'Religion' as a Bundle of Legal Proxies: Reply to Micah Schwartzman

Andrew Koppelman

The American legal tradition of giving religion special treatment is justified, I have argued, because when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. Micah Schwartzman argues, in response, that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. I respond to Schwartzman’s critique in a new piece in the San Diego Law Review, available here.
Posted 8:57 AM by Andrew Koppelman [link]

Holt v. Hobbs and Third Party Harms

Guest Blogger

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommo­dating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

Posted 6:11 PM by Guest Blogger [link]

Why even the colorblind should embrace disparate impact law

Joseph Fishkin

On the surface, Inclusive Communities Project, which was argued today at the Supreme Court, is a statutory interpretation case.  The question presented is straightforward: does the Fair Housing Act (FHA) authorize disparate impact claims?  The statutory text is clearly ambiguous; the Justices spent a reasonable portion of the morning’s argument asking imponderable questions about phrases like “make unavailable” and “adversely affect.”  (None of the major statutes courts understand to authorize disparate impact claims originally used the phrase “disparate impact,” which came later.)  Justice Scalia in particular also vigorously pursued a (pretty strong) argument that when Congress went back and amended the statute to carve out certain exemptions from disparate impact claims under the FHA, it must have thought you can make disparate impact claims under the FHA; otherwise the exemptions make no sense.  So far, so statutory.

But you don’t have to dig very deep beneath the surface of this litigation to hit constitutional bedrock.  It’s right there.  As Texas Solicitor General Scott Keller put it this morning: “There is a serious equal protection question lurking here.”  And that’s where the real action is in this case.  Texas’s statutory arguments are pretty modest and pedestrian.  But its “constitutional avoidance” argument is audacious.  And furthermore, it’s tailor-made to fit the peculiar combination of conservative activism and false modesty that has become a hallmark of the Roberts Court.  Disparate impact, Texas urges, is constitutionally suspect under the Equal Protection Clause—not just in fair housing, but everywhere—because it requires race-conscious thinking.  This is a claim articulated most fully (so far) by Justice Scalia in his brief concurrence in Ricci v. DeStefano (and before that, prefigured perfectly by Richard Primus in this article).  Because of the constitutional cloud hanging over disparate impact law, Texas argues, the Court should read the FHA to disallow all disparate impact claims—and call this reading “constitutional avoidance.”

That would kill two birds with one stone.  One: It ends disparate impact claims under the FHA, on statutory grounds (an outcome devoutly to be wished if you are, for instance, a mortgage lender facing potential liability for redlining or some similar practice, as the lineup of amici in this case suggests).  Two: It furthers the longer-term constitutional project that I’ll discuss a bit more below, of interpreting the Equal Protection Clause to bar disparate impact claims under any statute, on the ground that what we might call “disparate impact thinking”—taking into account the racial effects of one’s actions, even when those actions are facially neutral—is constitutionally suspect.  This larger project would reread the Equal Protection Clause to unravel much of the race-conscious, sex-conscious, or otherwise group-conscious statutory framework that was built in the 1960s-70s on the foundation (or so Congress thought) of the Equal Protection Clause itself.  The goal here is a colorblind constitutionalism that casts constitutional suspicion even on actions that are entirely race-neutral, when they are taken for race-conscious reasons, such as to achieve racial integration in housing.  It’s a breathtakingly audacious project.

It won’t work.

To be clear: I’m not saying ICP will win this case.  I’m not saying disparate impact claims under the Fair Housing Act will survive.  They might; it’ll be close.  What I am saying is that the ultimate project of turning the Equal Protection Clause into a charter of colorblindness, prohibiting even facially neutral actions that are taken for race-conscious reasons, will fail.

