predictably poor bargains for insurers due to known chronic conditions, we need, as an option, an entity whose sustainable, reliable mission is to provide good, economical coverage for those who most need care, and who incidentally represent a substantial portion of our health care budget.

Health reform that does not address "rationing as risk selection"--and that does not encourage evidence-based medicine based on cost-effectiveness analysis--is no health reform at all. I just hope the blogosphere can help us avert the "triumph of misinformation" that derailed reform during the Clinton administration.


Posted 12:35 PM by Frank Pasquale [link]

Further thoughts on constitutional reform in New York

Sandy Levinson

I may have been unfair to California in some of my comments a couple of weeks ago, for New York's legislature must be, by any reasonable account, the most truly dreadful in the country right now. So the obvious question is why is a sophisticated state like New York saddled with a legislature that would bring shame to most "third-world" countries? There is an interesting piece in the New York Times discussing this. I excerpt some of the key paragraphs below:

.... [F]or those wondering how Albany could have sunk to the level it has, with the State Senate unable to function, one good answer is the extraordinary comfort among the state’s legislators that comes with knowing that they will almost never be voted out of office.... Last year, more than half of the 212 legislators in the Senate and Assembly won with more than 80 percent of the vote. Fifty-seven ran unopposed,.... The average senator has served for nearly seven two-year terms.

So, to quote Lenin, what is to be done?

[The piece notes that Rudy Giuliani] called for a constitutional convention to initiate a broad government overhaul. Gov.David A. Paterson said that a convention would inevitably be run by “the same special interests that have come to dominate establishment Albany,” and suggested passing campaign finance reform legislation.

Others have called for Senate leaders to resign. Rick Lazio, a Republican weighing a race for governor, said that the state should scrap the entire Legislature and begin anew with a single house.

Paterson's point is relevant if and only if the selection process for a state constitutional convention is skewed in favor of the status quo. The easiest way to prevent that is by random selection of a state-wide "citizen jury." As for Lazio's idea, I tend to think that New York, like Texas, is probably large enough to benefit from a second house, but that one could be far more imaginative in constructing a second house than is now the case in the states, where senators are simply represenatives with more constituents in geographically larger areas. But I commend Lazio for actually suggesting that structures might matter, and that looking at the structure of New York's legislature might be more cogent than passing a campaign finance bill that would be spectacularly unlikely to cure the ills that ail New York politics. And maybe Lazio is right, that New York could in fact emulate Nebraska in its unicameralism or, perhaps more to the point, follow the model of the United Kingdom, which retains a second house, but with very limited powers. American bicameralism, at the state as well as national level, is relatively atypical in giving each house an absolute veto over the actions of the other. Most bicameral systems have ways of breaking deadlocks.

Wouldn't it be wonderful if constitutional conventions occurred in the next couple of years in both New York and California and ordinary citizens, selected at random, actually demonstrated that cogent discussion, and even some relevant reforms, are possible even in the states that currently lead the way as examples of completely dysfunctional political systems? Perhaps federalism would actually work, for once, and provide a model of democratic deliberation that might actually register on the general American public with regard to the national political system. I realize this is probably a utopian hope, but is the alternative simply to accept, like sheep, the status quo in California, New York, and the country at large, regardless of the consequences for the ordinary people being subjected to the dysfunctionalities? New York and California don't have to have a Grand Ayatollah that suppresses popular revolt. Instead, people simply believe that nothing can be done. The System prevails, as life goes on and we all hope for the best.



Posted 12:16 AM by Sandy Levinson [link]

The Unconventional Economics of Health Care

Frank Pasquale

In a response to one of my posts on the public plan, Tyler Cowen noted that it was "hard to translate" my points into "econspeak." I agree, and I think that's one reason why we need to pay attention to "alternative economics of health care," to use the title of Geoffrey M. Hodgson's excellent article. In a series of posts over the next few days, I will focus on the many ways in which classical economic reasoning fails in the health care context, and what that means for law.



