Thursday, July 02, 2015

Patel, Privacy, and Abortion

by Sherry F. Colb

In my Verdict column for this week, I examine the case of Los Angeles v. Patel.  In particular, I discuss the significance of the majority's decision to rely on the abortion facial challenges analysis in Planned Parenthood v. Casey to inform its handling of the Fourth Amendment facial challenges question presented by Patel.  In this post, I want to call attention to another interesting parallel between the Court's handling of Fourth Amendment privacy, on the one hand, and abortion, on the other.

When the Supreme Court first ruled that the Constitution protects abortion, in Roe v. Wade, it focused quite a bit on the doctor's role in making the decision whether to terminate a pregnancy. With respect to the first trimester, for example, the Justice said that "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated."

Though the decision in Casey has since supplanted Roe and is (properly) much more focused on the woman (with a concurrence by Justice Blackmun characterizing forced pregnancy as a species of enslavement) rather than the doctor, the oddity of highlighting the doctor in Roe itself is still noteworthy.  It essentially looks to the provider of services that constitute the right to privacy as the holder of that right itself.

This odd formulation appears in Patel as well, though for different reasons.  In Patel, it is the people who operate hotels who come to the U.S. Supreme Court asserting a right to privacy in the personal information about their guests kept in the hotel registries.  There is no discussion in Patel of the privacy rights of the hotel guests themselves, who are presumably going to be the most concerned about government snooping into private, identifying information about guests contained in the registries.  Yet the Supreme Court does find that hotel operators have a Fourth Amendment privacy right in the information contained in those registries (because the registries are the hotel's property) and ultimately finds as well that the challenged statute is facially invalid under the Fourth Amendment.

In Roe, the emphasis on doctors likely reflects Justice Blackmun's tremendous respect for physicians acquired from his own experience serving as general counsel to the Mayo Clinic in Rochester for nine years.  In Patel, by contrast, the Court does not exhibit any special respect or affection for hotel operators.  Instead, the people bringing the case are hotel operators, and their customers cannot join them in their suit because of the third-party doctrine, elaborated in detail in this column.  Briefly, the third-party doctrine holds that (often, though not always), a private person's handing over information to another private person or entity (such as a bank or a telephone company) constitutes a relinquishment of any Fourth Amendment right to privacy from governmental surveillance of that information.  In a fascinating article entitled Fourth Amendment Fiduciaries, to be published in the Fordham Law Review, Kiel Robert Brennan-Marquez argues that not only is this doctrine wrong, but private parties to whom personal information has been entrusted should sometimes themselves be barred by the Fourth Amendment from sharing such entrusted information with the government, even without governmental initiation. 

In one sense, it is quite understandable that providers of privacy would often be best situated to litigate the rights of those to whom privacy is provided.  In Griswold v. Connecticut, the providers of contraception had prudential standing to challenge laws prohibiting contraceptive use, and they were able to litigate strongly, without embarrassment, to protect both their business interests and their customers' privacy interests.  Hotel guests and women who seek abortions likewise rely on hotel operators and abortion providers, respectively, to offer them a safe haven and provide the services they need, so it may not be surprising to find the same providers litigating on their behalf when the time comes.  It is unfortunate, though, to have the law ignore the underlying privacy interests or vest them entirely in their providers, given whose interests are most squarely implicated.  And Brennan-Marquez makes an important contribution in arguing that the privacy interests are not truly safe from the government unless the law recognizes a further obligation on the part of the providers to respect their customers' privacy enough to hold it sacred, regardless of whether the government is seeking its exposure or not.  Needless to say, Brennan-Marquez deals with the obvious "state action" objection to his position.  I recommend that people read his article.

Wednesday, July 01, 2015

Why Justice Scalia Should Seriously Consider Retiring

by Eric Segall

Justice Scalia is 79 years old and has served on the bench for almost 30 years. In 1995, I wrote an article in part defending his rules-oriented jurisprudence from what I thought were unfair attacks from Professor Laurence Tribe and a budding young scholar named Mike Dorf. But that was then. Now, Justice Scalia has betrayed his own principles, and acted so inappropriately so often, that he should seriously consider retiring from the bench. His own legacy, and the good of the country, are both very much at stake.

As far as his votes and written opinions are concerned, this term alone shows how Justice Scalia has veered far away from any reasonable level of internal consistency. His dissent in the same-sex marriage case was full of wild accusations that the Justices in the majority were failing to act as proper judges by invalidating state laws prohibiting same-sex marriage. For example, he lamented the “practice of constitutional revision by an unelected committee of nine,” and said that any “system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” As I’ll discuss later, he also leveled quite personal attacks at Justice Kennedy. 

There were many more statements in the opinion charging that the majority was improperly substituting its views of the law for those of the people of the fifty states. This call for judicial deference, however, is completely inconsistent with numerous other Justice Scalia votes and written opinions this term. In fact, he voted to strike down so many important laws that he should be embarrassed by his stridency in his same-sex marriage dissent.

Earlier this term, Chief Justice Roberts sided with the liberals in a 5-4 decision upholding Florida’s very modest regulation of judicial campaigns. Scalia’s dissent alleged that Roberts’ decision “flattens one settled First Amendment principle after another,” and “was more than one should have to bear.” In other words, Scalia would have struck down the state law trying to place just a few reasonable restrictions on the coercive nature of judicial requests for campaign money.

Although he didn’t write separately, Justice Scalia also voted with Justice Alito to reverse Texas’ decision refusing to issue a special Confederate flag license plate. Neither of these two first amendment cases involved state laws that clearly violated the text or history of the Constitution, yet Justice Scalia in both cases would have reversed the decisions of the people.

Perhaps even more strangely (and inconsistently), Justice Scalia wrote a scathing dissent when the Court upheld by a 5-4 vote a ballot initiative in Arizona that created a bi-partisan redistricting commission. This case involved a decision by the people of Arizona on a core issue of democratic self-government (the people were tired of partisan posturing when it came to the vital task of dividing the state into voting districts). Yet, once again Justice Scalia would have reversed the decision of the people and replaced it with his own.

Although Scalia stated that there was no proper jurisdiction over the case, he also wrote that the majority’s “resolution of the merits … is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.” In reality, Chief Justice Robert’s dissent was only “devastating” to those Justices willing to freely replace the decision of the people of Arizona with the decision “of an unelected committee of nine,” on an issue where the constitutional text was in fact ambiguous, its history contestable, and the prior case law on point mixed.