If you like the colorblind treatment of individual human beings—that is, if you like making sure A is not treated differently from B because of their race—then there are plenty of things you obviously won’t like.  You won’t much like affirmative action, for instance, as we usually use that term today.  But you should love disparate impact law.  That’s because disparate impact law requires what you advocate: it promotes race-neutral alternatives to affirmative action and other similar policies that treat A differently from B.  There was a great deal of confusion on this point today at oral argument (and that is nothing new), but Solicitor General Don Verrilli correctly hit the point pretty hard.  Disparate impact does not press toward quotas.  Remember, disparate impact law does not mean that there is liability any time a practice has a disparate racial impact.  It just means that when something does have a disparate impact, this triggers a further inquiry: is there some good business reason for the practice, or is it more likely the product of something else—biases that are hidden or unconscious, assumptions built unfairly around one group rather than another, structural forms of discrimination, etc.?  Disparate impact law does not involve jiggering to get a particular numerical result—at least not in Title VII, where the law of disparate impact is the most well-developed and clear.  Instead, disparate impact law requires exactly what conservative Justices say institutions must do before engaging in affirmative action: consider race-neutral alternatives—that is, policies that promote equal opportunity without ever treating A differently from B because of either person’s race.

This last point is the core of an important lecture by Reva Siegel, now published here.  It is a point that I expect Justice Kennedy will be thinking about as he decides how to implement his constitutional vision in this domain.  Justice Kennedy has been especially clear about the fact that race-conscious thinking, per se, is not what is verboten under the Equal Protection Clause.  Indeed at times race-conscious goals are a compelling interest under that clause.  (Kennedy is not the only conservative Justice to see this.  Indeed I think the only Justice likely to consistently embrace the position across the board that all race-conscious action is suspect, is Justice Thomas.)  But, if we have a race-conscious goal that is permissible or even compelling, such as integration or equal opportunity, it still matters what means we use to achieve it.  Justice Kennedy argued in Parents Involved for the superiority of employing facially race-neutral means, rather than means that treat A differently from B on the basis of their race.   This argument is the best conservative argument for disparate impact law.  The remainder of this post will unpack some of these claims—and spell out what’s at stake here for the Fair Housing Act.

Read more »
Posted 11:57 PM by Joseph Fishkin [link]

A Golden Ticket for Mark Christeson

Jason Mazzone

Every now and then, in the style of a papal dispensation, the Supreme Court sets aside the normal rules to give a measure of relief to somebody screwed by the system. Today's lucky golden ticket winner is Mark Christeson, a state death row inmate who sought to file a federal habeas petition but whose lawyers didn't get around to contacting him until six weeks after the one-year AEDPA deadline had passed. After the district court dismissed the petition as untimely, Christeson sought to substitute new counsel to argue that equitable tolling was warranted but the district court denied that application also. The Court of Appeals affirmed. Today, in a per curiam opinion the Supreme Court reversed, holding that substitution of counsel was warranted under the circumstances of the case (the original lawyers could not have been expected to argue equitable tolling where the delay was a result of their own error) so as to be able to pursue the equitable tolling claim. Even if Christeson wins on the equitable tolling argument, he might still lose on the merits of the habeas petition. So the golden ticket might serve only to delay the inevitable. But delay is no small victory in a capital case.  
Posted 5:12 PM by Jason Mazzone [link]

"Thinking About An Agenda for a New Supreme Court"

Mark Tushnet

Posted 12:58 PM by Mark Tushnet [link]

Beyond Intelligence Legalism

Frank Pasquale

Last year, Margo Schlanger, the former Officer for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security, published an important critique of "intelligence legalism," which she defines as "imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers." For Schlanger, such legalism "gives systematically insufficient weight to individual liberty."

In "Infiltrate the NSA," Schlanger takes the argument further, making it clear that there must be personnel with civil libertarian values throughout security agencies, and not just in "Offices of Goodness" charged with vague or weak oversight powers. She proposes that:

Congress and the President should ... [amplify] voices inside the surveillance state who will give attention in internal deliberations and agency operations to civil liberties and privacy interests. If civil liberties and privacy officials inside the NSA, at the White House, and at the FISA court can walk the tightrope of maintaining both influence and commitment, they might well make a difference—both in debates we now know about and others that remain secret.

I agree with this approach. It is critical to complement privacy-by-design as a technological commitment, with institutional guarantors of such values. Administrative, physical, and technical safeguards are critical.

We also need to build in institutional planning simply to understand the scope of surveillance. As of 2010, there were "1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States." That is one reason I made the following proposal in my book The Black Box Society:
Read more »
Posted 12:04 PM by Frank Pasquale [link]

Eric Holder in American History

Mary L. Dudziak

Attorney General Eric Holder's statement on Friday that the administration would likely file an Amicus Brief in the same-sex marriage cases is an example of why I told New York Magazine that Holder is a member of the cabinet likely to be regarded by historians as consequential 20 years from now. Holder said that the government "will urge the Supreme Court to make marriage equality a reality for all Americans.  It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love." When historians look back, the rapid progress on marriage equality will be a striking feature of the early 21st century, and Holder's actions will not be forgotten.

