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Checking the Government’s Deception Through Public Employee Speech

Heidi Kitrosser, The Special Value of Public Employee Speech, 2015 Sup. Ct. Rev. 301 (2016).

Suppose the United States elected a president with authoritarian tendencies. Imagine that the president regularly attacked and undermined institutions and individuals that sought to hold his administration accountable for its actions. Assume, for purposes of the hypothetical, that members of the President’s party controlled both the House and the Senate and saw little partisan self-interest in checking the executive branch. Just pretend.

Under those circumstances, where else might we turn for help in ensuring that our government remains accountable to us? In The Special Value of Public Employee Speech, Heidi Kitrosser reminds us that “government employees are crucial safety valves for protecting the people from abuse and incompetence, given their unique access to information and to a range of avenues for transmitting the same.” More specifically, she points out that the everyday heroism of public employees includes

the simple acts of employees doing their jobs conscientiously and in accordance with the norms of their professions. When employees engage in such behavior – for instance, when government auditors honestly and competently investigate and report in a manner consistent with professional auditing standards – they help to maintain consistency between the functions the government purports to perform and those that it actually performs. In this sense, public employees are potential barriers against government deception. They can disrupt government efforts to have it both ways by purporting publicly to provide a service while distorting the nature of that service. When they do this through their speech acts—for example, by reporting the results of budgetary analyses or scientific studies—they engage in speech of substantial First Amendment value. (Pp. 302-303).

In Garcetti v. Ceballos, however, the Supreme Court interpreted the First Amendment to offer no protection for public employees’ truthful speech in a broad range of circumstances—including their truthful reports of governmental lies and other misconduct. Rejecting a First Amendment challenge by a prosecutor disciplined for writing an internal memo that criticized a police affidavit as including serious misrepresentations, the Court held by a 5-4 vote that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In concluding that a government employer should remain free to assert “control over what the employer itself has commissioned or created,” the majority thus created a bright-line rule that treats public employees’ speech delivered pursuant to their official duties as speech that the government may restrain and punish without running afoul of the First Amendment.

As I have detailed elsewhere, lower courts have applied Garcetti’s bright-line rule to reject the First Amendment claims of a wide swath of government workers punished for reporting all sorts of government misconduct. Examples include financial managers fired after reporting public agencies’ fiscal improprieties; an array of public employees terminated after reporting health and safety violations; public health care workers and public school teachers punished after expressing concerns about patient care and student welfare; and police officers discharged after reporting government officials’ illegal or unethical behavior. As Seventh Circuit Judge Ilana Diamond Rovner explained in one such case: “Detective Kolatski was performing his job admirably at the time of these events, and although his demotion for truthfully reporting allegations of misconduct may be morally repugnant, after Garcetti, it does not offend the First Amendment.”

Some lower courts have even understood Garcetti to mean that the First Amendment offers no protection to public employees punished for testifying truthfully about their on-the-job observations of government misconduct, because such testimony concerns information that they received pursuant to their official duties. The Eleventh Circuit, for example, applied Garcetti to conclude that the Constitution posed no obstacle to the termination of a state employee who testified under oath about his discovery that an Alabama state legislator on a state agency payroll had not been reporting for work. Fortunately, the Supreme Court reversed the lower court, holding in Lane v. Franks that the First Amendment “protects a public employee who provide[s] truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.” In other words, the Court held that Garcetti did not apply, even though the plaintiff’s testimony concerned information related to his public employment, because his ordinary job duties did not include sworn testimony.

In short, Garcetti slammed the door shut on the prospect of First Amendment protection for public employees’ speech pursuant to their official duties. Lane cracked that door a bit, recognizing that “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Whether Lane signals any further limitation of Garcetti, however, remains unclear, as the Court noted that it did “not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties.” Incredibly, we don’t yet know whether the First Amendment protects law enforcement officers and government lawyers who testify truthfully about public corruption when it is their job to do so.

Kitrosser’s valuable article seeks to push the First Amendment door open still wider for public employees. She offers a road map for mitigating Garcetti’s damage by emphasizing the special value of public employee speech to democratic accountability. Here, Kitrosser is pragmatic but optimistic: “The hope is that Lane provides occasion to dig more deeply into both the special value of public employee speech and the government interests at issue and thus to rethink Garcetti entirely. More modestly, Lane can point the way to means by which Garcetti can be limited.”

Kitrosser urges the Court to revise and limit Garcetti to permit the government to discipline public employees for speech that they are hired to produce only when such discipline is based on the government’s genuine, rather than pretextual, assessment of that expression’s quality. Her proposal would protect the special value of public employee speech while recognizing and accommodating public employers’ compelling managerial needs, in that she seeks “not to second-guess supervisor assessments of work product quality, but to smoke out retaliation against work product speech for reasons other than quality”–e.g., public employee speech that discloses “inconvenient” facts or offers truthful but unwelcome analysis.

Most important, “in cases where employees were hired to render independent professional judgment, disappointment with those judgments, not because they reflect low quality, but because they are politically or personally inconvenient for employers, should not be deemed quality-based assessments.” As Kitrosser explains, the government engages in deception when it “hires climate scientists to make climate projections but insists that they alter their findings for political reasons as a condition of their continued employment.” The same would be true of labor economists hired by the government to report unemployment rates. It would apply as well to law enforcement officers hired to investigate, and lawyers hired to prosecute, government corruption.

Kitrosser also identifies more minor doctrinal adjustments as a “second-best, but perhaps more realistic near-term alternative” for limiting Garcetti’s reach. These include “carv[ing] out an exception to Garcetti, a presumption against its application, or at least a factor in weighting against its application whenever truthful reporting of corruption or serious governmental misconduct is at issue,” and “deem[ing] the fact that information was learned on the job irrelevant to this inquiry.” I’d add that legislatures also have an important role to play in enacting statutory protections for public employees who engage in such speech.

In this important article, Kitrosser reminds us that we lose something of great value when government workers can be, and are, fired for telling the truth about their jobs. That reminder is necessary now more than ever.

Cite as: Helen Norton, Checking the Government’s Deception Through Public Employee Speech, JOTWELL (September 25, 2017) (reviewing Heidi Kitrosser, The Special Value of Public Employee Speech, 2015 Sup. Ct. Rev. 301 (2016)), https://conlaw.jotwell.com/checking-the-governments-deception-through-public-employee-speech/.

Individual Rights and Collective Governance

Ozan O. Varol, Structural Rights, 105 Geo. L. J. 1001 (2017).

Ozan O. Varol’s article Structural Rights usefully mixes two aspects of constitutional law that teachers and authors, at least for pedagogical purposes, separate when organizing coverage of their subject. My casebook, for example, covers “structural” features of the United States Constitution, such as separation of powers and federalism, then proceeds to “rights” chapters dealing with, for example, due process and equal protection. Students typically find structural features more difficult and non-intuitive, while they are very comfortable with rights protections for individuals.

Of course, separation of powers and federalism are fairly commonly viewed as liberty-enhancing. The Framers initially thought a Bill of Rights unnecessary: governmental structural restrictions and competing government power centers, they thought, would prevent government oppression. Today, perhaps in part due to the “rights revolution” of the Warren Court, my generation typically views the Bill of Rights and section 1 of the Fourteenth Amendment as bulwarks of individual freedom, central and indispensable to our constitutional order. But the point of the Constitution as a whole was to enhance governance by “We the People.” The rights provisions, as Varol’s article elucidates powerfully, empower rather than merely protect “the People.” They frame and drive our governance structure.

This empowerment works two ways. First, rights empower governmental actors to act on behalf of the people. Congress may protect (but not restrict) free speech and freedom of religion, may grant (but not deny) due process, may enhance (but not undermine) equal protection. The President can enhance freedoms by exercising prosecutorial discretion, and can issue executive orders to expand rights (if those orders are consistent with Congress’ laws and/or have some basis in presidential powers). Further, executive agency interpretations of laws can expand the people’s rights. Lastly, judicial power is enormously enhanced by the existence of rights, for judges interpret the reach and enforcement mechanisms of those rights, sometimes overriding majoritarian decisions by Congress, the President, or the States.

Second, rights are structural bulwarks of our constitutional system of government by the people. Free speech and free press enhance vigorous debate over policy directions, voting protections allow the people to choose and fire their leaders, and equal protection helps avoid marginalization of minority groups in electoral and other processes. Jury trials, by guaranteeing ordinary citizens decision-making authority in criminal trials prosecuted by executive officers, keep government officials from having free rein to punish political enemies or attack those who claim corruption by government officials. Due process takes over as a catch-all even where specific constitutional provisions do not apply.

How about the Second Amendment? Varol argues that:

The “well regulated Militia” in the Second Amendment, characterized as “being necessary to the security of a free State,” invokes the idea of justified resistance against a tyrannical govern-ment. The reference to a “free State” is expressly structural and is considered “necessary” to protect popular sovereignty. Framed as such, the Second Amendment right to bear arms is closely connected to the First Amendment freedoms of assembly and petition. If a tyrannical government remains unresponsive to the people’s demands, expressed through petition and assembly, the people have the collective right to alter or abolish their government.

But the Supreme Court’s focus in Heller was not on the militia, and the purpose it stressed was “individual self-defense.” Perhaps Varol could have assessed the individual right to bear arms as contrasted with arms-bearing militias as a structural bulwark of our system. But what structure does that right support? If the right is to defend against oppression, it fits well into Varol’s framework, but if it is the “right of revolution,” it could destabilize order in our republic. Perhaps this structural observation would support the legality of limiting firearm ownership to “small arms,” in keeping with Heller’s interpretation of the scope of the Second Amendment.

In addition to observing and organizing a wide range of examples of rights which serve structural governing purposes, the article weaves in a bit of economic and political theory. Rights tend to align the agendas of officials with outcomes desired by their constituents and allow voters to “fire” ineffective or dishonest elected officials. Minority rights create constituencies who leverage rights affecting them disproportionately. This leverage in turn may move the broader polity to adopt policies the minorities desire. Examples include racial groups (the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act), women (the Civil Rights Act again, the Violence Against Women Act, and the Fair Credit Reporting Act), and people with disabilities (the Americans with Disabilities Act). Such endowment effects are particularly difficult to dislodge, so these rights and the resulting political culture become self-reinforcing and stable, even if initially contested and contentious.