In previous terms, Justice Scalia has voted to invalidate affirmative action plans by local school districts (parents, teachers and board members acting together in true democratic fashion). He also has voted to strike down virtually all campaign finance reform laws as well as the key section of the Voting Rights Act that was re-enacted by a unanimous Senate, an overwhelming majority in the House, and signed by President George W. Bush. In none of these cases were the text and history of the relevant constitutional provisions clear.
Justice Scalia’s excessive rhetoric in the same-sex marriage decision about “unelected lawyers” and “commissions of nine people” rings more than hollow given Scalia’s frequent votes to overturn other important decisions by federal, state, and local legislative bodies. His accusations are in fact hypocritical to the core.

Just being wildly inconsistent, however, is no reason for a Supreme Court Justice to resign. In addition to his voting record, Justice Scalia has leveled such personal attacks at other Justices that he is becoming, if he has not already become, a caricature of the bitter old man despondent about the “good old days.” Although I could write an entire law review article just detailing Scalia’s improper personal insults, it is enough to simply quote from his same-sex marriage dissent: “If, even as the price to be paid for a fifth vote, I ever joined an opinion or the Court that began [quoting Justice Kennedy’s majority opinion], I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Not only is this an unduly harsh attack on the Justices in the majority, but the suggestion that one or more of the Justices had to pay a “price” for Justice Kennedy’s vote is an irresponsible airing of the Court’s dirty laundry. He also said that the “opinion is couched in a style that is as pretentious as its content is egotistic.” Those charges, that the prose was “pretentious” and the writer “egotistic” have nothing to do with proper application of law to facts and everything to do with personality. They are unbecoming of a Supreme Court Justice.

Justice Scalia has also acted in ways that make it reasonable to think that he has lost the ability to responsibly perform his job. On Monday, he took the unusual step in a death penalty case of summarizing a concurring opinion from the bench. Not only is this rare, but he also again chastised the Justices who voted to overturn the same-sex marriage bans and, according to Dahlia Lithwick who was in the courtroom, acted in “weird” and “odd” ways by going back and forth between the death penalty case at issue and the same-sex marriage decision of the week before. This behavior led noted law professor Rick Hasen to ask “Is Scalia losing it?”

He has also made a few mistakes recently that suggest he may not be quite as careful as he used to be. In an opinion on environmental law, he badly misstated the holding of a previous case that he himself had written, leading law professor Dan Farber to call it a "cringe worthy blunder." The opinion had to be changed. And, in Atlanta, not too long after the Court struck down the formula in the Voting Rights Act, Justice Scalia could not remember a vital part of the rationale for that historic decision.

There was a time when Justice Scalia was a commanding influence on the Court, urging upon the other Justices an originalist methodology, a rule-like approach to judging, and only occasionally using his nuclear powered pen to detonate personal insults at the other Justices. But, with each passing term, his votes, his rhetoric and even his behavior are eating away at that legacy. Other Justices, such as Thurgood Marshall and William Douglas, stayed on way too long and Justice Scalia is in danger of making the same mistake. He should retire before it is too late.

Republicans Can Now Return to Their Other Unpopular Positions

by Neil H. Buchanan

The news from the Supreme Court late last week was truly historic.  The Affordable Care Act was saved from a silly lawsuit, and Justice Kennedy penned a genuinely moving affirmation of marriage equality.  Anyone who missed Professor Dorf's posts over the last few days is hereby instructed to go back and read all of them -- as well as Professor Segall's post on Friday.  I can add little to their legal analysis, and I am not inclined to try.  Before I get to the main point of today's post, however, I will offer a personal reaction.

Long-time readers of Dorf on Law know that I have a deep personal connection to the issue of gay marriage, which I wrote about here in 2011 (after New York State's legislature approved its marriage equality law) and in 2012 (after President Obama announced his support of gay marriage).  It brings me to tears when I think about what last week's ruling would have meant to my brother and the man who was the love of his life.  Chief Justice Roberts tried to soften his hardhearted and legally specious dissent by inviting people who favor marriage equality to celebrate, and I'm happy to oblige.  This is bittersweet, but it is moving beyond words.

With that said, I will devote the remainder of today's post to discussing a rather puzzling political discussion that immediately emerged after last week's two big Supreme Court cases were announced.  (The side discussion about Justice Scalia's continuing efforts to destroy what remains of his reputation is interesting, too, but beside the point here.  Fortunately, Professor Segall will take up that issue in a post later today.)  Specifically, the discussion centered on whether the two cases have made life easier for the Republican Party going forward, and if so, how.

Certainly, I was among the people who viewed the outcome of the ACA case (King v. Burwell) as a gift to the Republicans.  My thought was that the Republican leadership foresaw what a disaster it would have been to enter an election season having championed a nakedly political lawsuit that had created havoc in the health care system.  And because the Republicans had not been able to come up with serious alternatives to the ACA, short-term or long-term, the party would be better off losing the case.

Even if the five conservatives on the Court do not receive marching orders from their friends in the party, they could certainly figure out what would be good for the conservative movement.  In fact, the stakes for the Republicans were so obvious that I imagined in advance that the case might have been decided by an 8-1 vote, with even Scalia and Alito seeing the case as a free vote and taking the opportunity to try to say, "See?  We're not as politically hackish as we seem."

Because of those considerations, I could not imagine King going the wrong way.  The surprise, then, was that only Kennedy and Roberts voted to uphold the subsidies.  (Roberts was, of course, immediately praised by those who somehow think it important to describe easy and obvious votes as evidence of moderation and reasonableness.)  It was equally obvious, for reasons both political and practical, that Obergefell v. Hodges was going to come out the right way.  The 5-4 split there was predictable, with only the manifest weakness of the various dissents being the surprise.  (Again, once the outcome was known inside the court, one could have imagined the Chief trying to win additional plaudits by switching sides, but apparently he could not bring himself to do so.)

It seems clearly correct, therefore, to say that the outcomes of the two cases could be viewed as both foregone conclusions and a matter of saving the Republicans from themselves, because it will allow them finally to put the pointless bashing of the ACA behind them, and to stop turning off younger voters with their anti-gay policies and rhetoric.  Even though the Republican presidential candidates have thus far managed to respond to Obergefell in a way that probably makes matters worse, it is at least possible that the party could benefit by slowly allowing all of that to fall by the wayside.