Development of the secret law of surveillance and targeted killing, and the prosecution of whistle-blowers, will not be forgotten either. In LGBTQ rights and security matters, it will be the enduring impact of legal change that will make Holder stand out as more consequential in the future than he may have seemed to be during the administration itself.

Among the 53 historians included in the piece on how historians will look back on the Obama Administration, Joyce Appleby and Charles Kesler agreed with me. Annette Gordon-Reed included Valerie Jarrett alongside Holder in importance. Crystal Feimster, Matthew Lassiter, and Robert Williams listed both Holder and Hillary Clinton. Many others pointed to Jarrett, Clinton or John Kerry. Others noted were: Timothy Geitner, John Brennan, Kathy Ruemmler, Nancy Pelosi, Susan Rice, Elizabeth Warren and Larry Summers. Lots of people included in the article skipped this question.
Posted 3:23 PM by Mary L. Dudziak [link]

Griffin on Zeisberg and the Defensive War Theory

Stephen Griffin

Last October Jim Fleming of BU was kind enough to host me and Mariah Zeisberg for a conference on our recent books on presidential war powers.  I've posted my conference paper to SSRN, commenting on similarities and differences between our books.  The paper also independently includes a substantial critique of the "Hamiltonian" version of the defensive war theory, a key pillar of presidentialist approaches to war powers.  That part of the paper is not meant to be a critique of Mariah's excellent book.  It's just that reading her book reminded me that I could have said more about the defensive war theory in my own book Long Wars and the Constitution.
Posted 10:17 AM by Stephen Griffin [link]

Whither Jurisprudence?

Brian Tamanaha

Scott Hershovitz's "The End of Jurisprudence" is a terrific article. For the past four decades, he asserts, "jurisprudence has been dominated by the Hart-Dworkin debate," and it is time to move on.

Of course, an end to the Hart-Dworkin debate would not
mark the end of jurisprudence. But it would allow us to reorient
jurisprudence toward a different end. For far too long, the field
has been preoccupied by a question that is poorly formed. The
time has come to set it aside and take up a better one.

Hershovitz argues that the debate was framed in terms of metaphysical questions, entrenching a series of confusions, and the whole thing is best left behind.

The time has come for jurisprudence to drop the metaphysics and take up morals. The question that jurisprudence should aim to answer is how our legal practices affect our moral rights, obligations, privileges, and powers. The metaphysical question posed in the Hart-Dworkin debate was a distraction; we have no good reason to think that our legal practices generate a distinctively legal domain of normativity, or quasi-normativity, whose metaphysics we must unravel. But the moral question is vital; it is contested everyday, in court and out, with serious consequences for peoples’ lives.

He makes a powerful argument, wonderfully written and executed. And I wholly agree that the Hart-Dworkin debate, while illuminating, should no longer be central.

Without detracting from his excellent piece, let me express two reservations. First, while he is correct that legal philosophers have long centered on this debate, jurisprudence all along has been broader than this, taking up many other issues and aspects of law. (Legal philosophers sometimes express the view that what they do defines jurisprudence, which Hershovitz implies, but this is wrong.) Many jurisprudence scholars moved on a long time ago (Waldron and Schauer, for example). For this reason, a more apt title would have been "The End of Legal Philosophy." My second reservation relates to his conclusion that jurisprudence "needs a new end," and his proposal that we "worry more about the moral consequences of our legal practices." Though I agree this deserves attention, I do not agree that jurisprudence has or requires a particular end, whether this one or any other. The field thrives best when jurisprudence scholars pursue many different intellectual projects.