For an accessible opening example, consider Charles Morris's description of the "bargaining" between doctors and insurers in his book "The Surgeons." From a chapter entitled Money, here is a fascinating and counterintuitive insight on the interplay between incentives and medical care:

There is a strongly held opinion, particularly among conservative think tanks, that with multiple competitive private payers, the normal interactions between vendors and payers will gradually create a more efficient health care system. I saw no evidence to support that belief.

What actually happens [at the hospital division he observed was that] the billing staff sit down each year; lay out the various payment plans on a spreadsheet, and decide on the division strategy--which surgeons will join which plans, and which carriers will be carried on a nonplan basis, trading higher payments for greater collection risk. Once that strategy is set, it is managed entirely by the collections staff. The surgeons simply join the plans they're assigned to.

It is an interesting collision, I think, between two quite rational, but alien, thought systems. Classical market economists tend to define rationality as maximizing economic outcomes. The division's equally rational strategy is to neutralize the plethora of payment incentives so the surgeons can practice their craft according to their lights, with minimum economic penalty.

This is a contest that the surgeons will almost always win. Health care pricing doesn't work like a grain auction. The terms of insurance company health plans are set bureaucratically and changed only infrequently with very little feedback on actual vendor behavior. And the plans are so complex, and the course of a difficult case so unpredictable, that it is often impossible to know in advance what a final price will be. For all those reasons, game theory would suggest that the surgeons' "neutralization" strategy is the sensible choice.

It is not that classical economics has no relevance to big-ticket health care--the proliferation of specialty hospitals suggests otherwise. But it is not the dominant paradigm within the Columbia-Presbyterian cardiothoracic division, or even a particularly important one. In other words, attempting to re-envision big-ticket medicine as a conventional problem in microeconomics may be what Alfred Whitehead called a "category error."

Anyone familiar with the "health claims arms race" shouldn't be surprised by this. But it is still refreshing to see it so clearly and compellingly explained.

Hodgson explains in some detail why these "slippages" between economic theory and practice occur. Here's a precis of his approach:

Leading mainstream health economists suggest that health care has special features that make it different from other domains of application, posing restrictions on the appropriateness of some neoclassical assumptions. . . . [T]he literature points to the presence in health care of externalities, information asymmetries, uncertainty, supplier-induced demand, and derived demand. But while all these features are important, they are neither universal in health care systems nor unique to them.

I try to identify the peculiarities of health care systems by building on the neglected but vital concept of need. By contrast, mainstream economics starts from the subjective satisfaction or utility of the individual. Modern mainstream economics rejects or ignores the concept of need, but many leading economists from Adam Smith to Alfred Marshall have acknowledged objective needs as well as subjective satisfactions.

Does recognition of need for care obliterate the role of markets? No, but it does help us see why so much nonsense is being spouted in the current debate. And it leads us to shift from the classical economic problem of market design to the broader social science project of proper institutional design:

While shifting the analysis from a utility-based to a needs-based approach, it is not naively assumed that health authorities or professionals always know best. Indeed, the problem is one of institutional design where knowledge is developed and distributed, and where mistakes become useful cues for learning and adaptation.

The better we understand the counterintuitive economics of health care, the more we are able to see the need for a "public option" to shake up the entrenched dynamics of a broken health care marketplace. As Michael Grunwald notes, "If Medicare takes the lead in reform, private insurers should follow."

PS: For the best recent cases made for the public plan, see these articles by Nate Silver, John Jacobi, Nicholas Kristof, Robert Reich, and the NYT Editorial Board.)

Hat Tip: Andrew Sullivan and Daniel Goldberg.

X-posted: Concurring Opinions.


Posted 10:49 AM by Frank Pasquale [link]

The Constitution in 2020 at ACS

JB

Here is the panel discussion at last week's American Constitution Society Convention on The Constitution in 2020, moderated by Reva Siegel and myself, and featuring William Forbath (Texas), Rachel Moran (Berkeley/Irvine), Dean Larry Kramer (Stanford) and Vicki Jackson (Georgetown).