In short, Varol’s article is a welcome reminder that what we often think of as pure personal rights in fact suffuse not merely our popular culture but also our political institutions. The incentives of those who hold the levers of power in the United States are, through these rights, more closely aligned with the wishes of the people. These rights are structural features for maintaining and stabilizing our republic. They are critical components in maintaining the opening pledge of the Constitution’s commitment to “We the People.”

Cite as: Charles Shanor, Individual Rights and Collective Governance, JOTWELL (August 9, 2017) (reviewing Ozan O. Varol, Structural Rights, 105 Geo. L. J. 1001 (2017)), https://conlaw.jotwell.com/individual-rights-and-collective-governance/.

Does the Constitution Require Due Process Abroad?

Nathan S. Chapman, Due Process Abroad, U. of Ga. Legal Stud. Research Paper No. 2017-07 (2017), available at SSRN.

Do the rights protected by the Constitution constrain United States government actions outside our borders, especially those directed at noncitizens? The longstanding debate over this question has heated up again in recent years. It is one of the issues raised by the litigation over Donald Trump’s travel ban executive order. It is also a key element of Hernandez v. Mesa, a case recently addressed by the Supreme Court that raises the question of whether the Fourth Amendment applies to a case where U.S. Border Patrol agents fatally shot a 15-year-old Mexican boy just across the border.1

Nathan Chapman’s important new article on the application of the Due Process Clause of the Fifth Amendment abroad, is a timely and important contribution to this debate. It compiles extensive evidence indicating that the Clause was originally understood to constrain U.S. government actions outside our territory, regardless of whether the targets are American citizens or not. If so, it may be that other constitutional rights also apply in such situations.

Some scholars have argued that the Due Process Clause applies to U.S. government actions all over the world because the text is phrased in general terms, without territorial limitation. But Chapman is the first to systematically compile originalist evidence defending this position. He considers a variety of federal government law enforcement efforts beyond U.S. borders from the 1790s to the 1820s.

Most of these involved enforcement of federal laws authorized by Congress’s Article I power to “define and punish Piracies and Felonies committed on the high Seas.” They included efforts to suppress piracy and the slave trade, and catch violators of U.S. tariff and embargo policies. Some of these cases also came under Congress’ authority to “define and punish” violations of “the Law of Nations,” though Chapman’s analysis does not indicate any major distinctions in the way the two types of legislation were treated under the Due Process Clause.

Pirates may seem quaint or even romantic today. But in the eighteenth and early nineteenth centuries, they were a serious threat to American and European commerce. Suppressing them was a major objective of early American foreign policy. Yet, as Chapman shows, both Congress and the executive branch consistently concluded that pirates could not be detained and punished without being afforded due process of law, including a trial in a regularly constituted federal court. This was consistent with pre-revolutionary British practice, with the major exception of trials of suspected pirates who were American colonists. The latter were often tried in special vice-admiralty courts.  Americans vehemently objected to this practice and sought to put an end to it.

The same was true of the procedures for detaining and trying suspected slave traders and smugglers. They too were afforded the protection of the Due Process Clause. Such prominent jurists and statesmen as Supreme Court Justice James Iredell, Albert Gallatin (a leading Jeffersonian voice on constitutional issues), and John Quincy Adams argued that this was required by the Constitution.

Importantly, these policies made no distinction between suspected pirates, smugglers, and slave traders who were foreign nationals and those who were American citizens. As President John Adams’ attorney general Charles Lee instructed in 1798, suspected pirates were to be tried in ordinary federal courts, “according to the law of the United States, without respect to the nation which each individual may belong, whether he be British, French, American, or of any other nation.” Similar principles applied to the seizure and condemnation of ships and property used by pirates and other criminals on the high seas.

Chapman shows that most of the contrary evidence cited by earlier scholars involved ships and prisoners taken in war or military operations, such as those against state-sponsored Barbary pirates. Just as we do today, Americans of the Founding era recognized that peacetime due process rules often do not apply in war.

While Chapman’s analysis is wide-ranging and compelling, I wonder if more could be done to consider alternative explanations for  some of his findings. In some cases, for example, it is possible that U.S. officials were reluctant to detain or punish foreign citizens without due process for fear of alienating powerful European governments. The early United States was not the superpower of today, and sought to avoid the wrath of more potent states, particularly Britain and France. The latter might well retaliate for real and imagined abuses committed against their citizens. Still, this concern is partly obviated by the fact that many of the cases discussed by Chapman involved officials framing their concerns in explicitly constitutional terms.

At least for constitutional originalists, Chapman’s findings have substantial implications for the present day. The Due Process Clause indicates that the government may not deprive individuals of “life, liberty, or property, without due process of law.” A substantial range of federal government activities abroad do just that. As Chapman explains, they include extraterritorial kidnapping and detention of criminal suspects, shootings by law enforcement officers (including the one at issue in Hernandez v. Mesa), and searches and seizures of property abroad for the purposes of obtaining evidence for prosecution. Whether or not the Fourth Amendment or other parts of the Bill of Rights apply to these situations, they all involve the deprivation of “life, liberty, or property” without the process typically required inside the U.S.

Chapman’s findings also have potential implications for extraterritorial application of other individual rights outlined in the Constitution. Like the Due Process Clause, most are phrased in general terms, without any territorial limitations, or constraints based on the citizenship of the individuals targeted.

If the Due Process Clause applies to U.S. actions abroad, why not the First Amendment and other parts of the Bill of Rights? If Congress’s power to punish crimes on “the high seas” is constrained by individual rights, why not its power over immigration, its power to regulate international commerce, and so on?

The fact that pirates were violators of international, as well as American, law makes it all the more striking that they were nevertheless covered by the Due Process Clause. If even pirates were not beyond the reach of constitutional rights, it seems hard to argue that potential immigrants or foreign-based violators of purely American legislation should be.

Unlike the power to punish crimes on the high seas, federal power over immigration is not specifically enumerated in the Constitution. Such Founders as Thomas Jefferson and James Madison forcefully denied that Congress and the president had any general power to restrict peaceful migration, a view that ultimately prevailed in the struggle over the Alien and Sedition Acts of 1798. Chapman, in fact, briefly argues that the Due Process Clause restricts congressional power over immigration, preventing the federal government from stripping statutory immigration rights without due process.

If so, perhaps other constitutional rights restrict immigration policy, as well. If Congress cannot bar foreigners in ways that violate the Due Process Clause, perhaps it also cannot bar them on the basis of criteria that undermine First Amendment rights, such as freedom of speech, assembly, and religion.

Many object to such reasoning on the ground that the immigrants have no constitutional right to enter the United States in the first place. But, of course, suspected pirates had no constitutional right to engage in piracy, suspected smugglers had no right to smuggle, and so on. Still, they could not be targeted in ways that violated the Due Process Clause.

As I have pointed out elsewhere, there is no constitutional right to receive Social Security benefits. Yet it would surely be unconstitutional for the federal government to restrict them to people who practice a particular religion or refrain from criticizing the government. Similarly, it may be that potential immigrants cannot be barred for reasons that trench on other constitutional rights.

Chapman’s argument does not definitively resolve the issue of which constitutional rights apply extraterritorially. Perhaps some rights simply have a different status from the Due Process Clause. A few are explicitly limited to citizens, such as the Privileges and Immunities Clause of Article IV.

But Chapman’s analysis does undercut oft-made claims that the original meaning of the Constitution implicitly embodies a general principle under which constitutional rights only constrain government actions on American soil or only those that target American citizens. At least with respect to the Due Process Clause, that simply is not true.

As Chapman recognizes, originalism is far from the only available constitutional theory. Restrictions on extraterritorial application of the Due Process Clause can still be defended on “living constitution” grounds. Later in the nineteenth century, he notes, American courts and government officials began to do just that: “Americans, faced with the challenges and prospects of a far-flung and culturally pluralistic empire, to some extent embraced the imperial logic of the British constitution that they had once repudiated.”

Due Process Clause protections were often repudiated or watered down in cases dealing with immigrants, foreigners, Native Americans, and others not seen as fully American. Instead of defending these principles on the basis of text and history, judges and others appealed to the supposedly “inherent” powers of sovereign governments—the same theory ultimately used to justify “plenary” federal power over immigration. Such theories have major flaws from the standpoint of text and original meaning. But they can be defended on various other grounds.

Chapman’s compelling article does not definitively resolve the debate over extraterritorial application of constitutional rights generally, or even the Due Process Clause specifically. But it is a major step forward in the literature. Few if any issues in constitutional law are more timely and relevant.

  1. The Supreme Court remanded the case without reaching the issue of extraterritorial application of the Fourth Amendment. []
Cite as: Ilya Somin, Does the Constitution Require Due Process Abroad?, JOTWELL (July 12, 2017) (reviewing Nathan S. Chapman, Due Process Abroad, U. of Ga. Legal Stud. Research Paper No. 2017-07 (2017), available at SSRN), https://conlaw.jotwell.com/does-the-constitution-require-due-process-abroad/.

The Libertarian First Amendment, the Shifting Apostrophe, and the One-Way Ratchet

In Expanding the Periphery and Threatening the Core, Morgan Weiland tells a story of how the First Amendment has slipped its moorings: how the Supreme Court, through its holdings in commercial speech and corporate campaign finance regulation cases, has decoupled the individual’s right to expression from the reasons for protecting that right; and how the libertarian turn in First Amendment theory, which devalues any interference with the flow of any information for any reason, has fused together protections for corporate and individual speech in a way that abandons First Amendment first principles. Weiland’s article also details the costs of First Amendment agnosticism—in a world where any regulation of speech affronts the informational rights of every listener, the State is powerless to distinguish between kinds of speakers or the quality of speech.