In my view, jurisprudence remains vital by focusing on important legal phenomena and by drawing from other disciplines for insights. On that note, I offer my draft essay "What is Law?" It addresses a classic issue in legal theory, is broad in scope, is not about metaphysical questions, and has contemporary relevance (with no mention of the Hart-Dworkin debate). The abstract:

Theorists who tackle “What is law?” usually acknowledge the difficulty of the question, then, with hardly a pause, launch into their proposed answer. Instead, focusing on three main categories of concepts of law, I examine in detail why previous attempts have failed to achieve a consensus. Several factors have contributed. One source of disagreement involves clashes among intuitions about law. Further problems are created by the narrowness of functional analysis, on which nearly all concepts of law are based. Confusion also arises because law shares basic characteristics with many social institutions, as I show drawing on insights from the philosophy of society. Theorists also typically fail to recognize two distinct orientations of law, and multiple forms of law, which singular concepts of law cannot accommodate. Finally, variability and change owing to the social-historical nature of law defeats efforts of legal philosophers to identify essential features and universally true concepts of law. At the conclusion I present a way of understanding law that emerges out of the lessons learned from past unsuccessful efforts.

Here are the topic headings in the essay: Three Categories of the Concept of Law; Pivotal Role of Intuitions About Law; Over-Inclusiveness of Functionalism; Under-Inclusiveness of Functionalism; Why Functionalism Cannot Answer ‘What is Law?’; Error of Conflating ‘Rule System’ and ‘Legal System’; Law as Part of the Institutional Substrate of Society; State Law’s Two Orientations; Coexisting Multiple Legal Forms; Necessary and Essential Features Or Typical Features; Universal Application Versus Universal Truth; What is Law?

Critical comments are welcome by email: btamanaha@wulaw.wustl.edu
Posted 1:30 PM by Brian Tamanaha [link]

Legal Scholarship: The "Star" Footnote

Mark Tushnet

Posted 9:58 PM by Mark Tushnet [link]

Mitt Romney and the Late Regime Politics of the Republican Party

JB

Mitt Romney's announcement that he is likely to run for president would make some sense if Romney is correct that he is best able to unite an increasingly divided and factionalized party. This goal becomes increasingly important the later one goes in a political regime. But at this point in history it may be possible that no one, not even Romney, can manage his increasingly fractious party.

The Reagan regime that has dominated American politics for the last thirty five years appears to be in its last days. Factionalism and radicalism within the party have increased; different parts of the coalition are pulling in different directions. We can see this in the various appeals of people like Rand Paul, Mike Huckabee, Ted Cruz, and Jeb Bush. Meanwhile the base of the coalition is shrinking for complicated reasons, only some of which are demographic.

In late regime politics, party leaders often turn to politicians who hold out the hope of uniting the various factions; in the process these politicians may attempt to revive the coalition by giving it a new direction that can still be broadly acceptable to as much of the party as possible.
Read more »
Posted 12:50 PM by JB [link]

The Black Box Society: Interviews

Frank Pasquale

My book, The Black Box Society, is finally out! In addition to the interview Lawrence Joseph conducted here in the fall, I've been fortunate to complete some radio and magazine interviews on the book. They include:

New Books in Law

Stanford Center for Internet & Society: Hearsay Culture

Canadian Broadcasting Corporation: The Spark

Texas Public Radio: The Source

WNYC: Brian Lehrer Show.

Fleishman-Hillard's True.

I hope to be back to posting soon, on some of the constitutional and politico-economic themes in the book.
Posted 10:27 PM by Frank Pasquale [link]

After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession

Neil Siegel

My colleague Curt Bradley and I are writing the Supreme Court Review piece on NLRB v. Noel Canning. We view the decision as exemplifying the phenomenon of constructed constraint, and we use it as an opportunity both to critique the idea of constitutional “liquidation,” and to defend a version of the “historical gloss” approach to the separation of powers from the charge of blessing expansions of executive power by “adverse possession.”

Here is the abstract:

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a useful entry point into critically analyzing the concept of constitutional “liquidation,” which the majority in Noel Canning seemed to conflate with historical gloss but which seems more consistent with the approach to historical practice reflected in Justice Scalia’s concurrence in the judgment. Finally, this Article argues that the historical gloss approach, when applied cautiously and with sensitivity to the potential concerns raised by Justice Scalia and others, is not vulnerable to the charge of licensing executive aggrandizement by “adverse possession.”
Posted 10:12 PM by Neil Siegel [link]