It was an interesting discussion of progressive visions of the Constitution, with an emphasis on the themes of constitutional fidelity to text and principle, the role of social movements and the political branches in constitutional interpretation, and the need to redeem the Constitution in our own time.





Posted 7:09 AM by JB [link]

Caperton and Boundary-Enforcing Justices Part II: How Vague Law Can Create Stable Outcomes

Rick Pildes

In a previous post on Caperton, I suggested a fundamental but insufficiently appreciated distinction between Justices who consider it essential to enforce outer boundaries on political processes, even if those boundaries can be defined only vaguely, and Justices who believe that unless legal decisions can be expressed in the form of relatively clear rules, the Court should stay out of a problem altogether. I suggested this distinction is key to understanding Justice Kennedy (and Justice O'Connor before him), and to recognize that this is part of what has made them the "swing Justices" over the last 20 years. And I noted that academics would always criticize boundary-enforcing Justices and decisions, because by their very nature, these decisions cannot generate relatively clear, bright-line legal principles that enable the decision to be enforced in a fairly determinate way.

Now along comes the always-insightful Linda Greenhouse to perfectly illustrate what I mean. In a recent post, she criticizes Justice Kennedy's opinion for precisely these reasons:

The case was latched onto by a whole bunch of well-meaning folks who thought they could use it as a poster child for what's wrong with a system in which judges must run for election and raise money to do so. But its facts are so extreme that it can in no way be described as typical, and it produced an opinion so qualified and so tied to those facts, it's impossible to state the holding accurately in a way that has any utility for the nonextreme, and hence less visible and perhaps more troubling, situations that come up when judges have to run for office or retention. The real fight in this case was evidently in conference, in a closed-door debate that went on for weeks over whether to grant it. I'm sorry that they did: The case promised more than it could possibly deliver, while doing very little to clarify a judge's duties in ethically ambiguous situations.

Linda's commment provides an opportunity to turn to the next stage in unpacking the Court's boundary-enforcing role. Having identified the existence of this concept, I want to assess it a bit, or at least say a few words about the considerations that should go into assessing it. Decisions like this typically spawn two criticisms: (1) they are vague and will cause confusion, chaos, and the like among lower courts and those who have to comply -- this is the primary criticism in Chief Justice Roberts' dissent; (2) they are not likely to do much good because the facts in such cases are usually extreme and atypical -- this is Linda's complaint. Put together, the complaint is too little benefit for too much cost.

My main point is that these kind of complaints are always defective, at least without deeper institutional analysis. They are defective for the same reason: they view a Supreme Court decision as an isolated atom, as if it exists in a legal universe of its own, instead of as part of a larger legal and political system. Vague Supreme Court law can nonetheless lead to stable legal/policy outcomes. Caperton is a good example: as has begun to happen already, there is no doubt the case will lead to state-level reform of judicial ethics rules and practices, whether through statute, codes of judicial ethics, or state court rules. All that will happen without further federal due process litigation, which will probably continue to play a minor role. The question is not what a Supreme Court text says as text, it is how other actors will internalize and respond to the decision. This affects both standard criticisms: (1) vague Court decisions might generate much less confusion, uncertainty, and hence costs, because other actors will elaborate the decision; (2) the benefits can be much greater, because other actors, located in other institutional contexts, can expand the Court's principle beyond where formal constitutional doctrine stops. Of course, the values underlying the vague decision must be "right," but neither Linda nor Chief Justice Roberts seems to be complaining about that in Caperton. Their implicit premise is that Court doctrine must be self-enforcing; what they fail to consider is that the enforcement might include other institutional actors not constrained in the same way the Court is.

Finally, the criticism that vague Court decisions cannot be administered is not always wrong. But nor is it always right. Whether it is right depends on context. But that means the criticism, standing alone, is not sufficient. What is required is judgment about how the rest of the institutional system will absorb and respond to the Court's decision.
Posted 2:15 PM by Rick Pildes [link]

The Supreme Court as the Husband in a French Farce

JB

Ari Shapiro's NPR story on The Constitution in 2020 has several quotes from Reva Siegel and from me on the emerging liberal vision of the Constitution. Eric Posner, in the meantime, manages us to outflank us so vigorously on the right that he loops around to critical legal studies land, arguing that originalism and living constitutionalism are both bunk, and that it's all just politics:

A Living Tradition

Yale law professor Reva Siegel is one of the progressive legal scholars at the forefront of this debate. She argues that judges can neither ignore the past nor give it unquestioning loyalty.