The question is, however, what comes next.  One argument went so far as to say that the post-King-post-Obergefell political environment will actually be friendly to Republicans.  An article in The New York Times on Saturday quoted conservative apostate David Frum: "Every once in a while, we bring down the curtain on the politics of a prior era.  The stage is now cleared for the next generation of issues. And Republicans can say, ‘Whether you’re gay, black or a recent migrant to our country, we are going to welcome you as a fully cherished member of our coalition.’ ”

As I once noted on this blog, Frum was effectively drummed out of the conservative movement a few years ago, because he complained that the Republicans have become the handmaidens of Fox News.  Despite his current lack of standing among conservatives, however, his point was that one can be a good conservative without being a gay-baiting, racist, immigrant-bashing neanderthal.  I am not actually sure that he is right about that, but he seems to believe it to be true, and he seems to believe it in good faith.

The initial problem with that formulation of the newly promising path forward for Republicans, however, is that the two big cases last week at the Supreme Court had nothing to do with race (in any obvious way) or immigration.  It is true that the recent horrific murders by a white supremacist in Charleston have led to what appears to be progress, with large numbers of Republicans finally distancing themselves from the most racist elements of their political base.  That will help them, if it lasts, but it will not change any of the other obvious ways in which the party has become the last refuge of angry old white men.

Certainly, nothing that we have seen recently would give us any reason to think that the Republicans (most definitely including their presidential candidates) will change their views on immigration.  If anything, the culture war dead-enders might intensify their litmus tests on immigration questions.

Beyond that, what about the issues that still make conservatives like Frum conservative?  On economic policy, the party is absolutely on the wrong side of the inequality debate, both as a political issue and as an economic policy matter.  National trends regarding minimum wages have become a tidal wave in liberals' favor, and there is now a great deal of room within mainstream political discussions to advance progressive tax proposals.  Republicans will surely continue to cry "class warfare," but that is by this point pretty old and weak.

Similarly, Republicans efforts to try to advance anti-Social Security rhetoric, in an attempt to appeal to younger voters, have been singularly ineffective.  Beyond the silly stuff, like Jeb Bush's confused suggestion to increase the retirement age, the entire party's obsession with viewing all government programs as undeserved handouts continually fails to hoodwink its intended audience.

The evidence suggests that a domestic policy platform that amounts to putting lipstick on regressive, trickle-down tax and spending policies, combined with efforts to undermine the middle class's safety nets and to gut environmental and other regulations, is simply not a promising electoral strategy.  It is very popular with the Chamber of Commerce crowd, and with the Rand Paul mini-slice of the electorate, but it turns off the people who determine the outcomes of national elections.

I am not saying this because I find the policies objectionable on substantive grounds, although I do.  It is possible to see when bad policies are politically successful.  I am keenly aware that, for example, Ronald Reagan had the ability to persuade people to support bad policies, even though I was utterly unable to see the supposed Reagan charm that worked so well on others.  Heck, I can even see why a Times article today said that New Jersey Governor Chris Christie "must build a [presidential] campaign around his most raw and prodigious asset: his personality."  Although I personally cannot fathom why his personality is not an enormous liability in everyone's eyes, there is no denying that many people have found him compelling.  He is a terrible candidate in a lot of ways, but anyone can see that some of what he does connects with a surprisingly sizable number of voters.  (Or at least, it used to.)

The point, then, is that describing the Republicans' economic policy positions as losers is, in this context, not exclusively an assessment of how the policies would work if enacted.  As a matter of pure political strategy -- "What are you gonna run on now?" -- economic policy is a liability for Republicans, a liability that can be turned into an asset only to the extent that the Republicans can dress it up as something else.  See, for example, their efforts to recycle dependency theory to justify the harshness of their budget cuts, supposedly to help the idle poor feel more inclined to get off the dole.  That is bogus, and it really does not sell beyond the party's base, but it is the only arrow left in the Republicans' quiver.

And Republicans can continue to try to run against the weak "Obama economy."  That might have some traction, because the incumbent party always carries the baggage of a relatively weak economy.  But Obama is not running in 2016, and the Democratic nominee will at least be on solid ground in describing why this is a "McConnell/Boehner economy" as much as anything else.  The best attacks on Obama's economic record would be based on his having been too much of a believer in center-right policies, but no Republican will take that line of attack.

If the domestic side of the political debate is stacked against Republicans, what about foreign affairs?  Again, the Republicans can simply blame every bad thing that has happened in the world on Obama.  That always works, up to a point, in foreign affairs as much as in domestic affairs.  But what will Republicans actually propose?  Invading Iran?  Another surge in Iraq?  Selling arms to Assad in Syria?  Trying to close the mine shaft gap and threatening Premier Kissoff in Russia?  (Sorry, I just watched "Dr. Strangelove" again last night.)

It is worth remembering that the culture war issues that the Republicans are now supposed to be relieved to abandon were themselves viewed as lifelines to a party that had no other way to connect with voters.  Now-Senator Al Franken's devastatingly accurate description of the 2004 Bush reelection campaign as having been based on "fear, smears, and queers" should remind us that an incumbent Republican president barely won reelection during wartime, and he did so only by deploying culture war strategies to draw voters to the polls in swing states like Ohio, where Republicans had put an anti-gay marriage initiative on the ballot, to draw more conservative voters to the polls.

This is not to say that the economic and foreign policy issues described here are not less bad for Republicans than continuing to focus on gay marriage and health care would be.  In that sense, again, it surely is correct to say that the party was given a reprieve by the Court last week.  The idea that they can now go back to their strengths, however, is fatuous.  Culture war issues were their strength, and their more traditional economic and foreign policy views were dragging the party down.  If anything, moreover, the party has moved further away from the mainstream on those issues during the Obama years.

Does that mean that the Republicans are going to be crushed at the polls in 2016 and thereafter?  Maybe, but I am not predicting as much.  There might still be ways, in a highly degraded political environment driven by huge pools of dark money, to overcome these policy weaknesses and sell enough people on the idea that the party deserves another chance in the White House.  But the idea cannot possibly be: "Oh boy, now we get to go back to what works!"  It has to be: "We had a good run with the wedge issues, but that's over.  Now we need to figure out how to sell our same-old-same-old, and that stuff was never very popular in the first place."

Tuesday, June 30, 2015

No Matter What They Take From Me

by Michael Dorf

My latest Verdict column describes the various forms that resistance to the Supreme Court's same-sex marriage ruling is likely to take. I'll let the column speak for itself on that subject because a landmark case often raises many issues. Accordingly, in this post I'll address an issue raised by Justice Thomas's dissent--one I did not discuss in my prior critique of the dissents in Obergefell.