Weiland’s claim that First Amendment theory, properly oriented, should place primacy on listeners’ rights over the rights of speakers goes back to Justice White’s seminal line in 1967’s Red Lion that “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount,” as well as to Jerome Barron’s work around the same time, which called for government interventions in the speech market because of its First Amendment-derived obligation to promote the public’s “adequate opportunity for discussion” of issues of public concern.1  Drawing upon the argument that expressive rights are functionally collective in nature, Weiland’s article makes an important contribution to First Amendment literature by detailing how far the modern Court has strayed from this baseline.

Though her article spends lots of time living in the lofty heights of free speech theory, Weiland cleverly boils down the change motivating First Amendment principle to a shift in the possessive. As noted above, in its Red Lion-era jurisprudence, the Court’s concern was with “listeners’ rights”—“listeners” being a stand-in for the public-at-large, with its concomitant interest in information as an instrument used for collectively constructed governance and society. Starting with its commercial speech cases in the 1970s, however, the Supreme Court’s discussions of the First Amendment’s theoretical underpinnings moved the apostrophe one letter to the left. Where before “listeners’ rights” in the speech context were previously conceived as an instrument for listeners to achieve collective self-determination, under the new libertarian tradition the “listener” is now a purely individualized conception where the right deserving of protection shields anything an individual listener might want to know from government interference. It’s thus the listener’s right to information, rather than listeners’ rights in the same, which drive First Amendment rules of decision.

Read this way, Weiland’s is a compelling story of how the smallest possible change in punctuation can sometimes flip meaning in the opposite direction. When reading the article, I was reminded of a similar story I once read about a misplaced comma in a King James Version of the Bible’s Luke 23:32. The passage, which details Jesus’ imminent crucifixion alongside two criminals, originally read “And there were also two other malefactors, led with him to be put to death,” instead of the intended “And there were also two other, malefactors, led with him to be put to death.” The mistake in the first version, by implying that Jesus had done evil (“malefactors” probably beginning as the Greek kaourgous, meaning “wrongdoer,” then as the Latin malefacere, meaning “to do evil,”), rendered the passage sacrilegious.

I have almost certainly just described a mistake. But the move from “listeners” to “listener’s” that Weiland describes was unmistakably intentional. The Court’s shift to individualize the listener whose rights merit constitutional protection permitted it to protect corporate speech rights in ways that its prior precedents did not permit. Advertising was now on equal footing with political speech.

After describing the shift, Weiland describes its effects. Weiland claims that the Court’s use of listener-based justifications for its decisions in the commercial speech and corporate campaign finance areas—in the case of the former, the Virginia State Board case’s conclusion that restrictions on pharmaceutical advertising infringed on individuals’ interest in receiving price information about drugs; and in the case of the latter, Citizens United’s claim that limiting corporations’ political expenditures deprived voters of relevant information about candidateseroded the Court’s ability to distinguish between kinds of speakers, or to decide whether the First Amendment permitted positive government interventions in the speech market of the type found permissible in Red Lion.

If the First Amendment is agnostic as to kinds of speakers, the status of listeners, and types of speech, then any regulation of speech is of dubious constitutionality. Accordingly, the shift that Weiland describes was to assume without deciding (or really without the benefit of any reasoning) that providing more price information to an individual consumer, or ensuring that a corporation could spend its money to promote or denigrate the candidate of its choice, was no different for First Amendment purposes than ensuring the public’s access to information on and discussion of candidates or their policy proposals. It does the First Amendment no good, Weiland claims, to claim that the Speech Clause protects the rights of listeners without discussing who those listeners are or why the Clause entitles them to information in the first place.

In short, as Weiland convincingly argues, the Court’s claim that protecting any speech rights, whether corporate or individual, ineluctably leads to freer flows of information permits it to elide the balancing question that should be at the core of the First Amendment: whether asserting some speech rights in a particular context might in fact lead to interference with other information flows—which could lead in the end to greater harms to listeners’ interests in self-autonomy and self-governance. If less regulation of speech always and necessarily leads to more information, then cost-benefit analysis with respect to the speech-related effects of any given regulation is off the table. In other words, your $1,000,000 campaign expenditure cannot drown out the $100 that represents all I can afford to spend, because $1,000,100 (your speech plus mine) is greater than $100 (mine alone). Other scholars have made similar arguments, but Weiland’s analysis details better than most how the First Amendment got to this point.

Though I enjoyed every bit of this Article, I did have a very minor quibble with respect to the paper’s claims of novelty. Those of us who play the game know that novelty claims are the most tried-and-true strategy for getting our papers to the top of the law review editors’ stacks, and thus it’s no fault of Weiland’s for making them. Even so, it is a little too pat for Weiland to claim that her project “uncovers a new theoretical tradition.” (P. 1394.) As Weiland notes, claims of the Roberts Court’s First Amendment neo-Lochnerism is a cottage industry in Speech Clause scholarship; these papers are pointing out not just a doctrinal inconsistency, in the sense of the kinds of speech and speakers that the First Amendment should protect, but also a theoretical inconsistency, in the sense that the reasons that doctrine pushes decisions in those directions are at odds with the rationales for the First Amendment in the first place. The listener’s-rights-vs.-speaker’s-rights debate is the stuff of dozens of net neutrality FCC comments and amicus briefs, which Weiland, as an active advocate in that space, well knows. When Weiland argues that the free flow of information is a means and not an end, she has an unlikely ally: Chief Justice Rehnquist, who made the same argument, as well as the neo-Lochnerism charge, in commercial speech cases several decades ago. But this is more of a critique of the larger law review industrial complex and not of Weiland’s paper, which, to reiterate, makes an important contribution, and does so exceptionally well.

“More speech is better speech” is not just an adage anymore. It is the Supreme Court’s governing principle with respect to the theory underlying the First Amendment. Morgan Weiland’s article shows that this governing principle sometimes fails to take into account that “more speech” can come at major expense to the interests that underlay the First Amendment’s protections.

  1. Jerome A. Barron, Access to the Press—A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967). []
Cite as: Enrique Armijo, The Libertarian First Amendment, the Shifting Apostrophe, and the One-Way Ratchet, JOTWELL (June 22, 2017) (reviewing Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389 (2017)), https://conlaw.jotwell.com/the-libertarian-first-amendment-the-shifting-apostrophe-and-the-one-way-ratchet/.

What Will the Federal Government’s Resistance to President Trump Look Like?

How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.”

One might apply some of the same questions to this very jot. The general custom at Jotwell is to talk about recent “things” we “like lots,” and usually only about one article one at a time. The rule extends to articles published in the past two years, but most jots focus on recent or forthcoming articles. Given my own perverse tendencies, many of my past jots have more or less followed Jotwell’s “rules,” while pushing their limits. (And they have talked about doing so, which may violate another Jotwell “rule,” one that applies to legal scholarship more generally: talk about the article or topic itself, not the process or motives behind it. A law review article that began “This Article is intended to advance the current causes of the Democratic Party,” or “This Article is meant to demonstrate my worthiness for promotion” would be refreshingly candid, and might suggest some interesting things about legal scholarship, but this sort of thing is just not done. An article that got even more “meta” about the nature or role of the article, in order to poke at legal scholarship more generally, would be just as suspect, and the letters complaining about it would invariably begin, “Dear Prof. Schlag.”) Here I talk about three “articles” falling within the time limit. But two are scholarly blog posts, and the third involves a bank-shot, because behind it lies that 2015 article by Bulman-Pozen and Pozen, now verging on being too “old”for Jotwell. And all three articles raise the question whether this jot belongs in the constitutional law section or under legal theory or administrative law.

I have done all this on the grounds that extraordinary times call for extraordinary measures. Is this jot a form of uncivil obedience, of civil disobedience, or of rebellion? Is it justified in the circumstances? Even if these are extraordinary times, are extraordinary measures called for here, in the context of a system and website that operates as usual?

Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)

Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies.

Begin with Uncivil Obedience. Many acts of resistance to the Trump presidency have involved civil disobedience, although sometimes without the transparency and willingness to accept legal consequences that is often thought of as a hallmark of civil disobedience. For Bulman-Pozen and Pozen, “In important respects, uncivil obedience is the mirror image of civil disobedience . . . Instead of explicit law-breaking, it involves subversive law-following” (emphasis added), or “subversive legalism.” It can be a useful form of protest and resistance. It certainly demands recognition. But it demands not only applause, but also thoughtful, critical examination: “The basic dilemma that uncivil obedience poses for public law values . . . is no less substantial than the dilemma posed by civil disobedience. At the same time, uncivil obedience plays a distinct role within the operations of government that demands critical engagement on its own terms.”

The article provides several categories of uncivil obedience, some of which are particularly relevant for present purposes. One is “working to rule” by employees. Instead of striking, they engage in “hyperbolic compliance with authoritative demands,” doing “exactly what they are told to do,” in a “rigid” manner that slows the usual pace of operations and makes normal functioning and the achievement of the employer’s purposes less likely. Among the employees who may work to rule or observe compliant but “slow-walking” tactics are civil servants. Another example also involves government: minority obstructionism within the Senate, in which rigid insistence on, and use of, every available legal tactic—quorum calls, filibusters, requiring that lengthy bills be read aloud from beginning to end, and so on—“def[ies] longstanding conventions” while “emphasiz[ing] the formal legality of the[ ] obstructionism.” A third is federalism, “the most fecund source of legislative uncivil obedience” in the United States. In addition to simple resistance to federal law, states may “adopt measures that trumpet their technical consistency with federal law while at a deeper level subverting it.” Finally, and perhaps less relevant for our purposes, there is “full enforcement,” the strict enforcement of laws that are generally enforced reasonably (or unreasonably and selectively), as a way of “upending rather than perfecting the existing sociolegal order.” Enforcing every petty traffic offense, against rich and poor alike, might serve to raise questions about the customary unequal application of those laws, or create powerful new constituencies of opponents so as to undermine them altogether. The authors quote President Grant: “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”

Remember that the definition of uncivil obedience includes several factors that help it correspond to civil disobedience. In particular, uncivil obedience is said to require that the action “communicate[ ] criticism of a law or policy,” that it have “the significant [reformist] purpose of changing or disrupting that law or policy,” and that it do so “in a manner that calls attention to its own formal legality,” suggesting some degree of openness. Some acts of uncivil obedience, such as an organized and announced “work to rule” program, may meet those criteria. Others may not. When a Senate minority—Republican for some of the last administration, Democratic currently—uses all its tools to stymie the majority and prevent the administration from turning its policies into enacted law, it is often vocal about it, but is it reformist or protest-oriented? Certainly it is not reformist as to those rules itself: whether it thinks (or thought, until recently) the filibuster is unjust or not, it is happy to use it. It is not using “procedural privileges in novel ways to challenge those privileges themselves.” And is a covert “work to rule” practice really a communicative act of uncivil obedience?

