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Religious Liberty for Some

Jan 30, 2023 Cary C. FranklinAdd a Comment

Since Dobbs came down, I have given many talks and talked with many journalists about abortion law, and the one topic that always arises is religion. People are aware that the Roberts Court has been deeply solicitous toward religious claimants seeking exemptions from various laws—almost always religious conservatives who refuse to provide services to LGBTQ people, obey COVID restrictions, or provide health plans that cover contraception. People often ask about the prospect of using these expansive protections to secure exemptions from abortion bans for people motivated by religious commitments to seek or provide abortions. Sometimes they ask about using the Establishment Clause to argue that abortion bans are religiously motivated and endorse a religious doctrine many Americans don’t share. People asking these questions are generally optimistic. Sometimes, that optimism is coupled with a certain satisfaction that the Court has painted itself into a corner: the Justices may have expanded protections for religious people in cases involving conservative Christians, but surely, they are now compeled to extend those protections to religious liberals as well.

Richard Schragger’s and Micah Schwartzman’s new article, Religious Freedom and Abortion, provides sharp and insightful analysis of these questions. The article examines recent establishment and free exercise decisions and shows that, in many cases, religious liberals who do not subscribe to conservative Christian conceptions of when life begins or who have religious motivations for seeking or providing abortions should prevail under the Court’s new doctrines. But, the article argues, to think such claimants will prevail is to misunderstand the politics of the Roberts Court’s First Amendment jurisprudence—and the fact that it’s politics all the way down.

On the establishment side, Schragger and Schwartzman discuss instances in which lawmakers enacting anti-abortion legislation have violated obligations of religious neutrality by making arguments explicitly biased against people whose religious commitments lead them to support abortion rights. In equal protection and free exercise cases, the Court uses a totality of the circumstances approach to detect animus or illicit purpose underlying facially neutral laws. Schragger and Schwartzman argue there’s no reason the same test shouldn’t apply under the Establishment Clause, and that some anti-abortion legislation ought to be in trouble under this test—particularly given the comments the Court counted as evidence of religious bias in Masterpiece Cakeshop.

Establishment-based challenges to abortion restrictions appear even stronger under reasoning endorsed by Justice Alito and three other Justices in a recent case involving Yeshiva University. In that case, Alito argued that an antidiscrimination law that compelled the University to recognize an LGBT student group “impos[ed] its own mandatory interpretation of scripture” and required Yeshiva to “make a ‘statement’ in support of an interpretation of Torah with which the University disagrees.” On this understanding, Schragger and Schwartzman observe, “[a]n abortion ban might ‘impose its own mandatory interpretation of scripture,’ and, in prohibiting ‘conduct that aids and abets the performance or inducement of abortion,’ it might also be described as requiring religious organizations, and their clergy, to speak in a manner consistent with an interpretation of the Bible with which they disagree.”

These claims have little chance of succeeding at the Court. There’s an outside possibility the Court will dispose of the religious neutrality requirement altogether and simply permit religiously motivated abortion bans. Some academics are pushing the radical theory that preventing religious people from using law to impose their religious views on others violates free exercise, and some Justices could adopt that outlook. But, Schragger and Schwartzman argue, it’s more likely the Court will “avoid[] the total abandonment of a secular purpose requirement while rarely, if ever, enforcing it”—even in cases where anti-abortion lawmakers clearly fail to satisfy “the obligation of religious neutrality” as the Roberts Court has defined that concept in free exercise cases.

One might think free exercise provides a more plausible route to victory for religious liberals because expanding free exercise rights has been a key priority of the Roberts Court. Smith—which held that free exercise does not require exemptions from neutral and general applicable laws—may still be good law, but the Court has substantially limited or declined to apply it in recent cases. Religious conservatives seeking exemptions from facially neutral laws prevailed in Burwell, Masterpiece Cakeshop, and Fulton, and the Court dramatically expanded free exercise protections in a series of COVID decisions holding that public health regulations limiting social gatherings, including for religious worship, were not “generally applicable” and thus triggered strict scrutiny under the Free Exercise Clause. As the Court explained in Tandon, “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”

The victors in these cases were conservative Christians. But, in principle, the Court’s new approach to free exercise should also yield victories for religious liberals. The legislative histories of some abortion restrictions reveal comments at least as hostile to religious liberals as the comments in Masterpiece Cakeshop were toward religious conservatives. And all abortion bans ought to be in serious trouble under Tandon’s single secular exception approach because they all contain exceptions—at a minimum to preserve the pregnant person’s life, sometimes also for rape and incest, fetal abnormality, and the pregnant person’s health. The Court made it clear in Tandon that the question of whether “activities are comparable . . . must be judged against the asserted government interest that justifies the regulation.” In the case of abortion, the government’s interest is in protecting the fetus, and religious exemptions present the same threat to the fetus as secular exemptions. Indeed, in a case involving public health regulations, the Sixth Circuit explicitly held that the government cannot favor “life-sustaining” activities over “soul-sustaining” activities that pose similar risks.

This doctrine should provide a solid foundation for arguments for religious exemptions from abortion bans. But Schragger and Schwartzman are rightly confident the Court will not apply its new free exercise jurisprudence in a consistent manner. Their article examines various unprincipled ways the Court could decline to protect religious liberals. The most radical approach, advocated by some scholars, would be to hold that religious liberals (often the focus here is on liberal Jews) are not entitled to free exercise protections because, unlike religious conservatives, they are not actually obligated to obey religious law.