"The Constitution is neither an agreement that was made by persons long dead, nor is it something that simply reflects the understandings of living Americans," Siegel says. "In fact, it's a living tradition that links the struggles, commitments and beliefs of Americans past, present and future."

Siegel co-edited the new book The Constitution in 2020 with Yale law professor Jack Balkin.

Balkin argues that the Founding Fathers intentionally made some passages of the Constitution very specific — such as the requirement that the president be at least 35 years old — and other passages intentionally vague.

"They spoke in general terms because they expected that people who came along later would have to do their part," Balkin says. "They would have an obligation to continue the project."

Balkin describes that project of ongoing interpretation as true constitutional fidelity.

'Gobbledygook'

"I think that's gobbledygook," says Eric Posner, University of Chicago law professor. "It's just kind of a pun on what fidelity means."

Posner says he believes neither in originalism nor in the academic philosophies that liberals are describing.

"They have to come up with a better idea," Posner says. "And instead of coming up with a better idea, I think they're trying to figure out what the PR angle of originalism is and how to duplicate it."

Posner says he believes everyone is trying to disguise the fact that judges are basically political actors, on the left and right.

Even if these progressive ideas take hold, the courts will not shift any time soon. The Supreme Court has five solid conservative votes, and one new nominee won't change that.

Balkin is not worried.

"My view of the Supreme Court is sort of like the husband in the French farce," Balkin says. "He's always the last to know."

Balkin adds, "Essentially, stop bothering about the Supreme Court. Start thinking about what the Constitution means in the general public. The courts will catch up in good time."

Posted 10:00 AM by JB [link]

“There is no prison rape issue. There is only the prison issue.”

Alice Ristroph

Yesterday, the National Prison Rape Elimination Commission issued a report on sexual abuse in prisons. The Commission and its report are products of the 2003 federal Prison Rape Elimination Act. Among the findings of the report: 4.5% of prisoners report being the victim of at least one act of sexual abuse in the past year; victimization rates among juvenile prisoners are much higher (around 20%); abuse is reportedly perpetrated by correctional officials more often than by other prisoners; and reports of abuse are often ignored by prison officials. I was struck by the report's doggedly optimistic “finding” that “sexual abuse is not an inevitable feature of incarceration.” A few years ago, I argued that in many ways, prison sentences are inherently sexual punishments.

Advocates have worked very hard to end tacit (or even explicit) acceptance of prison rape, so the claim that sexual coercion is endemic to incarceration seems a step backward. Nevertheless, I’m not sure we’ll do much to address the problem if we are not honest about its causes, and I think we’re likely to exacerbate the problem if we seek to make prisons still more prisonly (as the report’s recommendations of increased surveillance seem to do). There is reason to believe that the American approach to mass confinement tends to produce sexual abuse. In particular, the rigorous control of every detail of prisoners’ lives—including, in many prisons, the prohibition of any consensual sexual contact—seems to turn some prisoners into vulnerable, infantilized beings and others into aggressors ready to seize any opportunity to assert power. (For those who think it can’t be done otherwise, contrast this recent article on an American prison with this description of an Austrian one.)

In the words of one prison rape survivor:

[T]he issue of confinement itself … is by far the most important issue, for all the coercion, trauma, the demasculization, the degradation are inherent in this abomination, with only differences of degree—important as they may be to us inside—between one human zoo and another. Part of that confinement is what confines us to each other, barring us from sexual and emotional contact with those on the Outside. There is, ultimately, no prison rape issue. There is only the prison issue.