Bulman-Pozen and Pozen call such examples “indirect uncivil obedience,” and make clear that the line between direct and indirect is “blurry.” To me, such an extension of the basic idea tends to demonstrate the dangers of over-extending the labeling and description of a phenomenon. There is no doubt that Uncivil Obedience performs a useful function, one that is increasingly popular, even trendy, in the legal literature: that of identifying and taxonomizing a common but frequently under-remarked social, legal, and/or political phenomenon with important implications for law. But identifiers and taxonomizers of such phenomena should be wary of bringing too much under their umbrella. It can be useful to identify an important phenomenon, but counter-productive to insist too much on its universality or breadth of application, especially by introducing “variants” that raise questions about whether they fit within the definition—or raise questions about the definition itself, and perhaps, by extension, the whole phenomenon.

Thus, in his article Civil Dissent by Obedience and Disobedience, Daniel Correa critiques several aspects of Bulman-Pozen and Pozen’s project, and ultimately asks whether the whole concept should be “considered a non-starter for any serious normative assessment.” He does so in part by focusing on custom. Working to rule achieves its power because it ignores the basic function of the workplace: to work, to actually function properly. Driving no faster than the speed limit, although the custom is to drive at or somewhat above the speed limit, similarly makes reasonable coordination and use of the roads difficult or impossible, at least as long as the custom of driving slightly over the speed limit is widespread, coordinated, and generally respected by law enforcement. Doing so is only “provocative” if there is “some competing norm vying for obedience.” To Correa, this means that it is ultimately really disobedience—to the norm on the ground, if not the law on the books—that is doing the work here. He concludes that “the label ‘uncivil obedience’ should be discarded and the phenomenon the label purports to describe investigated as a form of civil disobedience.” (A similar point is made in a thoughtful response to Bulman-Pozen and Pozen by Daniel Markovits. Despite praising the article, he argues that “the practices that BP&P identify as uncivil obedience on closer inspection overwhelmingly remain perfectly civil after all, at least insofar as they really do involve law-following. These practices become uncivil only when and because they turn out, on closer inspection, to involve disobedience.” The phenomenon, on this view, is less clear and apparent than the authors suggest, although the article is still useful insofar as it “reveals a deep structural instability in the normative order at which the protest takes aim.”)

Correa argues also that the uncivil obedience label is particularly “troublesome” when its authors try to “squeeze” it “into lawmaking practices.” Doing so distracts from “what really appears to be at issue: best lawmaking practices in a democratic society and political accountability.” Some members of a Senate minority engaging in legal obstruction may have uncivil obedience in mind, or say they do. But some of those are merely engaged in “political posturing,” and the rest are just doing party and institutional politics. Attaching a fancy global label to this conduct “creates a real risk [of] sleight of hand political maneuvering.”

One of the great virtues of Uncivil Obedience and its responses is that they came before the rise of Trump and the change in political regimes. They thus identified a potentially useful phenomenon before the felt necessities of the time[s]” could affect and perhaps distort their analysis. But this work has taken on a new level of importance in the current moment. That is certainly true for those who deplore Trump and are determined to resist him, but it is also true for those who are at least ambivalent about him, not to mention the few who simply want to identify and analyze the current moment as scholars or observers.

Before the election, while many focused worriedly on what Trump might do to the civil service, some writers, such as Eric Posner (and, less impressively, myself), began asking how civil servants might respond to a Trump administration that would be, in an important sense, their own administration. It hardly took a crystal ball to ask this question, but it was asked surprisingly rarely—maybe because many in the professional-managerial class still thought his election impossible, or perhaps because they were driven by strong emotion rather than analytical calm.

Whether the executive bureaucracy, inside and outside of cabinet departments and other agencies, comprises a “fourth branch” of government or not, it clearly has many tools at its disposal to respond to and resist the head of the executive branch within which it sits. Since the election, both before and after the transfer of power itself, we have in fact seen variety of forms of resistance on the part of the civil service. President Truman famously observed of incoming President Eisenhower, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.” And in a recent piece on the civil service, Professor Daniel Hemel quotes, via Chief Justice Roberts, President Kennedy saying to a constituent, “I agree with you, but I don’t know if the government will.” We are now witnessing that phenomenon on steroids. The executive branch and the substantial civil service attached to it is definitely not The Apprentice. It barely resembles even the standard organizational chart one might remember from a class on separation of powers.

Jennifer Nou, a regulatory expert at the University of Chicago, has been remarking perceptively on this possibility both before and after the inauguration, in a pair (I hope they will become a series) of posts at the blog of the Yale Journal of Regluation. Even before the inauguration, Nou offered “a catalogue of tactics that civil servants have historically used to defy their superiors, both covertly and overtly.” They include slowdowns, using the agency process to build records that “will make it more difficult for the administrator to reverse [a] decision in good-faith,” cooperation with Inspectors General, lawsuits, resignations, and leaks. To this we might add, perhaps as a species of uncivil obedience, former Acting Attorney General Sally Yates’s refusal to enforce the initial administration executive order on travel, on the grounds that the refusal was “informed by my best view of what the law is after consideration of all the facts.” (Given that she served at the pleasure of the president, we might also think of this as a form of implicit noisy withdrawal.) Post-inauguration, Nou argues that the level of bureaucratic resistance to the Trump administration seems “unprecedented” in its “open defiance” of the President. She notes that this defiance invites “the inevitable crackdown from above,” and catalogues some forms the crackdown might take, such as reductions in force, prosecutions of leakers, and simply cutting the bureaucracy out of the consultation and decision-making loop.

But much of this can be difficult to accomplish, or have negative consequences for the administration itself. Tenure protections for civil servants constitute one of the most obvious barriers to executive-branch crackdowns. But other methods will create more interesting separation-of-powers dynamics and consequences. The clumsiness of the initial executive order on travel resulted in large measure from the loop-cutting method adopted by the West Wing. That in turn gave courts ample ammunition to be highly skeptical of the order, both because of its poor drafting and because it made it more difficult for the administration to point to the kinds of information-building and consultative methods that might justify judicial deference to the executive branch. By ensuring that no one in the bureaucratic ranks could hamstring the executive order, the White House in the end gave the judicial branch a leg up in doing just that. In short, “civil servants have a lot of artillery with which to lead yet another round of counter-attacks.”

Nou’s commentaries raise at least two important questions. First, how much of the civil service resistance to Trump can be characterized as “uncivil obedience,” of the kind described by Bulman-Pozen and Pozen, and how much of it is closer to civil disobedience or outright rebellion? Some of this conduct may be usefully illuminated by Bulman-Posen and Pozen’s taxonomy. We can expect civil servants in this administration to insist rigidly on formal procedures that limit executive branch energy and action, to obey every jot and tittle of the “law” and rely on every protection and limit afforded them, to clock out at 5 when they might have burned the midnight oil in the service of a president or agenda they favored. We might see them interpreting and enforcing new rules advanced in a top-down form from the White House so rigidly as to heighten their absurdity and injustice and expand the range of affected constituencies who might complain. While we certainly will see open defiance of the administration by Democratic-governed states, not least for reasons of electoral politics, we might also see them using existing federal law to convert “cooperative federalism” into a means of resistance.

But some of these forms of resistance raise the questions of uncivil obedience presented by Correa (and Markovits). If the civil service tirelessly exploits the gap between formal rules and the actual norms that normally drive agency employee action—including the basic principle that the civil service is a part of the executive branch and exists to effectuate its policies—then much of its work will be driven by disobedience, not obedience. Other forms of resistance—leaking, in particular, but also the purported creation of “shadow” agency Twitter sites and other anonymous means of ignoring the org chart and communicating directly to the public—have nothing to do with “strict conformity with . . . positive law,” and are best characterized either as civil disobedience or, more accurately, resistance and rebellion, since they do not involve the transparency or willingness to accept the consequences of one’s disobedience that typify classical civil disobedience.

And some conduct may look like uncivil obedience at first, but is likely better seen as covert resistance and rebellion. The political journalist T.A. Frank, for instance, observes that efforts in the waning days of the Obama administration to collect and preserve intelligence concerning potential Russian hacking around the presidential election included, as The New York Times puts it, “keep[ing] the reports at a relatively low classification level to ensure as wide a readership as possible across the government.” This action is defended by the paper’s anonymous sources as an attempt to make sure the evidence was not buried or destroyed. But, as Frank quite rightly notes, it also inevitably “ensures the leaks keep coming and that the list of suspects remains infinite.” (The Times, which relies heavily these days on anonymous sources, failed to mention this obvious possibility. Perhaps the sources insisted on this as a condition of the leaks. At the least, the omission points to the dangers of self-serving accounts by leakers.) It is hard to describe this conduct as either uncivil obedience or civil disobedience.

The second question is what risks as well as rewards are involved in these varied forms of intra-branch resistance. Many have and will continue to applaud the bureaucracy’s resistance to its own administration. It will blunt the edge of the administration’s work and energy and in some cases may defeat its plans outright. As the example of the executive order on travel suggests, in other cases the resistance will hand ammunition to other branches of government, such as the judiciary. That will either allow judicial overrule of administrative actions, or require the administration to soften its policies, go through proper processes, and bring the bureaucracy back into the loop if it wants to succeed at all. In short, it will force the partial domestication of the administration.