But the Court does not need to break so radically with tradition. Another way to pick and choose who gets protection would be to revive Smith. Indeed, Schragger and Schwartzman speculate the Justices may have decided to limit and intermittently ignore Smith, rather than clearly overrule it, in anticipation of free exercise challenges to abortion bans. If the Court were to overrule Smith, Schragger and Schwartzman show there are additional (inconsistent and deeply unprincipled) ways to play around with the concept of compelling interest to deny religious people exemptions from abortion bans.

The doctrinal analysis in this article is smart, cogent, and helpful. But the thing I like best about this article is that it provides a particularly good model of how to do legal scholarship when confronted with a deeply politicized Court intent on implementing a partisan agenda. The article is neither naïve nor despondent. It does not pretend the Court will implement its new doctrines and interpretive methodologies consistently, and that the expansion of free exercise exemptions will actually provide religious liberals with a means of winning abortion rights from these Justices. Yet the article is not simply critical or cynical. Relief may not come from this Court, but, Schragger and Schwartzman argue, there may be greater scope for religious freedom arguments on behalf of religious liberals under state constitutions. And just because they’re skeptical of religious liberals’ prospects of securing abortion rights under the First Amendment by persuading the Justices to apply the law evenhandedly doesn’t mean they’ve given up on any possibility of change. They have shown that the Court is engaged in a political project. Politics is the best, and perhaps the only, way to counteract that project.

Movement on Judges

Dec 2, 2022 Leah LitmanAdd a Comment

A National Law Journal article described how, in keeping with prior Democratic administrations, President Biden has relied less on clerkship experience—or at least a particular kind of clerkship experience—than prior Republican administrations. The article observed that while “the road to the bench for many Trump nominees ran through the chambers of a handful of particular judges and justices” (such as Justices Thomas and Scalia), “Biden has relied far less on feeder judges in his nominations.”

Why might that be? And is that a good or a bad thing? A recently published article by Brandon Hasbrouck offers one way of thinking through this. In Movement Judges, Hasbrouck writes movingly (no pun intended) about the importance of appointing jurists “who understand[] that our Constitution contains the democracy-affirming tools we need to dismantle systems of oppression”—judges who “consistently bear in mind the consequences cases have for individuals’ real lives beyond the courtroom.” (Full disclosure: I’m thanked in the article’s acknowledgments for comments on a draft.) Hasbrouck further describes a movement judge as a jurist who is “more committed to shifting fundamental understandings of how the law operates.” And he contrasts these judges and the strategies for appointing these judges with the kinds of judges and the kinds of strategies that Republican administrations have pursued; Hasbrouck describes the Republican strategy as a top-down, hierarchical approach to judicial selection that may have advanced the “conservative legal movement’s” goals, but does not offer the kind of sociological or democratic legitimacy that movement judging would.

Part of what makes Hasbrouck’s article so important is that it challenges some recent calls for progressives to turn to the Constitution outside the courts, or popular or legislative constitutionalism, in the current era of Republican-captured federal courts. While there are many powerful criticisms of judicial supremacy, I’ve sometimes wondered what such accounts have to say about cases where courts are simply asked to enforce existing laws or to interpret existing laws, yet refuse to do so. What would jurisdiction-stripping proposals do for those cases? What exactly is popular constitutionalism or legislative constitutionalism supposed to do in those circumstances? In Part II of Hasbrouck’s Movement Judges, Hasbrouck explores how even the most revolutionary liberationist movements depend on courts, which leads him to conclude that they demand movement judges too. It’s a timely rejoinder and complication to existing accounts calling for progressives to look beyond the courts.

What makes Hasbrouck’s case for movement judges even more powerful is the case studies he provides of movement judges. There’s Supreme Court Justice Sonia Sotomayor; Chief Judge of the Fourth Circuit Roger Gregory; Judge Carlton Reeves of the Southern District of Mississippi; and North Carolina Supreme Court Justice Anita Earls. If you haven’t heard the last name, you should: Justice Earls was one of the Justices in that court’s Harper v. Moore, which will be heard by the Supreme Court in December. She also authored the pathmarking recent opinion that addressed what to do about legislation and state constitutional amendments that were enacted or proposed because of the support of legislators elected from unconstitutionally racially gerrymandered districts, and was in the recent majority opinion requiring the state to provide a sound education for all North Carolina students. Hasbrouck more than makes the case for these movement judges without the benefit of the more recent opinions, but the judges’ recent opinions only underscore that Hasbrouck knew what he was doing, both when he identified some jurists as movement judges and when he wrote so powerfully about their importance.

Another case that’s pending at the Supreme Court underscores Hasbrouck’s emphasis on the importance of movement judges who will advance the law to serve movement aims. It also suggests that Republican administrations have, despite the top-down approach to judicial selection, done a good job of selecting judges who use their positions to move the law to further “movement” (broadly conceived) goals. The case (Jones v. Hendrix) is also about an issue that Hasbrouck wrote about just a few years ago in Saving Justice: whether people who were wrongly convicted or mistakenly sentenced in federal court because of an error of statutory interpretation can file a habeas petition challenging their conviction or sentence. A little more than a decade ago, the federal courts seemed to agree that the answer was yes. People who received more time in prison than the law allowed, or who were convicted of something that isn’t a crime, could indeed file a habeas petition.

