Tag Archives: law

McArdle on Scalia

Blog-favorite Megan McArdle has a column on replacing Justice Scalia, which largely tracks what I wrote yesterday. The reason she’s a blog-favorite, though, is the insight she adds about the political process:

But [getting your way through the court rather than legislature] doesn’t fix the political problem. It only moves it to the question of how the justices are picked, a question that is about to catapult our political system into a new, and more dangerous, level of crisis. For if you leave people no way to work through the system, they are apt to start working against it instead.

I failed to point this out yesterday, but she’s right that the fights you would normally have in the legislature through voting and lobbying (on abortion, gay marriage, campaign finance, etc) are now fights about stacking the federal courts. Getting your way on an issue here or there is nice for the people involved, since it’s difficult to pass constitutional amendments on a contentious issue, and also rare that SCOTUS overrules an important precedent quickly. However, The same goes on issues you lose on, so for most people in the political mainstream it’s a wash. (Worse, making something constitutional law is an inflexible approach, while democratic legislating is at least adjustable.)

Now, instead of having to lobby for a law, you have to make sure to elect senators who will approve judges you like. All the issue-specific voting and lobbying is now transferred to the legislative level. This has led to higher and higher polarization as all issues, effectively, are handled this way, rather than one-by-one. Meanwhile, the energy and money spent on lobbying has to go up because each election is so much more consequential.

Basically, this is a stupid system.

Everyone’s An Originalist

It’s no secret to the loyal reader that I’m somewhat of a fan of Supreme Court Justice Antonin Scalia who died this weekend. I’ll ignore political implications of this death which began far too quickly after it was announced. I won’t even talk much about the man himself, since others are doing that plenty and I hadn’t met him yet. (We have a mutual friend who was willing to introduce me but we never got around to it. Carpe diem, people.) I’ll say only that he was just imperfect enough to open himself up to some justifiable criticism, though no more so than anyone else I know.

Instead, I’ll spend a few paragraphs defending Scalia’s legacy, the interpretive method known as originalism. You may have seen sarcastic mentions of it on your social media feeds that mocked Scalia for allegedly being stuck in the 18th century.  My point is that originalism is the way everyone interprets everything, and constitutional interpretation should not be different; in fact, there are good reasons to make that presumption even stronger.

The Marriage Analogy

Imagine you’ve been married for 20, 25, 30 years, and your spouse comes to you and says, “I know we’ve been together for a long time, but I’m going to have an affair. When I said I’d be faithful, that was a long time ago. We’re getting bored with each other, and infidelity is very common now, so it would really be better if I could have an affair.” You probably wouldn’t appreciate their living relationshipism. You’d feel betrayed. You wouldn’t care how long ago the agreement was formed or infidelity was really on the rise. You’d interpret your agreement the way it was when you made it. If your spouse wanted a change, he/she should have come to you. Couples make adjustments to stay happy (up to and including sanctioned straying, pop culture tells me), so your spouse had that option available if something needed to be changed.

What if your spouse argued that he/she had the right to cheat all along? “Infidelity was always high, and common in many cultures. You really could never have had an expectation I’d be faithful. It just happens to have come up now.” I imagine you’d fight back on that, too. You’d point to your wedding vows, for example; you’d point to the cliched bachelor/ette party comments about your last sexual partner ever; you’d point to what all your friends and family expected your marriage to be.

Don’t look now, but you’ve just engaged in originalism, which just means that an agreement means what it means until it’s properly changed through whatever mechanism changes it. If your marriage arrangement isn’t working, the expectation is to jointly change it by mutual agreement; if a constitutional arrangement isn’t working, the proper path is to amend the constitution. I contend that most people would be irate if their friends or business partners engaged in constant unilateral re-writing of prior agreements. (Being homo hypocritus, of course, we’d keep doing it, because it’s different when we do things.)

The Real Complaint About Originalism

What’s bothering most people about Nino’s originalism (and mine, I guess) is that it isn’t giving them what they want easily, especially the socially liberal chattering classes. The constitution (and its amendments), written when it was, was not friendly to women, or minorities, or the poor. The fact that we wish it weren’t so doesn’t change the language and the original understanding of it. It’s up to us to change the law in a way that reflects present-day public will, to the extent such a thing exists. People who complain about originalist interpretations are mostly mad that they can’t convince enough of their fellow citizens to make the necessary changes.