Obfuscating what judges do

Sandy Levinson

There is an illuminating piece by Stephen Stromberg in today's Washington Post on the utter disaster that will ensue if those supporting the challenge in Burwell prevail before the Supreme Court re the "state" as distinguished from "federal" exhanges. He notes not only that literally millions of people would lose their coverage in Republican states, but also that premiums would likely skyrocket and set up the "death spiral" of health insurance.  The Republicans would get what they've been wishing for (and haven't achieved), which is a true trainwreck (for which they have no plausible solution whatsoever).  But my purpose is not to rant about evil Republicans and their unceasing attempts to torpedo Obamacare (which I'd gladly see replaced by a Canadian single-payer system if that were politically feasible). Rather, I'm interested in the language that Stromberg, a member of the Post's editorial board, uses to describe the stance of the Supreme Corut:

The court can’t base its ruling merely on the possible effects. But the Urban analysis gives a sense of the stakes. It’s astonishing that the coalition challenging the government would welcome such an outcome, creating a policy fiasco where they only imagined one to be before....

Though they have plenty of legal reasons to avoid it, a majority of justices might still rule that lawmakers’ language compels a negative result, detonating the bomb instead of defusing it.

So two things are worth noting:  First, the use of the word "merely" in the first sentence.  Perhaps courts can't base (or, at least, publicly admit that their basing their decisions) exclusively on "possible effects," but, going back to Marbury and foreword to the embarrassing decision a couple of years ago finding a lack of standing in Perry v. Hollingsworth, it's literally impossible to believe that the justices do not regularly take consequences into account in deciding what they do.  The mystery, of course, is why they granted cert in the first place in the exchanges case, given that there are no current conflicts among the circuits, but, hey, they're the Supreme Court, and the four anti-Obamaists can grant cert whenever they want to. 

But what about the notion that "a majority of justices might still rule that lawmakers' language compels a negative result."  Even if we grant, for sake of argument, that the attack on the statute is not frivolous--everyone in the world has to agree that it was poorly drafted in some respects, not least because fanatical Republicans refused to engage in the legislative process that might have alleviated some obvious problems--could any reasonable person believe that the statute "compels" any result at all.  That is, I concede that a judge could argue that the language supports the distinction between "state" and "federal" exchanges and that one shouldn't both putting it within the context of the larger 2000-page statute, though I think that view is, at the end of the day, indefensible save for a kind of legal formalism that is blessedly absent from most of what I call the Constitution of Conversation.  So this means that no judge is "compelled" to decide X or non-X; instead, the judge has to engage in what Mark Tushnet has accurately labeled "judgment," which presumably includes what, overall, is best for the overall polity.  Obviously, if one is a libertarian, then what is best is torpedoing the entire legislation.  But if one is not a libertarian, then what is best is upholding the current law, as it is operating, and leaving it to the political process, such as it is, to cure the defects.  One could do that either because a) one believes, on balance, that Obamacare is a genuine improvement in our overall polity or b) because one actually believes in something called "judicial restraint" that believes that the Court, especially by a 5-4 Republican-Democratic vote, should not undo truly important public policies without extremely good reason (let's call it a "compelling interest").  The proponents in this case offer no such interest:  they offer only a remarkably wooden, non-purposive (or, to be generous, a completely made-up purpose, based largely on the comments of Jonathan Gruber) reading of a single patch of text.

But Stromberg's column illustrates how hard it is to escape the view/hope that suggests that justices live in an apolitical realm where consequences don't matter and the language of complex documents "compels" them to do what they think is really bad for the society. 



Posted 4:05 PM by Sandy Levinson [link] (155) comments

"Popular Sovereignty, Self-Determination, and Secession" (Why Wilson may be more important than Lenin)

Sandy Levinson

To put it mildly, Wilson’s “principles” raise many questions.  Consider, for example, the following commentby Karl Meyer in The New York Times of August 14, 1991,

The Purposes of the United Nations are:

It is now more than two decades since Meyer wrote his column, and we can easily supply additional examples, ranging from Quebec to Scotland to Kosovo to Kurdistan to….  We should be under no illusions that our brief time together will supply anything in the way of definitive answers to the questions raised by Meyer (and many others). but my hope is that we can have illuminating discussions.  The basis of our discussions will be a mixture of traditional “legal” materials, including some cases, and political theory. 
 
The schedule for the symposium is as follows:


Posted 6:21 PM by Sandy Levinson [link]