But then a judge on the Tenth Circuit suggested that all of those federal courts were wrong and pioneered a different approach. That judge, of course, was Neil Gorsuch, who’s now on the Supreme Court that will ultimately decide the question. It’s yet another case study that underscores the importance of movement judges—at least in the sense of jurists who are focused on moving the law in particular directions. And if you have doubts about how the Court should resolve the case, Saving Justice should convince you. It also might convince you that a current or future administration should select Brandon Hasbrouck as a movement judge. (The opening of Movement Judges describes Hasbrouck’s interview with a judicial selection commission.)

Hasbrouck’s Movement Judges sounds a cautiously optimistic note about President Biden’s nominees; he says that the administration is “shooting in the right direction” even if the administration is not “aiming at the target.” What Hasbrouck hopes to see is a slate of judges open to the possibility of pursuing democratic movement goals in a movement-oriented way, rather than judges with a more establishment bent or outlook toward the world. That is, the administration might be looking just for nominees with certain credentials in a particular hierarchy. They might also be appointing judges who are actively looking to move the law to further movement goals, in the way that some recent Republican nominees have attempted to do so.

But maybe the fight isn’t just about what administrations should look for when they are selecting judges, but about what judges should do when they decide what kind of judge they want to become over the course of their career. Hasbrouck’s article might be directed not just to future Democratic administrations as they consider what kind of judges to appoint, but also to individual nominees who make it through the hurdle of the confirmation process. And maybe some of them will find reasons to be open to the (more democratic) movement demands that Hasbrouck encourages them to listen to.

We Care

Nov 4, 2022 Paul HorwitzAdd a Comment

The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?

Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake.

Fontana and Krewson start with the basic premise that the responsibility of democratic public officials to speak comprehensibly to the people extends beyond the “rhetorical presidency” and “rhetorical legislature,” and includes the “rhetorical Supreme Court.” Of course, the Court “speaks” all the time. But its opinions are neither “widely known nor widely understood. If the Justices want to speak to the people they must sometimes speak like the people.”

This, they contend, the Justices have been doing to an increasing degree, by “speak[ing] more about important constitutional issues in public.” This is a good thing: without sacrificing legitimacy, “The Justices can be bilingual: They can speak the technical language of the judicial opinion and the comprehensible language of the layperson,” thus enabling more Americans to take part in our “constitutional conversations.”

Fontana and Krewson develop their argument through a set of interesting studies, surveying reactions to public statements and appearances by Chief Justice Roberts and Justice Sotomayor, as well as a hypothetical appearance by Justice Alito. They find that even a fairly bloodless official statement by Chief Justice Roberts, asserting that “[w]e do not have Obama judges or Trump judges,” had a positive effect on public perceptions of the legitimacy of the Supreme Court. But they are more enthusiastic about the “democratic rhetorical power” of more informal and approachable justices, of whom Justice Sotomayor is their prime example. (Those who have seen Justice Thomas’s public appearances might add him to the list.) Sotomayor, they argue, is effective because she is direct, personal, appeals to her own life experience, and emphasizes her humanity. Such an approach, they find, strongly increases the public’s favorable views of Sotomayor—or of Justice Alito, making a hypothetical appearance using a similarly personal style—and of the legitimacy of the Court itself. Such appearances “can be constructive from the perspective of the democratic situation of the Supreme Court,” creating a more engaged public audience than judicial opinions alone can achieve.

There is a lot to engage with in this paper. I surely have not done justice to it here. There are also many points for potential questions or disagreements. That is only natural, given the article’s ambitious scope. It’s also natural given the paper’s use of terms and concepts—legitimacy, connection, engagement, “the democratic potential of the Supreme Court,” “popular empowerment,” and so on—that defy precise definition and are hardly absolute goods.

One might ask, for example: What is the right level of public perception of the legitimacy of the Supreme Court and its members? I take as a given that there is value in sociological legitimacy—in a general public view that the Court is legitimate. But, as Richard Fallon has noted, we might also think of the Court in terms of moral and legal legitimacy. Personable judges launching a charm offensive on the lecture circuit might unduly improve public perception of the legitimacy of a Court that is not, in fact, particularly legitimate across those other dimensions.

Similarly, what is the optimum level of approachability when Justices speak to the public? Contrasting Roberts’s statement with Sotomayor’s speech, the authors argue that public engagement was limited in the former case because “there was no mention of Roberts’s life story, no example of particular people positively affected by the worldview reflected in his statement, or any other attempt to stimulate.” Surely this limited its public impact. But one might just as easily be grateful for these omissions. We expect what we grow accustomed to. Once presidents started planting carefully scouted “normal people” in their reserved seats at the State of the Union Address, and warmly exploiting them in their speeches, this junk quickly became an annual ritual. It’s effective, but awful. Nor does it ensure that the audience actually understands the state of the union any better—even if it thinks it does. Would Roberts’s statement truly have been better had it included a homespun invocation of boyhood in Indiana? The Court’s opinions could be more readable and much shorter. But there is a lot to be said for not being too approachable and too informal.