Unfortunately for the rule of law, it’s become far easier to get the Supreme Court to declare that something has always been constitutionally required (such as gay marriage) than to convince enough states to permit it. The same is true of almost any contentious issue, where the initial Supreme Court ruling is unlikely to be overturned by majority rule in the near term. As a result, we’ve turned the court into a vehicle for expressing that the law or policy should be rather than what it is.

The Unfairness of Non-Originalist Interpretation

The death penalty provides a good example of why using the court as a policy tool is ultimately unjust. The death penalty is clearly contemplated in the constitution and has been widely used since 1787. There is no doubt that it was a constitutional penalty when the constitution was adopted. There are, however, judges – like Justice Breyer on the Supreme Court – who believe the death penalty to have become cruel and unusual punishment in violation of the Eight Amendment.

If you believe that the death penalty should be abolished – a position to which I’m sympathetic – then you can follow the example of Nebraska, whose Republican legislature recently abolished the penalty. What you should not do is declare that yesterday the death penalty was constitutional but today it’s not.* That means that two twin brothers committing the same crime a day apart could be punished differently, all without a democratically accountable process by which the people (nominally) decide to change the consequences of a crime. This is, in simple terms, unjust.

*One exception that is often made here is that sometimes the facts on the ground change significantly. I’m not sure how much worse the DEATH penalty could be than we think it is, though, so I’ll ignore that here. A possible application of this rule could be solitary confinement; widely used, but only now are we grasping how destructive it is. If we learn it’s qualitatively different from what we thought it was, then the activity was never knowingly adopted as constitutional, and there may be grounds to interpret the activity as never having been constitutional because of a mistake. This is the sort of loophole that may be stretched beyond all reason, but even I could imagine a fact change so large and severe that I’d be reluctant to wait for the legislative process to catch up to it.

If you’ve read this far, you may have forgotten that this post started with the death of Justice Scalia. The above, in a nutshell, is a simplified and somewhat idealized version of his judicial philosophy. You have probably already seen simplifications and distortions of it online. I hope this explained a little just how common-sensical and intuitive the idea really is.

Idaho Legislators And Their Lust For Goats

A little late to this, but a court has (predictably) struck down Idaho’s First Amendment abomination:

Idaho’s so-called “ag-gag” law, which outlawed undercover investigations of farming operations, is no more. A judge in the federal District Court for Idaho decided Monday that it was unconstitutional, citing First Amendment protections for free speech.

This is obviously the correct decision. The Idaho law not only violated the right to free speech, it was shameless about doing so to protect humans from being punished for infliction violence upon animals. Specifically, the law prohibited journalists or activists from filming inside such facilities where inhumane treatment was likely to occur. I often accuse free speech opponents of f**king goats. I think Idaho’s legislature clearly fits that bill. Otherwise they wouldn’t be so eager to ban the filming of what happens to farm animals.

Book Review: Long Knives

Long Knives, by Charles Rosenberg

Another Kindle first, this novel advertises itself as a legal thriller, though in many ways it’s neither. I was unaware that the book is the second in a series, but I didn’t feel like I had missed much by not reading the first installment – at worst, it makes you think that references to a past trial will play a role when they may not.

Jenna James (and yes, I could not stop thinking of Jenna Jameson) is a former biglaw attorney turned law professor at UCLA who is up for tenure. One morning, a student offers to show her a treasure map, as her specialty now is maritime law, and minutes later the student is dead. The map disappears, and suddenly James is facing a lawsuit for its theft. Meanwhile, the police is looking at her as a suspect in the death of the student. Jenna summons her team – Oscar, a strange man, and Robert, her ex-mentor. There is also a rich but emotionally unavailable boyfriend/colleague, an academic rival, the deceased’s ex-girlfriend, and a nephew with questionable loyalties. Eventually (and it does take a while) the plot gets going. It eventually resolves.

The novel’s prose is in many parts outright maddening, explaining in minute detail very basic activities that turn out to have no effects on the plot. Where a decent writer would have said “I made coffee” Rosenberg says “I opened up my purse and took out a fresh bag of Peet’s dark roast coffee, preground. I took out a measuring spoon and spooned the proper amount of coffee into the cone-shaped permanent filter.” At 497 pages, you can imagine how much of this there is, and how much of it is necessary (none). Rosenberg has an odd habit of interrupting speakers mid-sentence (“Weren’t we discussing,” Oscar said, “who did that?”) in a way that’s jarring.