Stephen Donaldson wrote those words while incarcerated in 1980. Later, he would form an organization called Stop Prisoner Rape (now Just Detention International). As his organization’s original name suggests, it is probably too extreme to insist that there is literally “no prison rape issue.” But it seems fair to insist that prison rape is a prison issue, and it is one more reason to rethink the sentencing policies that have given the United States the largest prison population in the world.

Posted 8:55 PM by Alice Ristroph [link]

Debate on the Future of the Voting Rights Act

Heather K. Gerken

For those interested in the ongoing debate over the Court’s recent voting-rights decision and the future of Section 5, there's a sensational discussion going on over on Rick Hasen's Election Law Blog here. It has posts from some of the best people in the field. Well worth a read.
Posted 1:33 PM by Heather K. Gerken [link]

Look Out Gitmo, Congress is Back

Deborah Pearlstein

First, my thanks to Jack Balkin for the kind invitation to join the conversation here at Balkinization from time to time. I’ve been following developments in Guantanamo and related counterterrorism detention and trial issues for a while (e.g. here and there), and am from that part of the academic universe still mourning Marty Lederman’s departure from the blogosphere.

With rumors now flying fast and furious that the erstwhile senatorial trio of Graham, Levin, and McCain are hoping (against hope) that the third time will be the charm on legislative efforts to resolve the mess at Guantanamo, it might be too easy to overlook the already bad Gitmo legislation (attached to a war funding bill) the President appears poised to sign into law any day. Scotusblog has the key provisions here. In addition to requiring the administration to submit regular reports to Congress on the legal status of all of the current Gitmo detainees, as well as a “summary of the evidence, intelligence, and information used to justify the detention of each detainee,” the legislation bars the use of any funds for the transfer of Gitmo prisoners to the United States, either for release or continued detention. The legislation also bars the administration from transferring any Gitmo detainee to the United States for criminal prosecution until 45 days after the President submits a plan detailing, among other things, how he plans to address the national security risk that such a transfer poses. And it bars the President from transferring any Gitmo detainee to any other country in the world unless the President first submits to Congress (15 days in advance) the “terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.”

I'd welcome informed disagreement, but the ban on detainee transfers to the U.S. seems to me without serious justification as a matter of policy. (That is, its existence seems less a function of any real fear that an actual terrorist might escape a Supermax detention facility, and more – pure speculation - a result of accepting some congressional gamesmanship now in the hope of preserving a chance to pass health care reform later this year.) The more interesting question floating around is whether it might be vulnerable as a matter of law.

A few legal theories come to mind; none seems all that plausible. Theory 1 is that this kind of restriction is an unconstitutional infringement on the President’s power as Commander in Chief (hat tip: John Yoo). If this were the Bush Administration, one would now be hearing a vigorous argument that Congress cannot micromanage the executive’s decision-making about precisely where to house and how to dispose of people who are effectively prisoners of war. That one is not hearing such an argument from the Obama Administration is a hopeful sign, consistent with its abandonment of inherent executive authority arguments in the detainee habeas cases now making their way through the courts. It is also a sign that it is not a very good argument. Congress has express constitutional power to define and punish offenses against the law of nations, and to make rules concerning captures on land and water. The Geneva Conventions (ratified by the Senate) regulate the heck out of how the executive handles armed conflict detainees. So it seems as though whatever power the Commander in Chief has in this area, he lost this particular prerogative a while back. (Theory 1.5 might be that by putting conditions on the President’s ability to criminally prosecute these detainees, the legislation infringes on the President’s constitutional authority to “take care” that the laws are faithfully executed. But the restriction here is more in the nature of a burden on prosecution rather than a bar. Congress is sharing authority, not usurping it.)