I have other questions. Are the statements they examine truly “substantive,” as they suggest, or mostly merely vapid? What does it mean to call such statements and appearances “authentic?” Does it make a difference, in considering their ostensible authenticity, that the most personably oriented appearances by the justices often consist of millionaires hawking their “authentic” books to make more millions? But one may take all this as a compliment. Such questions are a natural consequence of a paper that is commendably ambitious, that brings a variety of tools to its work, and that engages with the question of public appearances by justices on a deeper and more detailed level than most treatments of the subject.

Barry Sullivan and Ramon Feldbrin’s article, The Supreme Court and the People: Communicating Decisions to the Public, is, one might say, equally expansive but less ambitious. It begins from a shared concern: the Court speaks primarily through its elephantine opinions, and its failure to communicate its decisions represents a missed opportunity to shore up its “political capital and legitimacy.” The authors are not, however, concerned with extrajudicial speech writ large, or with the “rhetorical power” of the Court and its members as a broad concept. Their article takes taking the centrality of judicial opinions as a given, while asking how well or poorly the Court disseminates its written work.

Why, to take the example that leads off the paper, did reporters do a poor job in reporting the Affordable Care Act decision? Some of the blame clearly lies with the reporters, who race to be first rather than best. But most of it lies with the Court. Its absurd attachment to a fixed “Term” leads it to issue multiple major opinions in a pile at the end of June, making it harder for intermediaries like the press to absorb and convey the import of the opinions. It offers no formal help to the press in understanding those opinions. Its press officer’s remit is limited. Its default position is to exasperatedly blame the press for errors, as if the Court’s indifferent approach does not contribute to them. It may think its approach maintains the institutional seriousness of the Court and keeps it above the fray. But it achieves the opposite result.

Sullivan and Feldbrin’s contribution lies in the comparative materials they bring to bear on the question of Supreme Court communication practices—and, in contrast to Fontana and Krewson’s deeper theoretical dive and unconventional recommendation, in their insistence on “sensible, possible innovations that would improve the Supreme Court’s communication of its decisions to the press and the people.” It ain’t fancy. But it is refreshingly practical.

Many of the innovations Sullivan and Feldbrin discuss have been noted elsewhere. If anything, it would be astonishing that American constitutional scholars are not more aware of them, were it not for the power of American parochialism. But those innovations are usefully brought together here and explained clearly and well. The authors focus on Germany’s Federal Constitutional Court and the supreme courts of Canada and Israel. All three courts have found ways to acknowledge and enhance “the vital importance of correct, complete, and timely accounts of their work.” All of these measures are achievable here.

In Canada, for instance, the Supreme Court employs an Executive Legal Officer, who briefs journalists about the Court’s opinions on an embargoed and off-the-record basis, so that they are able to describe them accurately when they are issued. It “space[s] out the announcements of its decisions so that reporters [will] not be overwhelmed.” It issues “Cases in Brief:” summaries of its decisions designed to be accessible to the lay reader. And, in an effort to reach Canadians outside of its Ottawa sanctum in a way quite different from the speaking tours of individual American justices, it recently began holding oral argument road-shows. (This comes on top of its longstanding practice of televising oral arguments.)

The German Federal Constitutional Court has compensated for the length and complexity of its written opinions by creating a press office “that regularly prepares press releases with detailed descriptions of selected decisions.” It provides advance access to important judgments on a selective and embargoed basis. And its opinions begin with “leading sentences” that provide a clear description of the judgment, a practice that one commentator calls “far more satisfying and useful than the rambling reporters syllabus” for American Supreme Court judgments. The Israeli Supreme Court has experimented with broadcasting its arguments, and provides “short summaries of important decisions” that are issued at the same time the judgments are released to the public. When the court issued an opinion on the controversial question of the citizenship status of foreigners who convert to Judaism outside of Orthodox communities, it “took the unusual step of releasing a Q&A document…with the deliberate purpose to better explain the reasons for the long-awaited and contested decision to reporters and the public.”

None of the innovations described by Sullivan and Feldbrin are beyond questioning, both on their own terms and in terms of their suitability for transplantation to American soil. Many of these questions would fall under the general rubrics of democracy and elitism. Insofar as the practice of providing advance access to and explanation of its opinions will be selective, involving an accredited or invited press, it may smack of special privilege or elitism in a way that might be acceptable elsewhere but unpalatable here. (I set worries about leaks to one side; Americans are doing just fine on that front despite the lack of advance access. And although leaks like that in Dobbs are extraordinary, the seemingly annual post-Term tradition of individual justices airing their grievances to a few hand-picked reporters is no less elitist.)

Others involve the role of the Court. There is an easily crossed line between “explaining” a court’s decisions and propagandizing on behalf of that court qua political actor, illustrated by the reported hiring of a PR advisor by the president of the Israeli Supreme Court to “improve the Israeli Court’s public image.” The justices of our Supreme Court may care about its perceived legitimacy and public support, but still think its actual legal and moral legitimacy require it to let the people decide what they think about it without any interventions on their part. They may also think that even its perceived legitimacy would lose more than it gained from such an attempt. But of course, that is a form of non-neutral public relations strategy too. As Abraham Lincoln said, if you choose not to decide, you still have made a choice.