Not particularly satisfying as a thriller, and definitely not recommended for the prose.

SCOTUS Follow-Up

As predicted, it begins:

Following Friday’s Supreme Court decision, two of Texas’ top officials, Gov. Greg Abbott and state Attorney General Ken Paxton, issued opinions directing state agencies to “respect and preserve Texans’ religious liberties,” in essence encouraging county clerks to refuse to issue licenses to gay couples if it conflicts with their religious beliefs.

While the comments don’t quite say what the USA Today says they mean, let’s assume that some states will permit certain government officials to refuse to perform certain acts on behalf of the government due to their religious objections. How does this shake out?

Practically, it’s easily avoidable. The state has an obligation to comply with the law, so as long as a clerk’s office performs marriage, someone in that office must be available to perform same sex marriages. If that’s the accommodation, that’s fine with me and not particularly intrusive.

The legal question is a bit thornier than it appears. The hypothesized clerk isn’t acting on his own behalf; he’s an agent of the state. The state is obligated to perform this task. By giving the clerk an out (and not providing an immediately available alternative) the state can effectively opt out from complying with the law. That’s ultimately untenable. Further, agents of the government, as a general rule, must be able to perform those actions that the state must perform. It’s an essential requirement of employment. If I had to pick the next legal battle in the culture war, I may well pick a clerk refusing to perform same sex marriages, being fired, and suing for infringement of his religious freedoms under the First Amendment and the various Religious Freedom Restoration Acts.

Commentary on SCOTUS

I’ve mostly ignored the commentary on the Supreme Court’s blockbuster cases the past couple of days (most of it is not interesting, legally speaking) but I suppose I should offer my thoughts, having followed the court more intensely than ever before this term. (I’m serious. My pump-up mix contains the Scalia dissent from Maryland v. King.) I’ll comment in general, though you’ll see a theme.

King v. Burwell (The Obamacare subsidies case)

The outcome was predictable, of course, and I can’t get too worked up about the result. A few million people get subsidies, which is a rounding error for the bloated federal budget, so whatever; it’s not like forcing the Democrats back to the legislative table would have taken us very far. (Yay politics.)

The real disaster, and there’s really no other way to phrase this, is the precedent this sets for the future. It encourages sloppy legislation at the very least, with the understanding that courts will give you a break if you get it wrong. It will probably encourage intentionally vague drafting with the hope that a court will give you more than you could have gotten in the political process. (Lawyers will sometimes leave a contractual provision vague for the same reason. …I hear.) This has been a trend in legislative interpretation for decades, with doctrines of “saving constructions” and “constitutional avoidance” going out of their way to invalidate or otherwise restrict bad laws. (Bond v. US and Canning v. NLRB are recent examples of this.)

Also, on a personal note, I hate the idea that “established by the State” can also refer to things “not established by the State.” Words have meanings. Please stick with them.

Obergefell v. Hodges (The Same Sex Marriage case)

This wasn’t exactly a stunner, since Kennedy has been telegraphing his desire to be the one to address this issue, but I admit I was surprised by the reasoning of his majority opinion. It’s perhaps the least useful opinion written in the last few years, worse than this year’s Elonis v. US (which passed up an easy chance to pick a mental state requirement rather than saying “the lowest one isn’t it.”). While he can count on being quoted at weddings for the next few decades, the opinion offers very little in terms of legal reasoning that can be translated to any other context. Equivocating between Substantive Due Process and the Equal Protection Clause, Kennedy ultimately concludes that the constitution requires all states and territories to recognize same sex marriages mostly because it would be a good thing to do.

In many ways, Obergefell could be similar to Brown v. Board of Education, another important opinion that suffers from the same legal infirmities but has obviously had a tremendous legal impact. (I would argue, however, that all the hard work for Brown had been done by Justice Harlan’s famous dissent in Plessy v. Ferguson, as tremendous a piece of legal writing as you’ll ever see.)