But Nou writes that “[t]here are thorny legal and moral questions” involved in these forms of resistance. The potential costs of resistance, including dismissal, prosecution, and retaliatory reduction of the administrative state, “may help ensure that what resistance remains is more often evidence of a canary in a coal mine than a bureaucracy run amok.” But the more stringent, successful, and covert the resistance is and remains, the greater the risk that “ultimately the loser here is the administrative state itself,” and that “the institution of the presidency” will be “weakened in the long term.” If a casualty of the resistance to Trump—however justified or necessary that resistance may be—is “the civil service’s professional ethos and respect for democratically-elected superiors,” then the consequences are likely to last well beyond this administration.

The benefits of governmental resistance to the government—to this government, anyway—might be well worth the costs. And it is possible that the most dangerous tools will be put back on the shelf once Trump’s tenure in office is over, or once (or, rather, if) he is tamed, more or less. (That depends in part, however, on whether the “resistance’s” goal is to domesticate Trump’s presidency—or to end it. What the resistance’s goal is and whether there is any consensus on it is an open question; and the judiciary’s willingness to reject deference and restrain the president even after he had issued an executive order that purported to follow more of the usual organizational norms suggests that for at least some individuals, mere domestication is not the real goal.) Nou’s examples are historical as well as speculative, after all, and Bulman-Pozen and Pozen likewise drew on existing practice in describing “uncivil obedience.” Despite these historical examples of resistance, the Republic still stands. It is thus possible that these examples, and current civil service resistance practices, either are not cause for undue alarm or are necessary in the circumstances. On a somewhat different note, neither positive nor negative as such, perhaps they are an extreme example of “nothing new to see here”—of a civil service that has long been as much its own creature as a creature of the executive branch, and that reveals the complexities of intra-branch rather than inter-branch aspects of the constitutional separation of powers.

Whatever the case, these resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies. Whatever havoc it may wreak with Jotwell’s usual customs, we should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.

Cite as: Paul Horwitz, What Will the Federal Government’s Resistance to President Trump Look Like?, JOTWELL (April 10, 2017) (reviewing Daniel Correa, Civil Dissent by Obedience and Disobedience: Exploiting the Gap Between Official Rules and Societal Norms and Expectations, 8 Wash. U. Jurisprudence Rev. 219 (2016) (responding to Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 Colum. L. Rev. 809 (2015)), Jennifer Nou, Bureaucratic Resistance From Below, Yale Journal of Regulation Notice & Comment (Nov. 16, 2016), and Jennifer Nou, Taming the Shallow State, Yale Journal of Regulation Notice & Comment (Feb. 28, 2017)), https://conlaw.jotwell.com/?p=942.

A Compassion for the Law

Susan Bandes, Compassion and the Rule of Law, 13 Intl. J. Law in Context (forthcoming 2017), available at SSRN.

U.S. Supreme Court Justice Sonia Sotomayor faced a roadblock to confirmation because she had once said in a speech, “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” The statement was read by supporters in concert with President Obama’s well-known view that empathy is an important requirement for judges. Her opponents put a different spin on the statement, arguing that this kind of view meant she would be biased in interpreting the law.

Professor Susan Bandes’s fascinating article, Compassion and the Rule of Law, deals well with a closely related topic. Her examples are drawn mostly from constitutional law, but the analysis has broader implications. (Bandes has authored prominent books and articles on the role of passion and emotions in the law.)

Bandes’s initial premise is that the “rule of law” should prevent arbitrary decision-making based on unpredictable emotions. Compassion is problematic—if it incorrectly distorts substantive legal rulings. But she says it can also serve a different purpose. Compassion’s “most important contribution, is as a way of understanding what is at stake for others. Or to put it another way, seeing the rights of others from the inside; as they experience them.” (P. 3.)

She acknowledges that empathy is a similar concept, that scholars disagree on the meaning of these concepts, and that these meanings have evolved over time. Nonetheless, she argues that the core of empathy is just placing oneself in another’s situation. Empathy has a large cognitive component. By contrast, “Compassion is ‘the feeling that arises in witnessing another’s suffering and that motivates a subsequent desire to help.” (P. 5.) Bandes elaborates that compassion entails the “call to action that is not an inherent component to empathy.” (P. 5.) Perhaps that is why we say that a person “shows” compassion but “is” empathetic. Bandes further references Martha Nussbaum’s reliance on Aristotle for the proposition that a judge’s compassion should be based to some extent on the view that the “litigant is not at fault.” (P. 5.)

She then discusses several constitutional decisions where compassion was relevant. Her analysis of DeShaney v. Winnebago County Department of Social Services is especially prominent. She also discusses Brown v. Board of Education and Safford Unified School District v. Redding. In Safford, a Fourth Amendment decision, she shows that Justice Ruth Bader Ginsburg helped her colleagues on the Court see how humiliating it would feel for a teenage girl to be strip searched. She also discusses compassion in the context of draconian federal sentencing rules, as well as the pardon power.

In DeShaney, the Court ruled formalistically that Wisconsin Social Services could not be liable for a father beating his young son, Joshua, into a coma as it was the father’s fault. Though the agency had intervened previously, and even briefly removed Joshua, the Court said the agency had no constitutional duty to protect, even if this exists in some foreign countries. She then argued that though Justice Blackmun’s famous reference in his dissent to “Poor Joshua!” is emotional and compassionate, Justice Brennan’s dissent is actually more powerful. The Brennan dissent more clearly shows how the Department’s prior involvement with the father and son placed a traditional legal duty on the agency not to be grossly negligent or reckless. Blackmun’s compassion alone, she argues, cannot be central to who should win, because it is not a sufficient, or sufficiently powerful, legal reason. And Bandes points out that the facts of the DeShaney case did not pull on the heartstrings of the dissenting justices alone. Chief Justice Rehnquist’s majority opinion showed a compassionate attitude in parts, even though the Court ruled against Joshua’s mother.

Bandes is particularly good in focusing on the nuances and difficulties that may not always be evident from a simplistic treatment of compassion, let alone its relationship to law. She points out that any reliance on compassion by a judge must look at both sides of the case. She also makes the important point that nobody can look into a judge’s heart, and that all judges have “blind spots and prejudices” that may not be apparent. (P. 19.) She adds that compassion can actually be based on inaccurate understandings (P. 19), though the same can be said for the rule of law (which itself has multiple possible meanings). She argues that Gonzales v. Carhart is a case where Justice Kennedy mistakenly assumed he was being compassionate or empathetic in asserting, without solid evidence, that women may frequently later regret abortions. She calls for judicial humility, openness, caution, and an awareness of what litigants need. (P. 21.)

She concludes by giving a fascinating example of Judge Kozinski from the U.S. Court of Appeals for the Ninth Circuit. Kozinski was examining a case that unexpectedly hit him like a brick when he realized the criminal defendant had made a poor life decision, but that he too had made a huge mistake just one week earlier putting his toddler at risk. Bandes says what makes this powerful is Judge Kozinski’s self-awareness.

This is an insightful article and a continuation of Professor Bandes’ excellent exploration of the aspects of legal decision-making that don’t fit into the easy categories of reason or logic. It leaves some open questions, but that adds to its impact.

At a recent federal sentencing forum at Drake Law School, one of the federal judges announced that he used the “least restrictive alternative” when imposing a sentence. This is very different from those judge who talk tough about law and order. I took his point to mean that judges should try to put themselves into the situation of the accused or guilty person, as well as others such as their family, rather than treat the matter with blunt indifference to the humanity involved. In my view, Bandes has made a persuasive case that a legal system made up of judges with compassion would certainly be good for society and for the rule of law. As Martha Nussbaum has said, compassion is “crucial for motivating and sustaining altruistic action and egalitarian institutions…” in a way that no other emotion can really match.

Cite as: Mark Kende, A Compassion for the Law, JOTWELL (February 24, 2017) (reviewing Susan Bandes, Compassion and the Rule of Law, 13 Intl. J. Law in Context (forthcoming 2017), available at SSRN), https://conlaw.jotwell.com/a-compassion-for-the-law/.

Getting to Grips with Discrimination

Deborah Hellman, Two Concepts of Discrimination, 102 Virginia L. Rev. 895 (2016), available at SSRN.

Since the mid-1970s, the Supreme Court has insisted with increasing fervor upon an anticlassification norm as the central principle of Equal Protection law. In the past decade, alternative legal solutions to inequality have emerged as competitors with the anticlassification norm. In 2009, the late Justice Scalia observed, in his concurrence in Ricci v. DeStefano, that the disparate impact theory of liability available under Title VII of the 1964 Civil Rights Act required employers to categorize by race. Given the priority of colorblindness, Justice Scalia observed, it might therefore fall afoul of the Equal Protection Clause. Two basic instruments for racial equality—both a part of the federal statutory law of antidiscrimination for a half century—suddenly seemed in collision course. This conflict is at the heart of Deborah Hellman’s excellent new article.

The conflict between anticlassification and disparate impact has receded more recently. In a June 2015 decision interpreting the Fair Housing Act, Justice Kennedy brokered an uneasy truce. Yet the pressing and fundamental theoretical question raised by Justice Scalia’s Ricci concurrence has not dissipated: How is it that anticlassification and disparate impact can both purport to mitigate racial discrimination, and yet conflict? Is the disagreement a divergence of tactics—a question of whether one thinks one can get beyond race without accounting for race? Is it the result of a divide between ideal and nonideal theory? Or does it represent a more profound divide over the nature and substance of equality?

That the superficially simple idea of equality admits of multiple accounts is nothing terribly new. In 1981, Douglas Rae and his coauthors wrote in Equalities that “[w]e are always confronted with more than one practical meaning for equality and equality itself cannot provide a basis for choosing among them.” Rae’s solution was to articulate a “grammar of equality,” one that implicitly rejected Peter Westen’s influential claim in the Harvard Law Review year that equality was an “empty form” with “no substantive content of its own.”