Both authorial pairs have made a valuable contribution to discussions of the public-facing approach of the Supreme Court. Just as important, in true peanut-butter-and-chocolate fashion, the roughly contemporaneous appearance of both articles adds a complementary value to each one, and to both taken together. Each provides a different focus. In Fontana and Krewson’s case it is the contribution that might be made by individual justices speaking extrajudicially; in Sullivan and Feldbrin’s case it is what the Court might do institutionally to make its opinions more accessible. Fontana and Krewson bring interesting empirical tools to bear on the issues they raise; Sullivan and Feldbrin employ comparative work to expand our sense of what is possible. Fontana and Krewson offer a valuable theoretical discussion; Sullivan and Feldbrin work in the practical realm. Together, they taste great.

In several senses, both papers are also very timely. The Court’s public approval standing has plummeted. Regardless of its legal or moral legitimacy, its role in the culture wars in a polarized society, and its convenience as a target in partisan politics, will not enhance its perceived legitimacy. The justices are well aware of this and are attempting to respond, at least on an individual basis. It is thus an excellent time to think about what the Court could do to shore up its real and perceived legitimacy.

In another sense, one may ask how much anything could help much right now. I say this not because the current 6-3 majority is disfavored by most law professors and journalists and many others; millions of Americans are delighted by it. But it is entirely possible that on both sides of that divide, the overriding concern will not be with “legitimacy” as such, but with acceptable results. The tendency to put that conversation in the language of legitimacy will only “weaponize” that term, to use the cliché of the day. The Court may find that whatever communications strategy it adopts will be the equivalent of baling out a sinking frigate with a tablespoon. That said, the issue is certainly not going away. Between them, these two articles offer food for thought and viable, practical options.

The Press’s Responsibilities as a First Amendment Institution

Oct 3, 2022 Helen Norton1 comment

At a time when it’s all too easy to dump on the press, it may be surprising to find press law scholar Erin Carroll, a former journalist herself, adding to the criticism. Yet in News as Surveillance, a symposium essay, she illuminates “how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well.”

21^st-century technologies now empower platforms to collect and aggregate information about us, and then to use this information to influence our choices to their own advantage, and in ways that we would resist if we were aware of their efforts. More specifically, platforms’ surveillance of our reading habits and preferences enables them to design and deploy interfaces that change our decisions about when to buy, click on, read, or forward specific content. Informed by data surveillance and fine-tuned through A-B testing, these interfaces can double, triple, even quadruple our willingness to accept online offers and requests.

It turns out that the press is part of this problem. Carroll explains the substantial extent to which news organizations collect—and allow others to collect—data about their online readers. Indeed, “[n]ews websites are among the internet’s worst offenders when it comes to tracking their visitors. News sites contain more cookies and other like devices aimed at vacuuming up user data than do gaming, shopping, sports, or pornography sites.” And here too, the information collected and aggregated by this surveillance enables those sites to manipulate their readers, as some news organizations have studied “how a particular piece of news might make a reader feel” and how to target advertising to that reader accordingly.

Maybe we shouldn’t be surprised. The press now confronts existential threats. It faces an environment where an ever-growing number of speakers compete for our increasingly scarce attention through a variety of features that manipulate us into staying online longer, thus spending more money and shedding more data. Who can blame the press for vying for our eyeballs, our time, our data, and our dollars with the same techniques that rivalrous speakers and platforms are using to bury it?

Carroll can. She describes news organizations’ surveillance of their readers as inflicting injuries to our democracy different in degree and in kind from the considerable harms posed by surveillance capitalism more generally (see, for example, here, here, and here). For instance, armed with the extensive information about our reading habits and preferences served up by surveillance, news organizations can feed us more of what we’re already reading to keep us online as long as possible. In this way, Carroll explains, news surveillance narrows the “menu of news from which we can choose,” limiting our efforts to explore and discover, and reducing our exposure to “surprise and serendipity.” This harmful feedback loop also exacerbates “the very real danger of journalists using likeability and shares as a measure of a story’s importance.”

Carroll also worries that we will be less likely to read the news when news organizations monitor our reading history—and that this, in turn, means that “we will likely know less about our neighbors, our communities, and the world around us. When we act in personal and political capacities it may be from a place of ignorance. Likewise, we may avoid action altogether.” For a brick-and-mortar parallel, think of a public library that tracks what we read and then uses that information to shape our choices about what to read (and what to buy). This is not what we want from libraries—nor from newspapers.

Carroll expects more from the press precisely because it is “a named beneficiary of the First Amendment” that serves the constitutionally valuable functions of watchdog, educator, curator, and more. Although the definition of the “press” for First Amendment purposes is contested, here I adopt (and I think Carroll would too) Sonja West’s functional understanding of the press that attends to its actual ability and commitment to gather news and disseminate it to the public in ways that serve as “a check on the government and powerful people.” Although today almost any of us can be a publisher, West points out that relatively few of us have the training, capacity, or dedication to be newsgatherers.

When the press (as defined above) monitors our reading history and then uses that information to manipulate our choices, it violates the intellectual privacy that is key to our constitutionally protected freedoms of thought and expression. Carroll sees this as an ethical breach, “a special brand of betrayal” by an institution “dependent on its readers’ trust, one that checks abuses of power.” And this betrayal harms not only us, but also the press itself: “it is not a winning long-term business model for the press.” (Carroll is not alone among the press’s defenders in asserting that the press’s status as a First Amendment institution carries with it First Amendment responsibilities as well as First Amendment rights. Peter Coe, for instance, suggests that a news organization’s constitutional protections should depend on its demonstrated commitment to ethical behavior when gathering and publishing the news.)