The four dissents don’t offer much in terms of rebuttal, although I imagine they didn’t really bother to. Thomas and Alito do provide a decent constitutional analysis that makes me think this should have gone the other way, but this was not anyone’s finest writing hour.

I should say, I’m very happy about the outcome, and I definitely think it’s the correct social policy. I’ve voted in favor of SSM in all elections I’ve participated in, and I would have liked to see it go national this way, rather than through a very dodgy legal ruling that could undermine the rule of law and trust in the court as an institution. That said, if I were denied a right, I know I couldn’t care less about those other things if the court ruled my way. So this decision is a good thing.

That said, be worried. Burwell and Obergefell have made the Supreme Court more important than ever. Control of the court will become essential, and it’ll make presidential and senate politics even worse than it is now. (Yes, it’s possible.) It opens the doors to constitutional rulings on religious freedom or gun laws, for example, that should have been left to the states and people. In fact, some early analyses wonder if the court’s reasoning in Obergefell translates to the rights under the Second Amendment. Watch for that fight in the near future.

I’ll skip the other decisions of this term, although there have been some interesting ones, but I will note that the court has not impressed with clarity this year. I’d imagine the early October cases next year being tamer than usual to offset the acrimony of the last few weeks.

The Long Run Catches Up With Minnesota

My streak of being right seems to be continuing. In 2013 I disputed Matt Yglesias’s argument that high local taxes are not an obstacle to economic growth, and that cutting taxes is not a good way to attract development to your jurisdiction. Among other things, I argued that a snapshot of laws and development at any given point don’t account for the destructive effects of bad policy over time – a rich jurisdiction will still look good for a while after adopting bad policy, even if the policy destroys opportunity in the long run. I argued that California and New York have bad policies that take advantage of their unique assets like Hollywood and New York City, and said

The counterpoint is Minnesota, a high-wage, high-tax jurisdiction without unique assets. Let’s see how they hold up in the long run.

It seems like the long run has been catching up with Minnesota:

The state has lost residents every year since 2002, with young adults most eager to leave. About 9,300 18- to 24-year-olds move out annually, according to the Minnesota State Demographic Center. …By 2020, the state is forecast to have a shortage of more than 100,000 workers.

It looks like Minnesota’s particular mix of policy is not that great at creating opportunities for its young people. This makes sense: raising taxes or other costs won’t drive all business away (as many have invested in their location and will profit more from staying than moving) but it is much more effective at preventing new business from being created. For example, raising the minimum wage won’t drive your fast food restaurants out of business, but it will give those who would open a restaurant an incentive to go to a lower cost jurisdiction. These opportunities are now being created outside of Minnesota, and the young people know it.

Words Have (Politically Convenient) Meanings, Part 2

This Wednesday, the US Supreme Court heard oral arguments in the case of King v. Burwell, where the court must decide whether the words “Exchanges established by the State under Section 1311” mean “Exchanges established by the State under Section 1311” or not. I’m not going to get into the merits of the case (The Volokh Conspiracy does a fine job) but I will comment on the setup that got us here, and how stupid it is.

The reason that case is before the court, ultimately, is that Congress is just terrible at drafting law, even with two centuries of precedent. It’s not like we don’t know how to write exactly what we want into a law when we want to. Of course, Congress usually doesn’t want to be that clear, to the extent a group can even have a consensus. By saving statutes that are so terribly written – and the Obamacare statute is nonsensical under EITHER interpretation of the phrase above – courts are saving Congress from the consequences of being very bad at what it’s supposed to do.

The proper way for the court to resolve it is to say that Congress meant what it wrote and it needs to deal with that. Of course, politics get in the way – the Republican Congress wouldn’t be kind to Obamacare – but all that would happen if the court gives in is that we get to deal with something like this forevermore.

Words have meanings. Actions should have consequences.