Responding to Justice Kennedy's repeated invocation of the petitioners' right to equal dignity, Justice Thomas writes in dissent:
Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity. 
Human dignity has long been understood in this country to be innate.  . . . The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
Let's take this one step at a time.

Justice Thomas is of course correct that the Constitution contains no dignity Clause but he appears to have forgotten that he previously joined opinions stating that failure to respect the sovereign immunity of the states is inconsistent with their dignity. Indeed, he authored one such opinion--Federal Maritime Comm'n v. South Carolina Ports Authority--that begins its substantive analysis with the following: "The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." His opinion invokes "dignity" or condemns "indignity" seven times.

Wait, what? Not only is there no "dignity" Clause that protects states; there isn't even a state sovereign immunity Clause. True, there is an Eleventh Amendment that, by its terms, denies federal courts (not administrative agencies as in FMC v. SCPA) the power to hear suits by citizens of one state against another state, but the Court, in opinions enthusiastically joined or authored by Justice Thomas, has not relied on the Eleventh Amendment as the basis of the broad principle of sovereign immunity that it finds in the Constitution, and sensibly not, given the Court's willingness to find sovereign immunity for states sued by their own citizens. The dignity of the states is a judicial construct used to explain a judicial doctrine that implements a value that is not expressly found in any constitutional text.

To be clear, I think that in principle these sorts of inferences can be justified but Justice Thomas--when denying rights to people who aren't wielding guns--thinks that they're just so much jiggery pokery.  Justice Thomas thinks it's his judicial duty to infer a constitutional command to protect the dignity of states but that finding protection for the dignity of natural persons in the Due Process Clause and Equal Protection Clauses is, in his view, judicial usurpation.

What's more, apparently dignity functions very differently for states and natural persons. As the sovereign immunity cases make clear, Justice Thomas thinks that the dignity of states must be protected by judicially enforceable rules. By contrast, the dignity of persons is inherent and can survive any--shall we say--indignity. Thus judicially enforceable rules to protect personal dignity are foolish or worse.

But why? In FMC v. SCPA Justice Thomas writes as though he thinks that, like natural persons, states pre-exist the federal government, and indeed, elsewhere he has said exactly that. If both states and natural persons have inherent dignity, as Justice Thomas thinks, and if states are therefore entitled to judicial protection against actions by the government that are inconsistent with that dignity, why aren't individuals also entitled to such protection?

In light of his views about states, Justice Thomas is hypocritical to criticize dignity of persons for its atextuality. But at least that would be a coherent argument coming from someone else. Justice Thomas's conceptual claim that rights can't protect dignity because dignity is inherent is just a mess.

The very first substantive provision of the German Constitution protects human dignity. The Preamble to the Canadian Bill of Rights invokes "the dignity and worth of the human person" in its first sentence.  Israel lacks a full-blown constitution but one of its very few basic laws protects, you guessed it, human dignity. The Universal Declaration of Human Rights, which serves as a model for national bills of rights throughout the world, repeatedly invokes dignity as a value for interpreting other rights and as an interest to be protected. These documents all treat human dignity as inherent but nonetheless entitled to protection. Does Justice Thomas think that these and other documents--and the global jurisprudence they have spawned protecting dignity--all rest on a conceptual error?

Moreover, Justice Thomas's examples make no sense on their own terms. Let's grant that nothing the government does can rob a person of his dignity. It surely does not follow that the government should be allowed to act in ways that rest on the premise that a person lacks dignity--as by enslaving or interning that person in a camp. What could Justice Thomas possibly mean by citing these examples? That slavery and internment of Japanese Americans during World War II were unproblematic because the enslaved and the imprisoned retained their dignity?

If Justice Thomas wants to say that denying a class of historically disadvantaged people the right to marry treats them as persons with full dignity, he should say that. If he wants to say that gays and lesbians don't deserve to be treated as persons with dignity, he should say that. The first statement would be self-evidently wrong and the second would be monstrous, but at least we would know what point he was trying to make.

Reading Justice Thomas extremely charitably, I suppose he might be trying to say that the concept of dignity doesn't aid in the functional analysis, because to know whether denial of some freedom is consistent with dignity, then one must have some account of the value (or if one is more historically minded, the historical manifestations) of the particular freedom. I think I could even agree with that claim (but not the prior parenthetical alternative), at least in the American context, where we lack a fully developed set of sub-concepts to implement the notion of dignity.

But that would, as I said, be an extremely charitable reading.

Monday, June 29, 2015

Evolving Standards of Decency That Mark the Progress of Maturing Justices

by Michael Dorf

In 1972, when the Supreme Court invalidated the then-extant death penalty statutes in Furman v. Georgia, only two Justices--Brennan and Marshall--concluded that the death penalty is unconstitutional under all circumstances. The balance of the Court set forth criteria that would need to be satisfied for states to carry out executions and, four years later in Gregg v. Georgia and its companion cases, the Court largely upheld the state responses. Although Justices Brennan and Marshall were often joined by other Justices in accepting claims that the death penalty was unconstitutional in particular circumstances, for a long time they were the only Justices to express the view that the death penalty is invalid in all circumstances.

Justices Powell, Blackmun, and Stevens eventually changed their mind, but too late to do much good for death-sentenced petitioners. Powell told his biographer that he thought the death penalty invalid in all cases, but only after he retired from the Court. Blackmun stirringly announced: "From this day forward, I no longer shall tinker with the machinery of death." But the announcement came just months before he retired. And Justice Stevens voted to uphold a death sentence in Baze v. Rees, even as he explained that he had come to the conclusion that the death penalty itself is categorically unconstitutional, a position he has reaffirmed in retirement.

As Justice Scalia says in his concurrence today in Glossip v. Gross "Welcome to Groundhog Day." Justice Scalia says that in response to what he regards as tired and unpersuasive arguments against the death penalty. I disagree with his characterization of those arguments but he is right that the case has an element of deja vu about it. Once again, Justices conclude after a long career of applying the Court's death penalty precedents that it's time to give up and declare the whole thing unconstitutional. Here is the takeaway from Justice Breyer, joined by Justice Ginsburg:
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.
Justices Scalia and Thomas, in separate concurrences each joined by the other, fight back. Here I'll bracket the disagreement over specifics to note the broader phenomenon. We now have five Justices who started out accepting that at least some death sentences could be imposed consistent with the Constitution but eventually concluded that none could. This is a phenomenon worth studying.