But by no means has Carroll has given up on the institution she loves. Like others, she calls for new business models and policy measures to relieve some of the economic pressure on the press, thus reducing its financial incentives to surveil its readers. Emphasizing transparency as among the press’s greatest virtues, she also urges the press to reveal its own surveillance practices. Along these lines, she applauds the New York Times for reporting on, and publishing op-eds condemning, its and other news organizations’ surveillance of their readers.

And in other work, Carroll suggests that our democracy would be healthier if at times the rest of us behaved more like journalists. She describes journalism as “a method and a practice—an evolving system for gathering, curating, and conveying information. Among its aims are accuracy and truth, the checking of power, and the creation of spaces for criticism and compromise,” through tools that include “verification using multiple sources, interviewing those with first-hand knowledge, and correcting errors.” In proposing that thinking and acting like journalists can help us build constructive habits of mind, her work parallels the connections drawn by Vince Blasi between free speech and the development of positive character traits like “inquisitiveness, independence of judgment, distrust of authority, willingness to take initiative, perseverance, and the courage to confront evil.”

In News as Surveillance, Carroll exposes some unflattering truths about the institution she so values, even as she shares her continuing hopes for it (and for the rest of us). In so doing, she poses ambitious, maybe existential, questions for the press. What does the press’s behavior tell us about what it values? And what does that, in turn, tell us about whether and when we should value the press?

Lessons from Progressives’ Use of “Conservative” Constitutional Principles to Battle Trump

Aug 18, 2022 Ilya SominAdd a Comment

During the Trump Administration, progressives often found themselves resisting administration initiatives by appealing to constitutional principles traditionally associated with conservatives and libertarians: federalism limits on “commandeering” of state and local governments, separation-of-powers constraints on federal spending and regulation, and traditional civil libertarian approaches to freedom of speech that have come under increasing disfavor on the left.

In his compelling recent book Principles Matter, legal scholar Carlos Ball argues that progressives should stick to these ideas in the future as a matter of principle, not just as temporary litigation strategies deployed against Trump. He makes a strong case that, in some ways, could be even stronger and more far-reaching.

For many decades, constitutional federalism was out of favor on the political left because of its association with opposition to the New Deal and “states’ rights” defenses of racial segregation. Ball recognizes this history, but also points to episodes where federalism has been deployed for causes progressives approve of, such as opposition to the Fugitive Slave Acts in the 19th century and state resistance to federal marijuana prohibition.

As he chronicles, the Trump administration saw a massive upsurge in the use of federalism arguments by the left, most notably in the largely successful effort to resist Trump’s efforts to coerce “sanctuary cities” and states into helping him expel  undocumented immigrants, a subject I have written about myself. Here, liberal states and localities relied on anti-commandeering principles pioneered by conservative and libertarian jurists and legal scholars—and opposed by most liberals at the time.

Ball also describes how liberals used federalism to resist Trump on several other fronts, including environmental policy, the War on Drugs, and Trump’s efforts to pressure states into early “reopening” during the Covid-19 pandemic.

He tells a similar story regarding separation of powers. Historically, liberals have often sought to curb presidential power when it comes to national security and foreign policy issues but have often supported, or at least accepted, its growth in the domestic sphere. Ball effectively argues that this stance should be reconsidered in light of the experience of the Trump years. Separation-of-powers restrictions on the executive were crucial to liberal efforts on the sanctuary cities issue (as the executive sought to attach conditions to federal grants that Congress never authorized), efforts to combat Trump’s use of emergency powers to build his border wall, and much else.

Ball urges liberals to endorse more rigorous judicial enforcement of federalism and separation-of-powers constraints in the future, even if doing so will sometimes constrain progressive policy priorities. He does so for three interlocking reasons. First, these limits on federal power–especially executive power–can forestall the great downside risk of an illiberal authoritarian president like Trump subverting constitutional government and inflicting great harm throughout the nation. Preventing this danger, he argues, is more important than making policy gains at the margin.

Second, federalism constraints would enable large parts of the country to pursue progressive policies even in the face of a hostile president or Congress. Progressives are likely to retain control of many key states for a long time to come, and these states’ autonomy is a valuable resource.

Finally, the conventional wisdom that conservatives benefit from a weak federal government and liberals from a strong one is, Ball suggests, in need of revision. Particularly since the rise of ethnonationalism under Trump, conservatives have an expansive agenda for the use of federal power—particularly when it comes to issues like trade, immigration, and law enforcement. Now that the Supreme Court has overruled Roe v. Wade, conservatives might also seek to enact nationwide restrictions on abortion. Such laws might be vulnerable to federalism challenges.

It is notable that Ball is willing to go so far as to advocate a revival of a strong nondelegation doctrine, an idea championed by conservatives such as Supreme Court Justice Neil Gorsuch but anathema to many on the left. But, as Ball explains, broad delegation can easily be exploited by the right for dangerous purposes. In fact, it was used by Trump to impose unprecedented restrictions on immigration during the Covid pandemic.