Blog Note/Brain Dump

As you may have noticed, the blog has been very quiet until tonight, when I discovered a coding error and released a bunch of backed up reviews. The reason for the silence is my continued high workload, which is why I stick to reviews (easy) instead of commentary on current events (hard). Before I go back into hiding, scattered thoughts about recent events:

  • I once independently discovered Sam Harris’s question about morality of national governments, which is what they would do if they had the “perfect” weapon that could destroy their enemies. The United States, in my mind, had always done well in that measure, since it could have carpet bombed from Libya to India and never even came close to using its maximum firepower. With the torture report, however, the US can no longer get the benefit of that. The activities in the report are vile, and the fact that slight majorities approve of them are sickening reminders that us vs them is everywhere and always a bad influence.
  • The two grand juries who failed to indict the killers of Michael Brown and especially Eric Garner would not have done the same if the shooters were not cops. I think that’s clear. I also think it’s obvious that a prosecutor who works WITH the police every day shouldn’t also be in charge of investigating that same police. The fact that we let this happen (or that we let the chief of police be in charge of the unit that also investigates police corruption) is a sign that we’ve let a warrior caste arise in our midst that’s now violent and unaccountable, protected by both law and public opinion even at their worst.
  • It’s unfortunate that the fallout from the grand jury decisions has become so racialized, as exemplified here by Smith College president Kathleen McCartney who had to apologize for saying “all lives matter” instead of “black lives matter.” This is not to deny that black Americans suffer more of the consequences of the police state gone wild – they clearly do. The unfortunate aspect is that making race so salient is probably not the best way to effect change; paradoxically, by not emphasizing race one could reach the best outcomes for those discriminated against on racial grounds. By focusing on the universal aspects of police overreach, one could build more public support for reforms, the effects of which would be felt more strongly in those communities currently suffering the worst effects. By making it race-specific, you turn on the us vs them parts of the brain and just don’t reach certain people whose support is necessary for real change. It seems that the black community faces the unfortunate choice of solving the problem or being heard, but not both.
  • One in five American college students does not get raped. You know that if you’ve been near any college, which is not a constant scene of war-crime-level assault. Sexual assault is still too common (“too common” defined as “above zero”) but by emphasizing a wrong figure proponents are doing a disservice to the cause of minimizing the problem, once again by excluding reasonable people whose support is important.
  • Obviously the previous bullet was inspired by the Rolling Stone story that’s since been all but retracted. I think it’s obvious that most part of the story as reported were not true, and the Washington Post has done some excellent reporting on the issue. That said, it’s not like it proves that nothing ever happened to “Jackie.” I don’t have much sympathy for those who file false reports but I can’t help thinking that the best way to describe this young woman is “troubled.” Rolling Stone, of course, has no such excuse, and the Greek organizations suspended on the basis of this story have a legitimate beef with the magazine.
  • Of course we should have normalized relations with Cuba decades ago. Contact means exchange, of goods, services, and ideas. The Chinese are better off for participating in the world, the Vietnamese are, and the Cubans will be, too. As for us, try some Havana Club before you knock freedom.

Anthony Kennedy & Gay Marriage (A Conspiracy Theory)

After the Supreme Court failed to grant cert to any appeals of lower court gay marriage rulings, Justice Kennedy added a twist:

A day after a federal appeals court struck down same-sex marriage bans in Idaho and in Nevada, implementation of the decision in Idaho was temporarily blocked on Wednesday by Justice Anthony M. Kennedy of the Supreme Court.

Justice Kennedy’s order came shortly after Idaho filed a request to the Supreme Court for an immediate stay of the appeals court ruling. The ruling was the latest in a nearly unbroken string of courtroom victories for gay couples. Justice Kennedy asked the proponents of same-sex marriage to file a response by Thursday afternoon.

These requests are pretty routine and as far as I know they haven’t been granted in any other cases except this one in the 9th Circuit by Justice Kennedy. Why might that be?

My guess, and this is based solely from a little bit of court watching, is that Kennedy wants to force the issue of gay marriage to the Supreme Court for a final decision. It’s telling that the gay marriage cases couldn’t gather four votes from either the conservative or the liberal justices. This tells us that neither side thinks it can win. Perhaps the conservatives remember Kennedy siding with gay marriage in Windsor. Perhaps the liberals see no need to take the cases and are content to wait until most, if not all, district courts have made gay marriage the norm. With gay marriage reaching public acceptance in a hurry, there’s little to be gained for them by giving conservatives a chance to set back the effort.

Kennedy is the swing vote here, and he might want to cast that vote and write that opinion while that’s the case. By blocking the implementation, he’s putting a lot of people – California is in the 9th Circuit – on hold while the appeals are resolved. If this drags on, it may spur the court’s liberals to grant cert and handle this once and for all.

Just an idea, of course.