Theory 2 is that the legislative restriction on the possible disposition of this particular, identifiable set of detainees functions as a bill of attainder. As it stands (or as it stood when they were captured), some of the Gitmo detainees might have had, for example, claims for asylum in the United States. This legislation effectively conducts an asylum-proceeding-by-legislature, an adjudicative function that properly belongs with the courts. But the core of the Bill of Attainder Clause as I understood it (reaching back a ways here) was that it was meant to prevent trial by legislature, an adjudicative proceeding that imposed pains and penalties on identified individuals, or that otherwise deprived them of liberty or property they otherwise possessed. Does the ability to file a speculative claim for asylum count? Maybe, though given the current state of asylum law, doubtful. More, though, the bill is written as a funding restriction. It doesn’t actually deprive these individuals of the right (for example) to seek asylum someday. It just doesn’t let the President transfer them to the United States first.

As with virtually everything to do with Guantanamo, we may yet see this litigated. In the meantime, I’m left with increasing pessimism about the ability of Congress to contribute helpfully to the problem of Guantanamo, and increasing certainty about the likelihood that it will contribute.

Labels: Guantanamo

Posted 1:16 PM by Deborah Pearlstein [link]

Another call for a constitutional convention

Sandy Levinson

Posted 11:19 AM by Sandy Levinson [link] (48) comments

Paging Dr. Gawande: Health Reform Matters

Frank Pasquale

Atul Gawande's article "The Cost Conundrum" has become a cause celebre in policy circles. The Obama White House is reading it, leading journal Health Affairs has sponsored a roundtable on it, and pundits across the political spectrum are invoking it.

There are good reasons for all the attention in health reform circles. But there's a paradox here, too, because Gawande doesn't believe that changes to health care finance and regulation can deter the wasteful and uncoordinated provider behavior which he sees at the root of the present crisis. I respectfully disagree. Law may not be doing a good job at this now---largely because health care regulators over the past 20 years vastly overestimated the degree to which the market would improve quality and access. But we have a rare window of opportunity to correct for those assumptions. Moreover, without real reform, the profit-obsessed providers who are the villains of Gawande's piece will systematically outcompete the integrated delivery systems he champions. Gresham's Law applies in health care, too.

First, some background. Gawande compares a high-cost Texas town (McAllen) with a nearby, low-cost one (El Paso). He finds very little in the McAllen extravagance that is actually improving the longevity or quality of life of its residents. The piece describes in some detail how commercial imperatives affected medical practice in McAllen:

[M]any physicians are remarkably oblivious to the financial implications of their decisions. They see their patients. They make their recommendations. They send out the bills. And, as long as the numbers come out all right at the end of each month, they put the money out of their minds.

Others think of the money as a means of improving what they do. They think about how to use the insurance money to maybe install electronic health records with colleagues, or provide easier phone and e-mail access, or offer expanded hours. They hire an extra nurse to monitor diabetic patients more closely, and to make sure that patients don’t miss their mammograms and pap smears and colonoscopies.

Then there are the physicians who see their practice primarily as a revenue stream. They instruct their secretary to have patients who call with follow-up questions schedule an appointment, because insurers don’t pay for phone calls, only office visits. They consider providing Botox injections for cash. They take a Doppler ultrasound course, buy a machine, and start doing their patients’ scans themselves, so that the insurance payments go to them rather than to the hospital. They figure out ways to increase their high-margin work and decrease their low-margin work. . . .

In every community, you’ll find a mixture of these views among physicians, but one or another tends to predominate. McAllen seems simply to be the community at [the high-cost] extreme.

Gawande describes a market gone wild in McAllen, where doctors would demand "four or five thousand [dollars] a month" or even sex in exchange for routing their patients to certain home health agencies.

How does such a culture of commercialization develop? Gawande is not a social scientist, but he can extrapolate from his own experience. He knows how physicians mentor one another and provide models of care. He also mentions the work of Woody Powell, who examines how certain leading institutions can set the tone for much of an economic community. These "anchor tenants" led McAllen's "medical community . . . to treat patients the way subprime-mortgage lenders treated home buyers: as profit centers."