Unfortunately, Rae’s sophisticated and comprehensive taxonomy has not caught on in the legal literature. It is cited a measly 89 times in the Westlaw Journals database. The result is that a great deal of legal analysis assumes that the idea of equality is self-evident, or capable of specification through some mechanical textual or historical inquiry—and thus courts incoherence or question-begging circularity.

Few legal scholars are as well positioned to step into the resulting breach as Deborah Hellman. Author of a deservedly well-regarded book on the nature of discrimination, Hellman is the unusual legal scholar who brings a philosopher’s conceptual rigor to a range of doctrinal problems. These run from whether the First Amendment should protect campaign spending to the constitutional definition of “corruption.” Her work is always careful, novel, and worth reading.

Hellman’s new article offers a new taxonomy of “discrimination” as a legal term of art pursuant to the Equal Protection Clause. Her classificatory ambition prescinds from the overt normative ambition of her earlier normative work on discrimination. The article, in other words, is not a defense of an extant theoretical position. Rather, it offers a cartography of the conceptual landscape of constitutional equality law more generally.

Its central premise is that Fourteenth Amendment equality jurisprudence has articulated two basic theories of discrimination. They do not track the standard distinction between discriminatory treatment and disparate impact. Rather, Hellman posits that judges and justices have relied upon either a comparative or a noncomparative (or independent) conception of discrimination. Not as comprehensive as Rae’s taxonomy, Hellman’s binary aims nonetheless to encompass the whole range of options observed in the Court’s constitutional equality case law.

The basic intuition that a normative standard can either be comparative or noncomparative is nicely conveyed by a (painfully) familiar example with which Hellman starts: grading. Marks for students in a class can either be assigned based on a preexisting curve, or professors can grade each student based on some ‘objective’ standard, regardless of how other students perform.

The comparative concept of equality sets the treatment one person has received against the treatment another person has received. A violation of equality does not require a difference in treatment. If a guilty and an innocent person are alike jailed, equality is not honored. Hence, the comparative concept of equality requires a further substantive judgment as to what it means to treat persons as equals. Hellman identifies a number of ways in which this substantive judgment might be cashed out: for example, treating some with animus, failing to represent some, or denigrating some but not others. Equal Protection doctrine’s tiers of scrutiny, on this view, operate as a heuristic to winnow out those instances in which the state has likely failed to treat people as equals.

At first blush, a noncomparative (or independent) concept of equality seems incoherent. If there’s no comparative element, how can we say a given treatment is unequal? In fact, the currently regnant anticlassification account of Equal Protection law demands no comparison. It simply asks if race has acted as a criterion in a decision applied to a person, regardless of whether someone else was handled without accounting for race. Lest this make it seem that the comparative/independent line tracks liberal/conservative battle lines, notice that the skepticism applied to stereotype-based rules in gender-oriented equal protection law is also a noncomparative rule. Noncomparative conceptions of equality can also be understood as discarding comparison in favor of close consideration of the substance of governmental decision-making for impermissible factors.

Although Hellman pursues a number of doctrinal payoffs from this conceptual mapping, her analysis of whether rules intended to reduce racial disparities (e.g., under Title VII) should be treated as invalid is the most interesting. She contends that the Ricci concurrence logic blends distinct elements of comparative and noncompartive approaches. From the latter, it takes a concern with intent; from the former, it takes a worry about racial classification. Hellman insists that this kind of blending of moral theories is incoherent.

One question that remains open at the end of her analysis is whether the opponents of disparate impact can redeem their critique. Might they contend, for example, along with Justice Thomas, that any use of race in government decision-making “demeans us all” regardless of the intention behind it? (To be sure, I should concede that Justice Thomas does not take his own logic to be categorical. In a dissenting opinion in Johnson v. California, he took the position that racial categories could be freely used in the carceral context. (It is somewhat ironic that it is precisely in this realm that the invidious deployment of race is arguably the most worrisome, and even the most frequent). Could a moral or legal case for race-blindness be made without respect to background motives and beliefs? And how would that case reckon with the manifest ways in which racial identity shapes the life course and economic opportunities of individual citizens and the citizenry as a whole, to say nothing of how it pinches and channels our national political discourse? And how might it be squared with the text, history, and precedent of the Fourteenth Amendment? The argument about colorblindness, I rather suspect, will not go away any time soon.

By zooming out and surveying the conceptual landscape of Equal Protection jurisprudence from a new vantage point, Hellman allows for the identification of new parallels between unfamiliar doctrines (colorblindness and the ban on sex stereotypes), and makes it possible to transcend and overcome the older, ideologically oriented, calcified positions that are so familiarly at war in Equal Protection doctrine. Her analysis will be of great interest to students of Equal Protection who are not still mired in their deep-dug trenches, fighting the forever war of racial reconstructions and their inevitable redemptions.

Cite as: Aziz Huq, Getting to Grips with Discrimination, JOTWELL (January 31, 2017) (reviewing Deborah Hellman, Two Concepts of Discrimination, 102 Virginia L. Rev. 895 (2016), available at SSRN), https://conlaw.jotwell.com/getting-to-grips-with-discrimination/.

Mapping the Fault Lines of Normative Constitutional Theory

Andrew Coan, The Foundations of Constitutional Theory, Arizona Legal Studies Discussion Paper No. 16-24 (2016), available at SSRN.

How should courts decide constitutional cases? The question has been a long-time favorite of judges and scholars, who have defined, developed, and defended a variety of approaches to the project of constitutional adjudication. Some such approaches privilege the “original public meaning” of the constitutional text; others emphasize judicial precedent; others require close attention to moral considerations; others focus on welfare maximization; others place weight on majoritarian preferences; others look to social movements; others privilege representation reinforcement; and countless others require a complex weighing of these and other factors against one another. When it comes to the application and development of constitutional law, different theorists think that different types of considerations should guide the decision-making inquiry to different degrees, and a great deal of constitutional scholarship centers on the question of how these various considerations should bring themselves to bear on the resolution of constitutional cases.

But the disagreements among constitutional theorists run deeper than the question of how to decide cases; scholars also disagree about how to evaluate the merits of a given decision-making approach. One cannot defend one’s preferred method of constitutional adjudication without identifying reasons why that method is preferable to others. And to identify these reasons, one must have an account of what a successful approach to constitutional adjudication achieves. Should we value methodologies that consistently produce substantively desirable judicial outcomes? Should we value methodologies that best reflect the Constitution’s status as written law ratified by “We the People”? Should we value methodologies that constrain the power of unelected judges? Should we value methodologies that adhere to conventional understandings of “what the law is”? And so on. Different approaches to constitutional decision-making will look more or less attractive depending on the criteria against which we evaluate them. And different people favor different approaches in part because they disagree as to what those criteria should be.

Andrew Coan’s illuminating new article is about this second set of questions—questions that go to what Coan calls the “normative foundations” of constitutional theory. These questions, as Coan readily concedes, are by no means unfamiliar to constitutional lawyers; scholars routinely identify criteria for evaluating a decision-making methodology and, in the course of doing so, have very often set out to defend the relevance of the criteria they use. But what Coan’s article aims to provide is a systematic examination of the competing sets of “first principles” from which different theories of constitutional decision-making begin. Coan’s goal, in other words, is to survey the existing landscape of normative constitutional theory with an eye toward describing and evaluating the various types of reasons and arguments that constitutional theorists regard as relevant to the choice among decision-making methodologies.

What Coan is pursuing is thus reminiscent of earlier efforts by Phillip Bobbit, Richard Fallon, and others to develop taxonomies of the different “modalities” of arguments that courts and litigants deploy in defending claims on behalf of particular constitutional results.1 Coan is attempting a similar taxonomizing effort, but he is doing so at a further level back: Specifically, he offers a descriptive framework for grouping together and distinguishing between the different sorts of arguments that theorists deploy in defending claims on behalf of their decision-making methods. That latter framework is interesting and useful in its own right, but it gains additional analytical purchase when viewed alongside various method-based taxonomies that predate Coan’s work. By juxtaposing both sets of categorization schemes against one another, we are better positioned to think carefully about the relationship between choices about normative foundations and choices about decision-making method—asking in particular what our methodological commitments imply about our foundational commitments, and vice versa.

So how does Coan categorize the foundations of constitutional theory? Though not purporting to offer an exhaustive list,2 Coan suggests that mainstream theories of constitutional decision-making typically rest on at least one of four such “normative claims.” These are:

  1. Metaphysical claims, which “contend that the correct approach to constitutional decision-making follows deductively from the nature or concept of law or interpretation or some other important feature of constitutional decision-making assumed to require no justification” (P. 6);
  1. Procedural claims, which “contend that the correct approach to constitutional decision-making follows from some idea of procedural fairness or legitimacy that requires particular constitutional decisions to be made by particular institutional actors” (P. 7);
  1. Substantive claims, which “contend that the correct approach to constitutional decision-making is determined by the moral desirability of the decisions it produces, however moral desirability is defined” (P. 8); and
  1. Positivist claims, which “contend that the correct approach to constitutional decision-making follows from the content of positive law, as defined by regularities of official behavior in a particular jurisdiction at a particular moment in time” (P. 9).

Not all of these claims need be mutually exclusive of one another; if one believes, for example, that present-day legal conventions generally produce desirable judicial outcomes, one could appeal to both substantive and positivist considerations in advocating for a particular decision-making approach. And the categories themselves can accommodate significant variation: Different types of “procedural claims,” for instance, might rely on different underlying concepts of procedural legitimacy, just as different types of “substantive claims” might gauge the moral desirability of outcomes in very different ways. Even so, and as Coan persuasively demonstrates, we can learn a lot about the present-day landscape of normative constitutional theory by thinking carefully about these four different types of normative claims and the different sorts of methodologies they might support.