When it comes to the First Amendment, Ball documents how courts’ broad approach to freedom of speech stymied a variety of President Trump’s efforts to use the power of government to punish his critics. While liberals have never rejected robust judicial protection of freedom of speech in the same way as they have for federalism and domestic uses of executive power, recent trends in liberal legal thought advocate major exceptions to such protections, including arguments for the regulation of “hate speech”, for bans on the spread of “misinformation,”  and for restricting the speech of those who supposedly wield excessive influence (such as wealthy individuals and corporations spending money on campaign and issue advocacy).

Ball correctly points out that hate speech laws can just as easily be used to prosecute left-wing speech as that of the right, and in fact have been used that way in jurisdictions that have them. It’s not hard to imagine how such power could be used by the likes of Trump.

Professor Ball might have done well to extend his argument in at least three ways. First, his defense of federalism could be augmented by recognition of the value of giving people opportunities to “vote with their feet.” Policy variation between states and localities enables people to choose those jurisdictions whose policies best suit their needs. Historically, this has been an especially great boon to the poor and disadvantaged, seeking opportunity and escape from oppressive policies. Foot voters have incentives to make better-informed and less-biased decisions than ballot-box voters. By contrast, a one-size-fits-all federal policy makes foot voting far more difficult, as the only way to do it would be to leave the country entirely. The new law—or laws—of abortion will surely bring this point front and center for many progressives.

If progressives believe “blue state” policies are genuinely superior to red ones, they should welcome the opportunity to prove it by attracting foot voters from red jurisdictions. In cases where the former end up actually losing residents to the latter, the loss can be a useful signal that they need to reform some of their policies. For example, there is growing recognition that blue states such as California need to cut back on exclusionary zoning that artificially increases the cost of housing and drives out poor and lower-middle-class residents, thereby also potentially cutting them off from valuable jobs and other opportunities.

Second, Ball could extend his embrace of federalism to encompass limits on the scope of federal regulatory authority under the Commerce Clause. While traditionally championed by liberals, the Supreme Court’s incredibly broad interpretation of this power has licensed somedangerous and destructive policies that the left has good reason to abhor. For example, rulings like Gonzales v. Raich (which reached the absurd conclusion that the power to regulate interstate commerce includes the authority to bar the possession of marijuana that had never crossed state lines or even been sold in any market within a state) underpin the enormously destructive federal War on Drugs, which has caused great harm to minorities and the poor.

It is too often forgotten that the iconic New Deal-era Commerce Clause decision in Wickard v. Filburn—the most expansive Commerce Clause ruling prior to Raich—upheld a law designed to promote a nationwide cartel to increase the price of wheat, thereby raising the price of food in the midst of the Great Depression, when millions of people were already finding it hard to make ends meet and to avoid malnutrition.

Progressives might want to consider whether avoiding such awfulness is worth the price of cutting back on some uses of federal regulatory power they might like. Perhaps the answer is “no.” But it will take a lot to outweigh the massive harm caused by such policies as the War on Drugs and federally sponsored food cartels that victimize the poor.

While most of Ball’s analysis is insightful and on-target, I have a few nits to pick. In the historical sections of the book, he (like many scholars) overstates the extent to which the Lochner-era Court was committed to “laissez-faire” economic policy—in reality, it upheld far more economic regulations than it struck down—and overstates the progressive benefits of the New Deal-era expansion of federal power. Wickard v. Filburn is just one of many examples where the latter disadvantaged rather than helped the poor.

A more general problem is that Ball avoids specifying exactly how tight limits on federal power or executive authority should be, or what constitutional theories should be used to generate answers to these questions. This potentially leaves him open to accusations of a “fair-weather” approach to federalism and separation of powers. Both, of course, are common problems on both sides of the political spectrum. Ball generates the beginnings of a response to this critique by emphasizing his willingness to adhere to the limits he advocates even in cases where they impinge on progressive priorities, and gives a number of examples. But a more systematic approach to this issue might help.

A related issue is that the political valence of federalism and separation of powers has shifted at times in the past, and could potentially shift again. Recent left-liberal reliance on these principles reflects an era where federalism is no longer associated with bigotry, and national power no longer associated with tolerance and equality, to anything like the same extent as was true at the height of the Civil Rights movement.  The political impact of executive power has also shifted over time. Conservatives were more hostile to executive authority and liberals more supportive during the post-New Deal era, when the Democratic Party controlled the White House most of the time and that dominance seemed likely to continue. While Ball calls for adherence to federalism and separation-of-powers constraints as a matter of principle, it is not entirely clear to what extent this call is shaped by the conditions of the present political moment.

Despite such caveats, Principles Matter is an important contribution to the debate over constitutional limits on government power in the wake of Trump. Scholars, policymakers, and legal commentators across the political spectrum have much to learn from it.

Should We Abolish Qualified Immunity?

Jul 20, 2022 Katie Eyer1 comment

Almost everyone, it seems, is against qualified immunity. Progressive scholars, organizations, and judges have decried the doctrine for shielding unconstitutional conduct from liability, and have argued that its legal foundations are weak and misguided. Conservative and libertarian scholars and judges have also begun to attack it, for both its legal illegitimacy and its perverse effects. Even large swaths of the public have become familiar with the arcane doctrine of qualified immunity, and oppose its continued application.