Gawande contrasts McAllen with several centers of excellence in health care, including the Mayo Clinic and a Grand Junction, Colorado network of physicians. Mayo doctors are salaried, and in Grand Junction "the doctors agreed among themselves to a system that paid them a similar fee whether they saw Medicare, Medicaid, or private-insurance patients, so that there would be little incentive to cherry-pick [and lemon-drop] patients." A local HMO encouraged the Grand Junction doctors to meet and "focus[] on rooting out problems like poor prevention practices, unnecessary back operations, and unusual hospital-complication rates." As a result, quality improved, cost declined, and Grand Junction Medicaid patients enjoyed higher rates of effective access than average.

It would seem that a health reform ought to focus on encouraging these types of interventions. But in an interview with Ezra Klein, Gawande is strangely agnostic on whether law can change much:

My vantage point on the world is the operating room where I see my patients. And trying to think about whether a public option would change anything didn't connect. I order something like $20,000 or $30,000 of health care in a day. Would a public or private option change that?

People say that the most expensive piece of medical equipment is the doctor's pen. It's not that we make all the money. It's that we order all the money. We're hoping that Medicare versus Aetna will be more effective at making me do my operations differently? I don't get that. Neither one has been very effective thus far.

I think there are several misconceptions in that quote. First, the public option is not designed to displace private insurance. It's supposed to be a benchmark for private plans, to incentivize them to act more constructively. Second, Gawande is here invoking his own perspective, that of "good" physicians, those who push "the money out of their minds" as they decide courses of treatment. Law, as Justice Holmes reminds us, should be written and interpreted with the proverbial "bad man" in mind, who "cares only for the material consequences which [knowledge of law] enables him to predict."

Many of the rules of health care finance and regulation address exactly the types of problematic behavior discussed in the article. Niche facilities and imaging centers are at the cutting edge of the commercialization Gawande worries about. Lawyers have debated them for years, and the policymaking is still ongoing. HHS set a moratorium on the development of specialty hospitals in 2003, but it expired. This led to a flurry of interest in administrative action designed to address specialty hospitals' "cherry-picking" of lucrative patients and "lemon dropping" of costly cases onto other hospitals. Something as obscure as "certificate of need" rules (operating at a state level) have proven critical in determining the spread of specialty hospitals. Reports from the GAO and the Medicare Payment Advisory Commission have investigated their impact, while CMS rulemakings have focused on re-assessing payment levels for procedures at ambulatory surgical centers. Antitrust litigation could also play a pivotal role in the struggles between general and specialty hospitals for what Gawande calls the "soul of medicine."

In the article, Gawande repeatedly talks about "blunting financial incentives" for bad medicine or patient cherrypicking. But that's exactly the charge of the Medicare Payment Advisory Commission (MedPAC) in its examinations of developments like niche providers. State policymakers can also reflect these concerns in various ways--adjusting nonprofit status, facilities licensure rules, taxation, and many other legal variables.

In other words, law matters. Sure, all these laws can be bent in ways that favor the further commercialization of medicine. Much of any book on health care finance regulation is a tale of frustrated hopes and dashed ambitions. But this body of law at least provides some tangible guide to past and potential realignments of incentives--something that can't be said for the appeals to cultural change at the core of Gawandean quietism.

Gawande concedes that "In the war over the culture of medicine—the war over whether our country’s anchor model will be Mayo or McAllen—the Mayo model is losing." Calls for cultural change just aren't being heeded---and why should they be? If an insurer develops an extremely effective protocol for dealing with the chronically ill, it will be rewarded by the market with. . . . more expensive, chronically ill patients wanting to sign up for it. As things stand now, providing high-quality care for the chronically ill is a great way to go out of business in virtually any market where your competitors can "skim the cream" of the healthiest half of the population, who only demand about 3% of health care spending. Health reform (including real risk adjustment to properly compensate such plans) can help change that.

Gawande's "Cost Conundrum" could be to health reform what Sinclair's "The Jungle" was to food safety. It explains current trends in the commercialization of medicine better than virtually any journalistic work out there. Sadly, it appears that its author is now more inclined to "stay above the fray" than to try to articulate and lobby for the regulatory infrastructure necessary for the cultural change he so eloquently advocates.

X-Posted at: Concurring Opinions.

Posted 9:53 AM by Frank Pasquale [link]