To begin with, by distinguishing between different types of normative foundations, Coan’s taxonomy facilitates careful and systematic comparison of the foundations themselves. Much of Coan’s article is dedicated to this task. For each of the four foundations he identifies, Coan highlights (a) examples of theories that (either implicitly or explicitly) rest on that foundation; (b) features of the foundation that might make it an attractive starting point for a method of constitutional decision-making; and (c) features of that foundation that make it an unattractive starting point. Thus, for example, when it comes to “metaphysical claims,” Coan observes that several decision-making theories take as their starting point the proposition that judges must “interpret” rather than “modify” constitutional guarantees, the related proposition that the written Constitution represents binding law that judges must obey, or some other baseline proposition that the theory treats as fixed and non-contingent. And having identified a family of theories that share this trait, Coan can then proceed to ask what the proponent of any such theory gains and loses by relying on metaphysical claims. On the plus side, for instance, metaphysical claims might “promise clarity, certainty, and inevitability,” within a world beset by “uncertainty and ambiguity.” (P. 21.) Additionally, metaphysical claims might enable theorists to pitch their arguments in “decisive, knockdown terms,” lending them a “strategic advantage” over arguments whose “moral premises . . . are both contested and vague.” (P. 22.) And finally, metaphysical claims—to the extent they rest on “widely shared premises” about law—might facilitate a useful degree of “overlapping consensus” among persons who disagree about more fundamental matters of political morality. (P. 23.) On the minus side, metaphysical claims threaten to “mask the role of choice in constitutional decision-making,” treating as constant and inexorable a set of propositions that are in fact contested and contingent (P. 26.) Relatedly, metaphysical claims might end up carry an only limited persuasive appeal: by invoking capacious ideas such as “interpretation” or “binding law,” metaphysical claims may well rely on particular conceptions of those ideas that nonadherents simply reject. And metaphysical claims might even “have the potential to be self-defeating” (P. 27): To the extent that their premises deductively require an unpalatable, unpopular, or otherwise undesirable decision-making methodology, metaphysical claims might not so much provide a reason to adopt the methodology as they would provide a reason to “abandon [our] commitment” to the premises themselves. (P. 27.)

Coan continues this exercise in connection with the other three members of his typology—i.e., “procedural,” “substantive,” and “positivist” claims—and the end result of his efforts is a fresh and insightful overview of the foundations upon which many different theories of decision-making rest. No particular claim emerges as the obvious winner. Coan attributes strengths and weaknesses to all four of the four normative foundations, and he readily acknowledges room for reasonable disagreement on the question of which foundation(s) should prevail. His article is thus likely to prove a disappointment to anyone hoping for a knockdown, slam-dunk defense of his or her preferred framework for evaluating an approach to constitutional decision-making. But the aim of the article is not to resolve any longstanding disagreements within the world of normative constitutional theory. Rather, it is to facilitate our understanding of where those disagreements come from and of where they are most and least likely to generate fruitful discussion.

What Coan’s analysis suggests, in other words, is that the traditional, methodologically-focused labels that we affix to various theories of constitutional decision-making may end up masking deeper points of convergence and divergence among the theories themselves. It would be one thing if a particular normative foundation always supported a particular type of decision-making methodology. But the world is messier than that, as Coan’s taxonomy helps to reveal. Within the traditional category of “originalism,” for instance, there exist theories that derive from metaphysical claims, theories that derive from positivist claims, theories that derive from substantive claims, theories that derive from procedural claims, and theories that derive various combinations of the four. Within the traditional category of “common-law constitutionalism,” there exist theories that derive from substantive claims and theories that derive from positivist claims, and there might well be room to derive similar theories from metaphysical and/or procedural claims. And conversely, each of the four foundations is itself capable of supporting a variety of different methodological approaches. In short, there is no one-to-one relationship between what a constitutional theory prescribes and where its normative foundations rest. And thus, to the extent that we emphasize similarities and differences at the level of methodological prescription, we end up obscuring similarities and differences at the level of normative justification.

With Coan’s taxonomy added to the mix, we can thus more easily identify what Coan calls “hidden agreements” and “hidden disagreements” between adherents to nominally different theoretical camps. When, for instance, “a positivist originalist clashes with a positivist common-law constitutionalist” (P. 10), their shared commitment to positivism may well matter more than the differing inferences they draw from their positivist premises. Where, by contrast, a “metaphysical originalist clashes with a positivist common-law constitutionalist or a substantive pragmatist, their disagreement is not merely about how judges should make constitutional decisions,” but also—and more fundamentally—“about what types of reasons count in answering the question.” (P. 10.) Indeed, it may even be the case that fellow travelers at the foundational level have more to gain from talking to one another than do fellow travelers at the methodological level: The disagreements between, say, a “consequentialist originalist” and a “metaphysical originalist” may turn out to be far more intractable than the disagreements between a consequentalist originalist and a substantive pragmatist. (The former pair cannot even agree on what the overarching object of constitutional adjudication should be; the latter pair might merely disagree as to how best to achieve the shared goal of generating consistently good judicial outcomes.) In short, by attending to the normative foundations of different constitutional theories, Coan’s taxonomy helps us to identify “points of overlap that create the opportunity for a new and more productive collaboration—among theorists who have generally considered themselves completely at loggerheads.” (P. 11.)

Like any good article, Coan’s work raises many new questions. I found myself wondering, for instance, about the possibility of embedding one type of normative claim within another: One could imagine, for instance, a theorist who adopts a metaphysical postulate for consequentalist reasons (e.g., “Judges must interpret rather than modify the Constitution because any other approach would lead to chaos and disorder.”), or a theorist who adopts proceduralist postulates for metaphysical reasons (e.g., “The written Constitution, whose status as binding law I take as a given, indicates that federal judges should generally defer to the constitutional choices of other governmental institutions”), and I am curious as to how, if at all, these sorts of hybridized theories would fit into the framework that Coan has developed. I also found myself wondering—at the risk of wading too deeply into the waters of jurisprudence and political philosophy—whether one might replicate Coan’s exercise at yet another level back. Having identified different normative foundations of constitutional theory, does it make sense to scrutinize the foundations of those foundations—i.e., the different types of reasons that scholars might deem relevant to the choice among metaphysical, proceduralist, substantive, and positivist claims?

There is, finally, the question of whether one’s metaphysical, substantive, procedural, and/or positivist commitments must always function as “foundations” at the bottom of the analytical tree. It may well be, as Coan suggests, that the best overall approach to deciding constitutional cases is one that (a) begins with an understanding of the big-picture goals of constitutional adjudication, (b) selects the decision-making method that best accords with this understanding, and (c) applies that method to reach case-specific results. But perhaps the process might sometimes operate in a manner that is more “back-and-forth” than unidirectional. I am reminded here of Michael Dorf’s suggestion that “[o]ne does not choose a constitutional theory like a suit off the rack” but that one instead “tailors constitutional theory to one’s own views” about concrete constitutional issues, “including views as they are modified by the initial selection of the theory.3 As a descriptive matter, I would not be surprised if most judges and scholars arrived at their preferred methods of decision-making in just this way, and as a normative matter, I can see why the approach might sometimes prove more attractive than the purely “bottom up” method that Coan’s framework implies. None of which affects the overall utility of the framework itself—Coan’s categories remain clarifying even if their constituent arguments do not always operate at a purely “foundational” level. But the framework does at least raise the important question of whether—and, if so, when—our big-picture objectives, methodological preferences, and assessments of individual outcomes might sometimes relate to one another in a fashion that is more iterative than deductive.

These are just a few of the questions and ideas that Coan’s article helped to generate within my own mind, I suspect that it will be similarly thought-provoking to others who take the time to read it in full.

  1. See, e.g., Phillip Bobbitt, Constitutional Fate: Theory of the Constitution 3-119 (1982); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation 100 Harv. L. Rev. 1189, 1194-1209 (1987). []
  2. Coan also flags the possibility that constitutional theory might not depend on external norms at all. An alternative, Wittgenstein-inspired view, might instead hold “that constitutional practice is constitutive of its own norms” (P. 12), in which case the project of normative justification would hold no promise. Coan himself rejects that view, but he brackets the question for purposes of this article (Pp. 12-13.) []
  3. Michael C. Dorf, Create Your Own Constitutional Theory, 87 Cal. L. Rev. 593, 595 (1999). For a concrete illustration of the idea, consider the widely accepted proposition that any legitimate theory of constitutional decision-making must be compatible with the result of Brown v. Board of Education. []
Cite as: Michael B. Coenen, Mapping the Fault Lines of Normative Constitutional Theory, JOTWELL (December 15, 2016) (reviewing Andrew Coan, The Foundations of Constitutional Theory, Arizona Legal Studies Discussion Paper No. 16-24 (2016), available at SSRN), https://conlaw.jotwell.com/mapping-the-fault-lines-of-normative-constitutional-theory/.

Scalia’s Jurisdiction

Fred O. Smith, Jr., Undemocratic Restraint, UC Berkeley Public Law Research Paper (2016), available at SSRN.

Chief Justice John Marshall once veered toward tautology in asserting that the Supreme Court “must take jurisdiction, if it should.” In context, Marshall seemed to be saying that the Court’s jurisdiction is properly set by actors other than itself, such as Congress or the Constitution’s drafters and ratifiers. Marshall therefore concluded that for the Court to either “decline the exercise of jurisdiction which is given,” or “usurp that which is not given,” would equally “be treason to the constitution.”

Yet the Court is often called on to construe the amorphous jurisdictional provisions of the Constitution, as well as federal statutes, and those efforts frequently require new, difficult judgments. So discretion has a way of working its way into even the most staunchly formalist efforts to ascertain federal jurisdiction, as most famously argued in a seminal paper by David Shapiro over thirty years ago.

Now Fred O. Smith, Jr., has given us the latest take on federal courts’ jurisdictional discretion. Smith’s timing is doubly apt, because his paper comes on the heels of two important events: first, Justice Antonin Scalia’s unanimous majority opinion in Lexmark v. Static Control Components, which tried to bring order to this field; and second, Scalia’s recent death, which leaves the field feeling both vacant and full of possibility.