There are many reasons to criticize qualified immunity doctrine, but it is clear that for many, a primary motivation is its connection to police violence. With the rise of the Black Lives Matter movement, and increased attention to the problem of police violence against the Black and brown communities, the doctrines that shield such violence from civil legal liability have come under increased scrutiny. Central among these is qualified immunity, which can require an almost absurd level of legal “notice” that even unnecessarily deadly uses of force are unconstitutional. It thus seems intuitively obvious that those who care about ending police violence should care about abolishing qualified immunity. But will ending qualified immunity get us any closer to the goal of ending police violence?

This is the question raised by Adam Davidson’s provocative piece, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity. Davidson concludes that it will not; indeed, he contends that if anything it is likely to lead to a stickier and more damaging body of case law, one that finds police violence to be constitutional on its own terms. As Davidson puts it, “Quite simply, there is little reason to think that federal courts will be more open to civil rights plaintiffs without qualified immunity standing in their way.” Thus, the abolition of qualified immunity is likely to lead a larger number of adverse constitutional decisions on the merits—decisions that, as Davidson points out, would be considerably more damaging and harder to disrupt than a ruling on qualified immunity.

Davidson’s argument is a complicated one, but its core premises can be stated simply. The federal courts have never been especially sympathetic to police misconduct plaintiffs, and there are genuine reasons to be concerned that the recent influx of Trump appointees will exacerbate this tendency. Moreover, there is a substantial body of literature suggesting that courts tend to “equilibrate” to the level of rights enforcement they deem appropriate. To reach that balance, they will draw on whatever tools are available to them—whether preliminary (as with standing doctrine), procedural, or merits-based. Eliminating the procedural tool of qualified immunity is likely to push judges into the terrain of adverse merits and standing holdings. Because those adverse holdings would be largely constitutional in nature, they could not be reversed through the democratic process. These adverse holdings thus could be locked in for decades to come, especially because of the current progressive recommitment to stare decisis in the face of conservative attacks on precedents such as Roe and Grutter.

In light of these potentially perverse effects, Davidson urges advocates to reconsider efforts to abolish qualified immunity, and to devote their limited political capital to “raising the rights floor” for police misconduct through legislation. With respect to the former recommendation, he suggests that losses on qualified immunity are preferable to those on the merits, since they are less durable and easier to change. Thus, it may counter-intuitively make more sense to leave qualified immunity in place, so that advocates can “lose best” (i.e., in the least damaging way). On the latter front, Davidson points out that there are far more direct ways for those who care about police misconduct and violence to address those issues than by abolishing qualified immunity.

The latter point bears elaboration, since so much of our focus as constitutional law scholars is often on constitutional enforcement. In the area of police misconduct and excessive force, it is, as Davidson points out, far from clear that constitutional solutions are likely to be the most effective ones. This is partly because it is unrealistic to expect a federal judiciary that has been increasingly unreceptive to the claims of civil rights plaintiffs to dramatically shift course after the abolition of qualified immunity, especially given the recent influx of ideologically conservative Trump-appointed judges. But even shorn of qualified immunity, there are numerous other obstacles to the use of Fourth Amendment excessive force jurisprudence in reshaping policing practices. Indeed, if our experience with excessive force litigation teaches us anything, it is that constitutional litigation alone is insufficient to dismantle the serious, widespread, and systematic problem of police violence.

What, then, might better address problems of police use of force? This question is obviously a complicated one, and Davidson does not purport to afford it full treatment in this piece. But he suggests that direct efforts to “raise the rights floor,” and to redirect control of policing to the communities affected, are worthwhile places to start. As Davidson and others have pointed out, such efforts have already seen some successes. Many cities, for examples, have banned chokeholds or knee-on-neck maneuvers in the wake of the George Floyd killing. The work of other scholars, focusing on how political movements could shift resources and control away from police departments, provides numerous other ideas on where legislative reforms could be productive. And important work on police unions, training, and culture suggests yet other areas of important reforms.

Ultimately, I came away largely persuaded by Davidson’s argument that abolishing qualified immunity is unlikely to be the best use of the limited legislative reform capital of those who care about ending police violence. Simply put, its likely impacts are too remote when compared to more direct measures to justify making it a legislative priority, in a world in which the legislative will for change is finite. But I was less persuaded by his contention that we should affirmatively avoid abolishing qualified immunity (including, e.g., through judicial advocacy). After all, any use of force case necessarily involves getting past qualified immunity to reach the substantive constitutional issue. We cannot avoid rulings on the merits unless we want police misconduct plaintiffs to always lose. Just as important, if we let this moment of collective disapproval of qualified immunity pass, it seems unlikely that we will have an opportunity to revisit it soon. Qualified immunity has been with us for more than 50 years—though, as recent scholarship has pointed out, for less time in the excessive force context. It erects an insurmountable barrier for many excessive force plaintiffs (and other constitutional plaintiffs). If we have the ability to eliminate it through judicial advocacy, we should seize that opportunity now.

In the end, although I may quibble with some of Davidson’s takeaways, his core insights are no doubt important. Abolishing qualified immunity is unlikely to radically change excessive force practices on the ground. Indeed, as Davidson predicts, it may lead to even more merits losses for constitutional excessive force claims in the courts. If we wish to change police practices, we must, as Davidson puts it, change “who decides”—shifting that power from the federal courts to state and local legislatures or, even more radically, to those local communities most affected by policing themselves.