A Preliminary and Barely Data-Based Observation About SCOTUS Polarization

by Michael C. Dorf

Yesterday the Supreme Court handed down two opinions that divided the Court on ideological grounds (although Justice Kagan joined the Republican appointees in one of them). The cases involved immigration--which is often ideologically divisive--and the Freedom of Information Act--which sometimes is. My interest here is not so much in the merits of either case as it is on the evidence for increased polarization that they supply.

Justice Breyer authored the principal dissent in each of yesterday's cases. That's striking. Justice Breyer is not a frequent dissent-writer. The notion that he would write two dissents in one day in two relatively-low-temperature cases suggests something is up. That something, I would suggest, is increased polarization.

Consider (based on data available here) that in the Supreme Court terms from Justice Kagan's addition through Justice Kennedy's retirement, Justice Breyer dissented in, respectively 5, 5, 4, 4, and 3, or an average of just over four cases per Term. By that standard, two in a single day early in the Term is quite a lot. But it's not such an outlier when gauged against the more recent numbers. Since Justice Kennedy's retirement, we see dissents in 6, 7, 10, and 7 cases per Term, for an average of a little over seven cases per Term.

Now in one obvious sense, this is not evidence of increased polarization. Rather, as the Court moved right, Justice Breyer moved from the Court's center-left to its left. Without Justice Kennedy occasionally joining to form a liberal majority in a divisive case, Justice Breyer found himself more frequently in dissent and thus more frequently writing dissents. The trend should accelerate with Justice Barrett's having filled the vacancy created by Justice Ginsburg's death.

I acknowledge that mere median-shifting accounts for much or perhaps all of the increasing frequency of Breyer dissents, but I want to suggest another possibility: Perhaps he has given up on a certain kind of centrism.

Cuomo, Tanden, and Other Embarrassing Allies

by Neil H. Buchanan 

 

The political wheel of fortune has again put Democrats in a position where they have had to decide whether to stand by a few of their compatriots who are difficult to defend, or instead to jettison excess baggage and move on.  After weeks of backing his nomination of Neera Tanden to be his budget director, President Biden ultimately decided that she was not worth the fight.  Meanwhile, whether New York Governor Andrew Cuomo will survive his emerging scandals is currently impossible to predict.

 

Every political scandal is different, of course, yet there is a sameness to the genre.  Even so, there continues to be an enormous difference between the way that Democrats handle their embarrassing colleagues and the way that Republicans bulldoze through their much worse situations.  Are there any lessons here?

Institutional Racism, Affirmative Action, and Judicial Hubris: Part I

 By Eric Segall

The pernicious and negative consequences of centuries of slavery, segregation, and formalized legal racial discrimination are still all around us. As I detailed here, institutional racism pervades our schools, police forces, governmental institutions, neighborhoods, and even our private markets. In my lifetime, just a few blocks from the law school where I teach, a hotel went to the Supreme Court arguing for the right to discriminate against people of color despite a federal statute prohibiting the same. Today, GOP legislatures in well over half the states are trying to deter people of color from voting. Just yesterday, the Court heard oral arguments in such a case. 

Against this backdrop of racism, educational institutions across the country now take account of race when selecting their incoming classes in order to achieve greater educational diversity that benefits people of all races. At the same time, a group called Students for Fair Admissions (SFAA) has been filing lawsuits attempting to prohibit public and private universities from taking race into account at all in their admissions decisions. These suits have challenged the use of affirmative action under the 14th Amendment's Equal Protection Clause as well as a federal statute (Title VI) that bars institutions receiving federal funds (virtually all colleges and universities) from  discriminating on the basis of race.

The Supreme Court will soon have to decide whether it will hear a lawsuit brought by SFAA against Harvard University seeking to end all use of race in university admissions. SFAA lost in the courts below, and last week filed a petition for certiorari seeking to have the Supreme Court reverse those decisions. This case is different from any the Court has heard before because SFAA is alleging racial discrimination against Asians, a traditionally disadvantaged group. But make no mistake, the effects of a ruling that racial considerations are off limits to admissions committees would seriously hurt Blacks and Hispanics and set back the efforts being made by universities nationwide to redress centuries of discrimination against all people of color. SFAA is surely thinking it will find a receptive audience among the six conservative Justices.

I’ll Defend California’s Politics Over Texas’s Any Day

by Neil H. Buchanan

If nothing else, New York Governor Andrew Cuomo's downward spiral should remind everyone that state-level politics can be messy.  As Virginians discovered a few years ago, when the governor, lieutenant governor, and attorney general simultaneously faced assorted scandals, people who look good one day can look bad the next (and sometimes bounce back again later, although I would not bet on that outcome for Cuomo).

Beyond personal scandals, the deeper political structures and cultures in the various states present a different set of questions.  It is not as though states cannot change.  For decades, Maryland was accurately reputed to have an insanely corrupt state government, most famously including former Governor Spiro Agnew's crime-a-palooza that ultimately ended his stint as Richard Nixon's first Vice President.  That reputation no longer fits Maryland today, although there are surely still many problems there.  Illinois has witnessed extensive political problems as well, but there is no guarantee at this point that reforms will take hold there to move it in the right direction.