Much has been written, including by me, about the evolution of some Republican appointees from conservative to liberal. Given his votes this Term (in particular in the Fair Housing Act CaseKing v. Burwell, Obergefell v. Hodges, and the Arizona Redistricting Case), much ink will likely be spilled in the coming months about Justice Kennedy's liberal turn--although such discussion may well prove quite premature. Justice Kennedy was in the majority today in Glossip and in Michigan v. EPA.  And the Court granted cert again today in Fisher v. University of Texas. I'm guessing it's not because a majority of the Court wants to write an opinion congratulating the Fifth Circuit on its handling of the remand.

Some of the death penalty evolution of particular Justices could perhaps be fit into a broader frame of conservatives gone liberal. Certainly Justices Blackmun and Stevens became more liberal over time, and arguably Powell did as well. But in each case, the general turn to the left long preceded the conclusion that the death penalty is unconstitutional under all circumstances. And the narrative doesn't work at all for Justices Ginsburg and Breyer, Democratic appointees who were never conservative. But they too applied the death penalty precedents (albeit quite liberally) for many years before deciding that the game was not worth the candle.

For now, I don't have a strong hypothesis about what explains this phenomenon of late-in-career or post-retirement conversion on the death penalty but I do think it is a distinct phenomenon. Perhaps--and I acknowledge that this is highly speculative--as a Justice comes closer to facing his or her own mortality it becomes especially difficult to continue to participate in an institution that prematurely ends the lives of others, even if those others have committed truly heinous acts.

Saturday, June 27, 2015

In Defense of Justice Kennedy's Soaring Rhetoric in Obergefell

by Michael Dorf (cross-posted on SCOTUSblog)

In the nature of split decisions, the majority opinion makes an affirmative argument and the dissent criticizes that argument, with the majority responding, if at all, in footnotes and other asides. That pattern holds in Obergefell v. Hodges. In sometimes-soaring language, Justice Anthony Kennedy’s opinion barely addresses the pointed and occasionally nasty critique leveled in four separate dissents, perhaps leaving the impression that nothing can be said in response.

That impression is false. None of the points made by the dissenters withstands critical scrutiny – not least the claim that because marriage originated as an institution to address accidental procreation by heterosexuals, a state has a rational (much less compelling) interest in forbidding gay and lesbian couples from participating in the modern institution of marriage.

Still less persuasive is the dissenters’ repeated insistence that this case differs from prior marriage cases because those cases did not involve the definition of marriage. To quote Justice Antonin Scalia’s acerbic dissent, “Huh?” Would the eight Justices who signed onto the fundamental rights portion of Loving v. Virginia have reached a different conclusion if the Virginia statute defined marriage as an institution between a man and a woman of the same race?

Chief Justice John Roberts, in the principal dissent, sets forth the most elaborate argument, but fundamentally he makes three points: (1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. Beyond that, his dissent repeatedly compares the ruling to Lochner v. New York, citing the case a whopping sixteen times.

Nearly all of what the Chief Justice says would work equally well as an argument against all unenumerated rights, indeed, against all judicial decisions that draw inferences from vague language contained in enumerated rights as well. The other dissents do not fare better.

Justice Clarence Thomas (joined by Justice Scalia) is more succinct but also more radical than the Chief. He rejects substantive due process in its entirety, but then, citing Founding Era and earlier texts, provides two fallbacks. To the extent that Justice Thomas would allow any substantive due process it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone. Recognizing that, taken at face value, his view would require overruling Loving (in its fundamental rights aspect), Zablocki v. Redhail, and Turner v. Safley, he elevates the happenstance that those cases involved criminal prohibitions into central features, concluding that “in none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.” (Emphasis in original.) Thus, two Justices of the Supreme Court apparently believe that, consistent with the Constitution, a state could forbid, say, people (even of the opposite sex) over the age of fifty from marrying.

Justice Samuel Alito (joined by Justices Scalia and Thomas) is chiefly concerned about people who oppose same-sex marriage on religious grounds. Will they now be required to participate in same-sex marriages? The short answer is no. As Justice Elena Kagan noted during the oral argument, even to Justice Scalia’s evident satisfaction at the time, clergy who solemnize marriages have long been given the freedom to decide which ceremonies at which to officiate based on criteria that would be constitutionally problematic in other contexts. As for others – such as religiously scrupled bakers and florists – absent (much-needed) legislation, the state action doctrine permits them the freedom to discriminate against same-sex couples.

And then there is Justice Scalia, who professes to worry about the ruling’s implications for democracy but seems more irked by Justice Kennedy’s prose style. In perhaps the most intemperate line in the U.S. Reports, Justice Scalia mocks the opening line of the majority opinion: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Justice Scalia replies: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” in this way, “I would hide my head in a bag.” This from a Justice who – just in cases that are centrally relevant to the issue in Obergefell – once began a dissent by accusing the Court of mistaking “a Kulturkampf for a fit of spite” (as though Prussian anti-Catholic policies were an appropriate model for Colorado’s treatment of its gay and lesbian minority), in another dissent compared same-sex intimacy to bestiality, and in a futile effort to read Loving as having nothing to do with evolving values, invented his very own inaccurate text of the Fourteenth Amendment.

Forget about the bag. Justice Scalia should not appear in public except in a full burka.

What bothers Justice Scalia and, to a somewhat lesser extent, his fellow dissenters, about Justice Kennedy’s soaring rhetoric? In prior gay rights cases, they have, with some justification, complained that the majority was unclear about how its holding fit with conventional constitutional doctrine, but there is little cause for complaint on that score in Obergefell. Justice Kennedy says with admirable clarity that marriage is a fundamental right and that the state has not offered a sufficient justification for denying it to same-sex couples.

Both Chief Justice Roberts and Justice Scalia are puzzled by Justice Kennedy’s invocation of “synergy” between the Equal Protection and Due Process Clauses, but they ought not be. Especially not Justice Scalia, whose opinion in Employment Division v. Smith explained away prior cases that obviously contradicted the rule he announced there by describing them as resting on a “hybrid” of free exercise and other rights (including substantive due process!). Viewed from the window of Justice Scalia’s glass house, “synergy” is argle bargle but “hybrids” rest on a firm constitutional foundation.

Were the dissenters more interested in understanding than ridiculing the majority opinion, they would see that equal protection considerations help explain why a right to same-sex marriage does not necessarily open the door to polygamy, adult incest, and the other supposed horribles in their gay shame parade. With a few notable exceptions, for thousands of years people have been stigmatized, beaten, and killed for the sin of loving someone of the same sex. The dissenters regard this shameful history only as the basis for continued denial of constitutional rights. The majority, by contrast, sees in this history of subordination a special reason to be skeptical of the reasons advanced for excluding same-sex couples from the institution of marriage.