Smith’s main target is the idea that “prudential” jurisdictional rules should be converted into “constitutional” rules. In Smith’s view, Lexmark and related cases have underestimated the value of prudential rules of jurisdiction, particularly by viewing them as contrary to principles of democracy. The practical effect of that reasoning, he contends, is that prudential rules are sometimes hardened into constitutional rules. Scalia is an important figure in this story, since he did more than anyone to delegitimize “prudential” jurisdictional rules while entrenching “constitutional” principles.

Smith sets out to defeat Scalia’s democracy-oriented indictment by showing that prudential jurisdictional principles actually foster beneficial forms of court-congress dialogue. And Smith also contends that constitutionalizing prudence runs the risk of curtailing legislative efforts to expand individual rights and remedies. To support those claims, Smith adduces a wealth of examples from a range of time periods and doctrines, with my favorite being his discussion of mid-century certiorari practice. These historical discussions are bound to warm the hearts of federal courts teachers everywhere.

Smith also discusses the short-handed Court’s recent decision in Spokeo v. Robbins. Disagreeing with those who view the decision as inconsequential, Smith persuasively argues that Spokeo is “significant.” For instance, Spokeo intensified Scalia’s reasoning in Lujan v. Defenders of Wildlife by applying it in a suit that was not only between private parties but also resembled common law defamation. While this is hardly the doctrinal earthquake that might have occurred had Scalia still been on the Court, Smith implicitly demonstrates that Scalia’s jurisdictional legacy is outliving him.

Still, Smith’s argument is avowedly limited, in two ways. First, Scalia’s rejection of prudential rules involved considerations other than legislative responsiveness. In particular, Scalia believed that “prudential” principles were illegitimate in part because they curtailed legislative power, and did so without support in the Constitution’s original meaning and its higher form of democratic authority. So Scalia could have continued condemning prudential rules as unwarranted, even after conceding Smith’s claim that they better facilitate legislative democracy.

Second, Smith is not so much a defender of prudential jurisdictional principles as he is a critic of constitutional ones. As Smith puts it at one juncture: “[T]he goal of this analysis is not to defend prudential limits against a baseline of no limits. Rather, the comparison here is between prudential limits and constitutional limits.” So Smith does not necessarily mean to defend, for example, the “prudential” aspects of ripeness, or to dispel the shade that the Court unanimously cast over that doctrine in Susan B. Anthony List v. Driehaus.

The limitations in Smith’s argument point toward an important zone of agreement between himself and Scalia. To be sure, Scalia would be far more likely to view any given prudential rule as unjustified and replace it with a constitutional rule. In some cases, however, Smith and Scalia would presumably agree that prudential restrictions on jurisdiction should simply be eliminated, without any replacement. Lexmark itself, which converted a prudential rule into a statutory merits issue, may supply an example.

Smith and Scalia would also agree that there are important differences between “prudential” and “constitutional” rules. As Smith recognizes, however, this dichotomy is porous and blurred. For example, Smith suggests that the doctrine of state sovereign immunity is best viewed as prudential. While arguably grounded in the Constitution, it can be viewed as “a self-imposed, threshold doctrine of restraint that Congress may abrogate,” at least under some circumstances. In cataloguing that kind of complexity, Smith gives a comprehensive, up-to-date exposition of current law bearing on the prudential/constitutional divide.

But perhaps the best way forward is to set aside those too-familiar labels and focus instead on more specific underlying traits. Doing so would not only avoid a knotty terminological issue, but also reveal the theoretical disagreements beneath the labels.

For instance, Scalia (and like-minded justices) often wrote as though “constitutional” principles had to be discoverable in history, rule-like, and insensitive to the views of Congress. By contrast, Scalia tended to view prudential rules as “judicially self-imposed,” amorphous, and sensitive to statutory law. But Scalia’s own justiciability principles were hardly less judge-made than the supposedly prudential principles he lambasted. And Scalia’s critics might happily characterize as constitutional many jurisdictional doctrines that are substantially innovative, standard-like, or open to at least some legislative input. In my own writing, for instance, I’ve suggested that standing doctrine is a modern effort to implement the open-ended concept of “judicial Power,” making that doctrine both prudential and constitutional.

In time, Smith’s paper might come to mark a doctrinal turning point. Without Scalia, the Court may no longer rely on the prudential/constitutional distinction. Instead, the Court might come to acknowledge that what Scalia called constitutional rules were really the just the distinctive brand of prudential, judge-made rules that Scalia and like-minded colleagues preferred. Jurisdictional debates would then shift in terminology, and perhaps in substance as well. Rather than jousting over labels, the justices would debate how best to develop inevitably prudential doctrines from constitutional and statutory texts.

It is a credit to Smith’s article that it could survive that intellectual and doctrinal shift. While mostly working from within Scalia’s jurisdictional framework, Smith’s critique also contains valuable insights that could outlast it.

Cite as: Richard M. Re, Scalia’s Jurisdiction, JOTWELL (November 14, 2016) (reviewing Fred O. Smith, Jr., Undemocratic Restraint, UC Berkeley Public Law Research Paper (2016), available at SSRN), https://conlaw.jotwell.com/scalias-jurisdiction/.

Recovering Forgotten Struggles Over the Constitutional Meaning of Equality

Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1 (2016), available at SSRN.

Legal history can help us overcome the distortions of time and distance that too often obscure our understanding of struggles both past and present. Katie Eyer’s Ideological Drift and the Forgotten History of Intent exemplifies this kind of legal history. Through painstaking analysis of a century of equal protection decisions by the Supreme Court, she seeks to explain a “perplexing feature of the Court’s early 1970s jurisprudence: the Court’s race liberals’ failure to pursue effects-based approaches to Equal Protection liability at a time when such approaches were gaining credence elsewhere.”

In Washington v. Davis, 426 U.S. 229 (1976), for example, the Court held that the Constitution does not forbid the government’s facially neutral actions that create racial disparities, even if such disparities have the effect of reinforcing traditional racial hierarchies. Rejecting a challenge to the District of Columbia’s examination for police officers that had the effect of disproportionately excluding African-American applicants, the Court held that the equal protection clause addresses only intentionally discriminatory government actions. No member of the Court—including Justices Brennan and Marshall—dissented from this constitutional holding.

This failure can be both puzzling and frustrating to contemporary progressives who believe that the equal protection clause should be read to bar government actions that have the effect of perpetuating traditional patterns of subordination, even when unaccompanied by the government’s intent to cause such harmful effects. They see Washington v. Davis and related decisions as impediments to the view that racial disparities are sufficiently suspicious to demand substantial government justification, and that disparities that remain unjustified are morally unsound and instrumentally unwise.

Professor Eyer argues that today’s doctrinal barriers can be understood as a product of progressives’ earlier efforts to overcome a different set of doctrinal obstacles. Beginning in the 19th and continuing throughout much of the 20th century, the Court refused to invalidate government actions motivated by discriminatory intent, so long as the actions were facially neutral in form. (The only exception involved the rare situation in which a challenger could show that a facially neutral action was not only motivated by the government’s animus, but also that it led to the virtually complete exclusion of protected class members, such that it was indistinguishable in practice from a facially discriminatory classification).

In the aftermath of Brown v. Board of Education, Southern resisters thwarted desegregation efforts by exploiting the Court’s refusal to consider underlying discriminatory intent. Without a muscular intent doctrine, school districts could frustrate Brown’s promise by framing their racial hostility in facially neutral terms—for example, through “pupil placement” rules that imposed onerous but ostensibly neutral restrictions on students seeking to transfer from their current (segregated) school assignments. Similarly, in Palmer v. Thompson, 403 U.S. 217 (1971), the Court upheld a city’s facially neutral action in shutting down all public swimming pools, despite the city’s motivation to prevent desegregation.

As Eyer observes, “[T]he ability to invalidate a law based on intent, often taken for granted today, was not a foregone conclusion in the aftermath of Brown. . . . Had the Court never embraced an intent-based invalidation standard, our contemporary constitutional regime would offer a far different, and much bleaker, outlook for racial justice concerns. It is thus important to recall that without intent, we would lack a key bulwark against open evasion of the most basic promises of Brown.”

Thus, the Court’s progressives were determined to overcome the doctrinal problem of their day by insisting on the government’s intent to discriminate as the touchstone for an equal protection violation. Not until the 1970s did a majority form around the premise that covertly discriminatory government actions are as offensive to equal protection values as facially segregationist policies. Indeed, as Eyer points out, not until 1985 did the Court invalidate Alabama’s facially neutral constitutional provision disenfranchising those convicted of “moral turpitude,” even though the president of the state constitutional convention had expressly identified the purpose of the provision as “to establish white supremacy in this State.”

At the same time, Eyer explains how the progressives’ emphasis on intent impeded later efforts to force government to reconsider actions that disproportionately excluded people of color and women without good reason. Only after it later became clear that courts would be very slow to find the government’s discriminatory intent did many progressives come to see a doctrinal insistence on intent as a major barrier to realizing the Constitution’s promise of equal protection.

Eyer’s work reminds us how our challenges can consume our attention and energy in ways that make it difficult to recognize change and thus to pivot from positions for which we’ve fought very hard. We should thus take care to remind ourselves of the inevitability and unpredictability of the likely change yet to come. As Eyer concludes, “Where the law’s content has been defined by a social movement’s own successes, it is on the contours of those successes that battles over meaning will be fought. Thus, the history of intent reminds us that it is predictable that doctrines once thought to serve a particular vision of the good will evolve to reflect other competing groups’ normative aspirations. And so too is it predictable that groups seeking constitutional change will ultimately be bound by their victories, just as their losses may also constrain.”

Cite as: Helen Norton, Recovering Forgotten Struggles Over the Constitutional Meaning of Equality, JOTWELL (October 6, 2016) (reviewing Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1 (2016), available at SSRN), https://conlaw.jotwell.com/recovering-forgotten-struggles-over-the-constitutional-meaning-of-equality/.