The two most populous states in the nation present us with a unique comparison.  California has for the past few years solidified its position as the bluest of blue states, whereas Texas -- which has been ruled forever by a deeply conservative political class (first under Southern Democrats, then under converts to the other side like former Senator Phil Gramm, and now under the Trumpiest of Republicans) -- has been the ever-elusive "just about to turn purple and then blue" fantasy of those of us who view demographics as destiny.  Even if Texas ultimately flips, for now its government at all levels is still firmly in the grip of some of the most reactionary conservatives in the United States.

As things currently stand, then, California is run by Democrats and Texas is run by Republicans.  Given that both states have unsolved problems, should we conclude that neither party is capable of solving problems?  No, not at all.  In California, Democrats are trying to solve problems, whereas in Texas, Republicans are denying that problems even exist while doubling down on their own disastrous political agenda.

Federal Judge's Invalidation of the Eviction Moratorium Threatens the Fair Housing Act and More

 by Michael C. Dorf

When I read the headline that a federal district judge had struck down the CDC eviction moratorium, I assumed that the ruling said the moratorium went beyond the authority Congress had delegated to the CDC. I was mistaken. According to the actual ruling of Judge J. Campbell Barker in Terkel v. CDC, even Congress itself lacks the power under the Commerce Clause to enact the moratorium that the CDC adopted by rule.

That decision is not just wrong but potentially dangerously so. As I explain below, its logic threatens federal civil rights legislation. I conclude this essay with a proposal for Congress to circumvent the immediate danger from the moratorium's invalidation. Unfortunately, I do not have a solution to the broader threat to congressional power. 

Rawls at 100: Three Critiques

 by Michael C. Dorf

In an important essay earlier this week, Prof Lawrence Solum marked the occasion of the one hundredth anniversary of the birth of John Rawls and the impending fiftieth anniversary of Rawls's landmark book A Theory of Justice. Prof Solum focuses on the ongoing influence of Rawls, both through his students and otherwise. I recommend it to readers, who might also be interested in an essay I wrote in memory of Rawls on the occasion of his death.

Both Prof Solum and I include some personal recollections. My essay noted that as a student I was lucky enough to study with Rawls--from whom I took a large lecture class on moral and political philosophy, with a heavy focus on the usual suspects: Locke, Hume, Kant, Bentham, Mill, Marx, and then, as I recall, skipping over nearly a century to get to Rawls himself. Rawls was very much interested in counter-arguments, but he did not specifically consider what was then (in the early-to-mid-1980s) widely regarded as the leading challenge to his approach--Robert Nozick's libertarianism as set forth in Anarchy, State, and Utopia. Nozick was a substantially less rigid and more subtle libertarian than the likes of Ayn Rand, and precisely for that reason, any fair-minded attempt to respond to libertarian objections to Rawls's defense of the liberal welfare state should target Nozick's watchman state.

Rawls and those who followed in his footsteps offered responses to the core argument of Anarchy, State, and Utopia, but it's important to understand that even if one thinks those arguments were not successful, it hardly matters for defeating what passes for libertarianism in public debate. On the ground, the sorts of actors who purport to be inspired by libertarian thought either really are relying on Ayn Rand (think of the now-moderate-seeming-by-comparison-to-Trumpers former House Speaker Paul Ryan) or simply using libertarianism as a veneer for crony capitalism (think of Republican elected officials in Texas). Meanwhile, although a fair number of principled libertarians stood against Trump and Trumpism, it is clear that they are no longer a dominant force on the right. The libertarian critique of Rawls remains theoretically significant but not especially significant as a practical matter.

Let us turn then to two other critiques. Each critique can be understood as objecting to the seeming bloodlessness of A Theory of Justice--its claiming to speak from the viewpoint of nowhere, as it were.

Trump's Crimes, and What to Do About Them

by Neil H. Buchanan

 

Donald Trump left office without pardoning himself, surprising many people -- certainly including me.  Or did he actually pardon himself without telling anyone about it (yet)?  Trump's former lawyer Michael Cohen suggested as much shortly after President Biden's inauguration.  Whatever else one thinks about Cohen, he certainly was spot-on when he testified two years ago that Trump would not leave office peacefully.

 

Being right about one thing, however, does not make Cohen a seer.  Did Trump issue a secret "pocket pardon"?  Maybe, but if he did try to pardon himself -- and somehow overcame all of his brazen reality-show instincts by not bragging about it and daring people to stand up to him -- we will not learn about it until either Trump needs an adrenaline rush of news coverage (perhaps at his upcoming CPAC speech?) or he actually is in danger of being indicted for federal crimes and pulls the self-pardon out of his pocket.

Will any federal prosecutor actually try to prosecute Trump?  Had Trump announced a self-pardon on January 19, that would have made federal prosecution both less and more likely.  It would be less likely because any prosecutor would have to take into account the extra hassle and uncertainties of litigating the pardon question as a threshold matter.  It would be more likely, however, because it would give the Justice Department in a post-Trump world a reason to say: "No one can do this."  But as it stands today, the balancing question is between holding an unrepentant serial offender to account and avoiding an inevitably controversial prosecution at a politically volatile time.

That will not be an easy decision, but in the end, federal prosecutors should pursue every case against Trump and his associates that they can win on the merits.  Why is that so clearly the right approach?