Justice Kennedy writes: “Especially against a long history of disapproval of their relationships, th[e] denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” It really is that simple.

Is it possible that some day we as a society will come to regard plural marriage in the same way? Sure. Just as a social and political movement led a Court whose Chief Justice once dismissed the idea of an individual right to bear arms as a “fraud” to change its mind about that constitutional right (as Reva Siegel has argued persuasively), so too a social and political movement for plural marriage could likewise succeed and if it does, the Court will follow suit.

Indeed, notwithstanding their citations of Magna Carta and The Federalist, even the dissenters appear to be evolving when it comes to gay rights. For all of his fulminating, at least Justice Scalia is no longer comparing gay sex to bestiality. Meanwhile, the Chief Justice was gracious in inviting the victors to celebrate their victory.

That is also precisely what Justice Kennedy was doing in a prose style that sometimes bordered on poetry. And as numerous pictures of celebrations around the country illustrate, it worked.

My gay and lesbian friends have no illusions that Obergefell marks the end of what one with whom I partied at a gay pride event in Brooklyn last night called their “liberation struggle.” We still need a federal antidiscrimination law. And as importantly, hearts and minds must continue to be won over.

But the Chief Justice is wrong in suggesting that only elections will do the trick. For better or worse, in the U.S., courts play a vital role in a complicated dance involving grass-roots activists, political organizers, elected officials, and ordinary citizens. Much work remains to be done with each of these constituencies but for now we can pause to celebrate a hard-won victory. Justice Kennedy’s opinion fittingly solemnized the occasion.

Friday, June 26, 2015

The Link Between Liberty and Equality in Obergefell

by Michael Dorf

Justice Kennedy's opinion in Obergefell v. Hodges is a tour-de-force. I shall have a LOT to say about it--and about the dissents--over the course of the next week, but for now I will confine myself to two observations.

First, in relying on both due process liberty and equal protection, Justice Kennedy undercut the familiar but often false notion that liberty and equality are enemies or even always in tension, with egalitarian ideals coming at the cost of libertarian ones. Through carefully chosen examples he shows how attention to equality informs understandings of the proper scope of liberty. (I would be untrue to my nature if I didn't add that this was precisely the argument that Professor Tribe and I set forth in our amicus brief in the case, although I am also confident that Justice Kennedy would have reached the same conclusions absent our brief.)

Second, although there has been much discussion in the news lately about the longstanding roots of Justice Kennedy's absence of animus for gay people, it's also fair to say that the process of evolution that he describes the nation undergoing over the last four decades was also a personal process. I think it a fair bet that as recently as 2003, when he authored Lawrence v. Texas, Justice Kennedy did not think (as Justice Scalia warned and as the Massachusetts Supreme Judicial Court would soon say) that the opinion entailed a right to same-sex marriage. Even Justice Ginsburg appeared to be talking about caution as recently as a few years ago. But Justice Kennedy and the rest of the majority learned the same lessons as the rest of the country.

I'm traveling today (to a vegan gay pride kickoff!) and so won't weigh in some more for at least a little while, but I'll conclude by saying that on days like today I am very proud to be a former law clerk of Justice Kennedy.

The "Umpire-in-Chief?" Not Yesterday, Today, or Tomorrow

by Eric Segall

Chief Justice Roberts’ opinion for six Justices in yesterday’s huge Obamacare decision King v. Burwell was important, well-written and persuasive, but it still doesn’t make him the “Umpire-in-Chief.”

If you are reading this blog, then you probably remember that during his confirmation hearings John Roberts said the following: “Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

In addition to the fact that only those who are very well-connected to the Court, or are willing to stand in long lines in Washington, D.C., get to actually “see” the Supreme Court, this analogy between Justices and umpires is wildly misleading. As many have pointed out before me, the Justices of the Supreme Court often do make up the rules of the game. Asking them to interpret what “due process” or “equal protection” or “establishment” means is virtually the same thing as asking them to decide what is fair, what is equal, and where is the boundary between church and state, in other words, the “rules.” And, the Justices’ decisions on these kinds of rules are virtually unreviewable, as only a constitutional amendment can change them, and that just about never happens.

Yesterday’s King v. Burwell is a bit different, but just a bit. When the Court is called upon to resolve a dispute involving the meaning of a federal statute, Congress can overturn that decision by passing a new law. This actually happens from time to time but does that make the Justices more like umpires? Of course not, and King v. Burwell makes that point dramatically.

Even though I wrote here and here and here that the law governing the case was clear, and if law mattered the plaintiffs had to lose, the truth is that the Court could have gone either way in the case because the Justices have that much discretion. There are no instant replays and there are no do-overs. Although the six Justices, led by the Chief, accepted the rather obvious argument that Congress told us exactly what would happen if states didn’t create their own exchanges (the feds had to create the same exchange), two of them could have joined with the three dissenters to say that an exchange “established by the state” means exactly (or only) that, and thus subsidies weren’t available there. Although I think the dissent is far less persuasive than the majority for all the reasons Mike wrote about yesterday, Professor Jonathan Adler, among many other smart people, thinks exactly the opposite. The key point is that the Justices could have written either opinion because they do get to make the rules. Had the Court sided with the plaintiffs, maybe Congress would have changed the law to offer the subsidies, but it was more likely pigs would fly.

Justice Oliver Wendell Holmes famously said:The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” This is a vast overstatement because much of “the law” is clear and obvious. We know we have to stop at red lights, pay our taxes, and not rob the local (if there is one left) bank. But, when it comes to the decisions of the United States Supreme Court, Holmes was exactly right.

Although many of us were gratified by yesterday’s decision, and some of us suggested this was one of the easier cases as a matter of legal reasoning to reach the Court, it is also a good day (now that it is the day after) to remember this is a Supreme Court (and a Chief Justice) who gutted the Voting Rights Act based on an overtly misleading summary of the facts and a sub silento overruling of a previous decision. This is also a Court that twice said that pregnancy discrimination is not discrimination based on gender (really), and for almost 60 years held that separate and obviously unequal public schools did not violate the equal protection clause.

When talking and writing about the Supreme Court, especially its high profile cases like King v. Burwell, it is imperative to remember Holmes’ admonition. Although legal materials like text and prior cases do count, so do politics, values, and life experiences. Yesterday, all those factors came together in a way many of us approve. Tomorrow, they may not, and that is why, even in easy legal cases like King v. Burwell, they have to play the game before we know how it will all come out.

Thursday, June 25, 2015

Justice Scalia's King v Burwell Dissent Degrades His Textualist "Brand"

by Michael Dorf

The opinion of Chief Justice Roberts in King v. Burwell proceeds concisely and persuasively via the following steps: (1) Read in isolation, the most natural reading of "an Exchange established by the State" as used in Section 36B of the Internal Revenue Code's provision governing the size of tax credits available for the purchase of health insurance would make such credits unavailable for individuals purchasing insurance through the federal exchange in those states that did not create their own exchanges; (2) however, statutory code sections should not be read in isolation, and given other provisions of the Affordable Care Act as well as its overall design, the language is ambiguous; and (3) accordingly, to implement rather than frustrate the manifest purpose of the law, in this provision (though not necessarily in others) "by the State" means "by the State or by the federal government acting in place of the State."

Before discussing the dissent, I'll note two very important features of the majority opinion. First, it does not in any way rely on constitutionally-driven presumptions of the sort I described in the aftermath of the oral argument (e.g., here). It does not say that reading Section 36B as the dissent does would amount to impermissible coercion under either the limits of the Spending Clause or the anti-commandeering doctrine.

Second, CJ Roberts expressly rejects the option of Chevron deference. He says, quite sensibly, that this particular ambiguity in the ACA cannot sensibly be read as a delegation to the IRS to fill in the gap. That seems plainly right and it's also important because it means that the IRS under a Republican president could not simply reverse course and decide that refundable tax credits for the purchase of health insurance are not available on federal exchanges (although, of course, a Republican president with a Republican Congress could amend or repeal the ACA).

As for Justice Scalia's dissent (joined by Justices Thomas and Alito), it seems to me either a rejection of his textualist philosophy or, if taken as exemplary of that philosophy, an indictment thereof. In his academic writings and in many of his opinions, Justice Scalia has been at pains to distinguish what he calls textualism from literalism or strict constructionism. For example, in the lead essay in A Matter of Interpretation, Justice Scalia writes (at p. 23) that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be . . . ." He says on the next page that "the good textualist is not a literalist . . . ."

Justice Scalia's King dissent pays lip service to the distinction between literalism and textualism. For example, he says that he "agree[s] with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters." And yet, throughout the dissent Justice Scalia gives no weight at all to the context that matters most: what Congress was trying to accomplish through the central provisions of the ACA and with the backup provision by which the federal government creates exchanges when states don't. To use an elegant turn of phrase by Justice Scalia from a case that CJ Roberts relies on in King, the King dissent finds that Congress has hidden an elephant in a mousehole.

The King dissent reads like literalism in one obvious sense. Justice Scalia repeatedly exclaims that "State" can only possibly mean "State but not federal" rather than "State or federal," festooning his increasingly adamant insistence with colorful adjectives for the majority's position ("absurd"; "impossible"; "shame[less]"; etc). But as in the four-Justice dissent in NFIB v. Sebelius, where the same lineup plus Justice Kennedy repeatedly insisted that a payment Congress labeled a "penalty" could not possibly be a tax for constitutional purposes even though CJ Roberts patiently explained why a provision that functions as a tax is a tax regardless of labels, so too in King, Justice Scalia's adamance that "State" cannot possibly mean "State or federal" leads anyone who does not share his commitment to the destruction of the ACA to ask "why not?".

What about context? Justice Scalia makes two moves to render his disregard of the broad context irrelevant. First, he thinks the meaning of "State" so darn obvious that there is no need to look at context--even though most of the judges to have examined the question think that it's at least unclear. Second, when he looks at context arguendo he looks mostly at linguistic context, describing how "established by the State" in other parts of the statute does appear to draw a distinction between states and the federal government. CJ Roberts responds that a single phrase can mean different things in different places in the same statute but Justice Scalia basically dismisses the point.

Only at one point in his dissent does Justice Scalia address the central question that has dogged the plaintiffs ever since they dreamed up this improbable case: Why would Congress have possibly meant to exclude subsidies on federal Exchanges? Justice Scalia's answer tracks the answer that the concocters of the lawsuit concocted: It's an incentive scheme to induce the states to create their own exchanges.

As CJ Roberts shows (and as numerous others have shown), that reading of this tiny elephant trapped in her mousehole makes a hash of the statute as a whole, but there is another problem with it, and one which even non-degraded textualism exacerbates: Before the ACA's enemies settled on Section 36B as the latest means of attempting to kill the law, nobody breathed a whisper of this supposed incentive mechanism. But that's not a problem for the dissenters, because the complete post-hoc-ness of the challenge can be dismissed as relying on legislative history--and even undegraded textualism abjures legislative history.

The core of the textualist argument against legislative history is that committee reports, floor statements, and the like are not reliable indicators of legislative intent. If one agrees, that's a fair reason to discount evidence in such materials, but it's not a reason to discount the absence of evidence for some position that has a very dramatic effect on the meaning of a law. Especially now that members of Congress and their staff go to great length to stuff support for whatever position they favor into the legislative history, if anybody in Congress thought that the ACA barred subsidies on federal exchanges and did so for the purpose of incentivizing the states to create their own, then surely one would expect to find something somewhere in the pre-enactment record to that effect. And yet there's nothing. With respect to legislative history of this sort, absence of evidence is evidence of absence.

To be sure, Justice Scalia believes he has another reason to disregard legislative history, even if reliable. Such history aims at uncovering legislative intent, but textualists say that unenacted intent is not law, and so courts should only look to construe the words that were enacted. Fair enough, but suppose that, in context, the meaning of the words is not pellucid. At that point, even Justice Scalia advocates construing texts "reasonably." And so the question arises: as between a construction of the statute that enables federal exchanges to function as backups in states that don't create their own (the majority approach) and a construction in which the ACA's other provisions will likely lead to the destruction of the individual health insurance market in states that don't create exchanges, which is more reasonable?

Justice Brennan once described originalism as "arrogance cloaked as humility." Textualism--at least as practiced by the King dissenters--is vulnerable to the same charge. It is supposed to constrain judges to implement the will of the legislature rather than their own. Textualism fails in that purpose, at least if one can regard King as an example of textualism. Justice Scalia accuses CJ Roberts of adopting special rules of interpretation in order to salvage the ACA. A psychologist might say that he is projecting in order to cover his adoption of special rules in an attempt to kill it.

Retirement Security Options: Liberal and Neoliberal

by Neil H. Buchanan

My new Verdict column, published yesterday, was in many ways an unusual exercise for me.  True, it was on the topic of Social Security, which is one of my main areas of interest.  What made it unusual, however, was that I felt the need to respond to good news by saying, "Now, don't get any ideas!"  Allow me to explain.

Last week, The New York Times published a truly exceptional article describing a pleasant demographic surprise.  It turns out that the group of near-retirees and retirees currently in the 65-74 age range has beaten the odds and managed not to lose ground economically, despite the effects of the Great Recession.  This group happened to land in what one expert called "the sweet spot" of U.S. history, old enough to have qualified for defined-benefit pensions and to have bought their houses before the run-up in prices that preceded the bursting of the housing bubble in 2008.  Other than the very rich, this group is the only one that is not now worse off than it was in 2007.  In fact, as a group, they have managed to recover a bit more ground than they lost during the worst of the economic downturn.

As I said, this is good news.  As soon as I read the headline, however, my first thought was: "Uh oh.  This is going to be spun as proof that the older generations are screwing over younger generations."  Although I was pleased to see that the article itself did not go there, it is obvious that there is a cottage industry of people whose job it is to find excuses to attack "entitlements," such that any evidence that Social Security (or Medicare or Medicaid) is actually working -- even for just a small subset of people -- become somehow another excuse to cut the program.

This is not, moreover, limited to staffers for Republican presidential candidates.  When I wrote my first law review article on Social Security ten years ago, I found an article by a top legal scholar who argued that it was important to cut benefits to older people right away, because they were dying off so quickly that it would soon be impossible to take things away from them.  (This is not verbatim, but I am not exaggerating the point.)  Based on such logic, evidence that 65-74 year-olds are doing relatively well could quickly become, "Go after them now!"

Again, "doing relatively well" merely means that this age group did not lose ground, whereas the rest of the non-rich are worse off than they were before the bubble burst.  Going after this group because they have been able to maintain middle class status would be inappropriate, to say the least.  And as I argue in my Verdict column, doing so via cuts to Social Security would harm even the people who do not have houses and pensions.  That is, it would be an indiscriminate way to go about achieving a goal that is itself a dubious proposition.

As part of that discussion, I noted that the best way to make it possible to reduce government commitments to retirement security would be to make people less likely to depend on Social Security in the future.  However, neither of the two factors that have helped the people in the sweet spot -- private pension, and housing appreciation -- is an option.  Housing prices are certainly not going to rise at the rates that they did during the last few decades, and they might even fall (at least in real terms) over the foreseeable future.  The most hopeful forecast on housing prices is that they will not do damage to the retirement plans of middle class people, not that housing will enhance retirement prospects.

Private pensions are not impossible to bring back.  In fact, changes in public policy over the last few decades enabled (one might even say that they encouraged) companies to stop offering traditional defined-benefit pensions.  Presumably, one could devise a way to return to the legal status quo ante.  Doing so, however, is unlikely to bring back the good old days, mostly because people now change jobs much more frequently.  If most people are likely to have multiple employers during their lifetimes, then the prospect of having an employer provide each worker with a private pension becomes logistically daunting.

Of course, one way around this would be to have all of a worker's employers contribute to her pension.  Again, this is possible, but it raises all kinds of difficult coordination issues, to say nothing of the possibility of gaming the system.  By comparison, consider how much of the adminstrative costs for health insurance companies is devoted to efforts to shift costs onto other insurers, the government, and the patients themselves.  If virtually every employer was on the hook for a private pension (remember, we are talking about defined-benefit plans, by which the employers bear the risk that the amounts contributed will not support the promised benefits), then devising rules for keeping every company on board would be a nightmare.  When we then take into account that there would surely be carve-outs for smaller businesses, and that many of the employers could be expected to go out of business, the private pension option looks worse and worse.

One could simplify all of that by having employers contribute to a general fund, from which pensions could be drawn.  But guess what?  That is what Social Security is!  When an employer hires an employee, 12.4% of the employees pay goes to Social Security.  As I have explained many, many times, it does not actually matter whether the money paid in is "saved" in the intuitive sense of being put in a "lock box" or even a deposit account in a bank.  Social Security is the method by which we eliminate the bureaucratic and legal nightmare that pensions would become, if we tried to rely on private alternatives of the old-fashioned sort.

In my Verdict column, I then pointed to what amounts to the neoliberal alternative to the liberal Social Security approach.  That is, if it were actually the case that people saved sufficient funds to support their retirement by drawing down bank accounts and selling financial assets during their golden years, then there would be less (or no) need for a government-coordinated pension program like Social Security.

As we know, however, people do not save enough for their retirements, and there is no reason to think that they would suddenly become savvy investors if the Social Security blanket were taken away from them.  Research over the course of decades demonstrates over and over again that people are myopic, that they are easily confused by too many options, that private investment companies charge excessive management fees and generally figure out ways to divert money from savers, and so on.

All of which is simply a way to back into the only real debate that remains regarding retirement security.  The nominally "pro-market" or "individualistic" approaches simply amount to getting people to save directly, rather than paying money into Social Security.  Because no one seriously believes that this can go well for the vast bulk of savers, such private accounts would have to be carefully regulated.

Moreover, because of income inequality, the only way to allow low-earning workers to have a decent retirement is to subsidize their savings.  A proposal during the Clinton Administration set up a sliding scale, with the lowest earners receiving (if I recall correctly) $7 to add to their retirement accounts for every $1 that they deposited from their paychecks.  Even that proposal, however, could only work if the worker actually is able to set aside money each month.

Or, we could require people to save, and have the government subsidize the savings of low earners.  But again, guess what?  That is what Social Security already does.  The George W. Bush Administration's partial privatization proposal simply amounted to diverting a fraction of payroll taxes to regulated savings accounts, which were supposed to provide higher returns than Social Security.  But because of management fees, the promise of systematically higher returns was hard to take seriously.  Moreover, to the extent that the economy grows quickly enough to provide higher returns on private retirement accounts, it can also support larger Social Security benefits.

The liberal vs. neoliberal choice, then, boils down to saying something like this: "We cannot go back in time to have private companies provide pensions.  One way or another, we are going to get people to contribute to a retirement system.  Social Security does this directly, and at very low administrative cost.  Pseudo-market alternatives merely dress this up in the garb of individual choice, but mimicking what Social Security does through private accounts is risky and expensive."  We are actually not choosing whether to try to guarantee retirement security.  We are only figuring out whether we want a system with low administrative costs, or with high costs and the increased probability that savers will be bilked out of their money.