Justice Scalia's Views About the Relation Between Law and Politics

By Mike Dorf


Making the rounds to promote his new book, Justice Scalia recently sat for a very substantive interview with Chris Wallace.  Much of the discussion about that interview has focused on what Justice Scalia said in defense of his dissent in the Arizona immigration case, including a not-too-subtle put-down of Judge Posner (who had previously criticized the dissent).  A lot of what Justice Scalia said was the sort of thing that any Justice would have said in similar circumstances.  But one exchange stood out to me as either disingenuous or reflective of a serious lack of self-awareness.  Here it is:

WALLACE: Finley Peter Dunne, the famous Chicago humorist once wrote, "The Supreme Court follows the election returns." How political is the court?
SCALIA: I don't think the court is political at all. People say that because at least in the recent couple of years - since John Paul Stevens and David Souter had left the court, the break out is often five to four, with five --
WALLACE: Republican appointed judges.
SCALIA: -- and four Democrats on the other side. That doesn't show they are voting politics. It shows that they had been selected because of their judicial philosophy. The Republicans have been looking for originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade.
Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with these philosophies?

Justice Scalia is making two points here, and they're both false.  The first point is that the divisions that account for ideological lineups on the Supreme Court are based in differing views about interpretive methodology.  But both casual observation and econometric regressions confirm that the divisions on the Court closely track political divisions.  E.g., the Court's conservatives vote for conservative outcomes, and the Court's liberals vote for liberal outcomes in all of the following cases: abortion, affirmative action, campaign finance, church-state separation, death penalty, gay rights, gun rights, and states' rights.  (I could expand the list if I were to include statutory cases involving environmental protection, labor, and other topics.)  What is Justice Scalia's account of this remarkable coincidence that methodological differences between originalism/textualism and purposivism produce divisions that just about exactly track political divisions?

His second point suggests an answer to that question but it too is plainly wrong.  Justice Scalia suggests that whereas Republicans have been appointing "restrained" Justices, "Democrats have been looking for the opposite," i.e., judicial activists.  But this is wrong because the breakdown between conservatives and liberals has nothing to do with the restrained/activist dichotomy.  Consider the eight subjects I listed.  On four of these--abortion, church-state separation, the death penalty, and gay rights--liberal Justices vote to strike down the outputs of elected bodies, while conservatives want to defer to the democratic process.  But on the other four--affirmative action, campaign finance, gun rights, and states' rights--it's the conservatives who want to strike laws down and the liberals who want to uphold them.  And I don't think my list exhibits much of a selection bias one way or the other.  These are the most contentious, most divisive issues on the Court, and the divisions look much more political than methodological.  Judicial restraint and judicial activism simply have nothing to do with it.

Perhaps there is an underlying correlation between methodology and politics?  Is it possible, in other words, that the reason why Republicans pick originalists is that originalism leads to politically conservative results, while Democrats pick dynamic purposivists because that method leads to politically liberal results?  I think there is a little something to this hypothesis.  Originalism, by its nature, is backward-looking, and thus conservative or even reactionary, in the literal sense.  But given the generality of the constitutional text, all interpretive methods are sufficiently manipulable to produce a wide range of answers when called upon to do so.  In their day, Hugo Black was a liberal originalist and Felix Frankfurter was a conservative purposivist.

This is not to say that judging is all politics.  To avoid cognitive dissonance, judges and Justices tell themselves (and believe) that they are not simply channeling politics--and from time to time that will be true.  Thus, CJ Roberts and Justices Breyer and Kagan will get enormous mileage from their Obamacare votes, even as the overall pattern even in that case was quite ideological.  Likewise, Justice Scalia seems to get a kick out of his own constitutionally liberal streak in Confrontation Clause cases, even as he professes to be a law-and-order conservative.  For my money, I think Chris Eisgruber had it about right in saying (in his book, The Next Justice) that Justice Scalia, on policy grounds, is not so much of a law-and-order conservative in this area, but I won't rely on that hypothesis.  Instead, I'll note simply that the fact that Justices occasionally surprise us by deviating from the ideological script hardly shows that political ideology isn't doing most of the heavy lifting.

JLin, Ichiro, the Olympics, and My Own Sorry Career in Sports

By Mike Dorf


I went to one basketball game at Madison Square Garden last season and it happened to be Jeremy Lin's breakout game against the Nets in February.  Like many other long-suffering Knicks fans, I was appalled but not surprised when James Dolan let Lin go in what appeared to be a fit of spite, but I can't honestly say that I have a good reason for caring.  Likewise, my excitement at the recent addition of Ichiro Suzuki to the Yankees is nothing more than, as Jerry Seinfeld put it, rooting for the clothes.

For most Americans, watching the Olympics on network tv is continuous with the experience of cheering for professional sports, except instead of rooting for the players who happen to be wearing the shirts with the team name from their home town, they root for the players who wear the USA shirts.  Actually, the connection to the U.S. Olympic team should be stronger than the connection to the professional athletes who play for their home town team because most people on the U.S. Olympic team are from the U.S., whereas professional athletes typically have no prior connection to the city of the team for which they play.

Still, I'm hardly the first person to observe that the patriotic fervor into which Olympic fans work themselves seems contrary to the spirit of international friendship that the Olympic spirit supposedly represents. To be sure, it's easy enough to dismiss the "Olympic spirt" talk as just so much hokum that was never true. But then, what would be the point of following the Olympics?

I can't speak for others, but for me the Olympics are a reminder of the difference between world-class athletes and us mere mortals. As an adult, I have been a mediocre recreational athlete with occasional moments of minor glory.  But in my youth I was a mediocre competitive athlete.

I was on my high school track team, as a long-jumper, a triple-jumper, and a sprinter on various relays. As a mediocrity, I would usually earn a few points (by finishing second or third) for my team in "dual" meets (competitions with athletes from one other school) but rarely placed in the top three in larger meets. There was one exception. At a conference meet when I was seventeen, I somehow long-jumped over 21 feet, despite the fact that I usually jumped in the 19-to-20 foot range. That was good enough for a third-place finish and it led my coach and me to think that I had somehow revealed my true potential, rather than just having a bout of really good luck. (A personal record by a foot is very fluky, but not inexplicable. There was a serious tailwind that day, I hit the board just right and I was feeling terrific.) I never again jumped as well but with my 21-foot jump I just barely qualified for a national track and field competition that brings together athletes from around the country. At that meet, I jumped my usual 19 and change, so I washed out in the first round, but I stuck around to watch the finals, at which a phenomenal athlete from Dunbar High School in DC won the competition with a jump of over 24 feet. It was like watching someone compete in an entirely different event.

But here's the thing. That kid from Dunbar was not then and did not become a world-class athlete. I was to him as he was to the likes of Bob Beamon, Carl Lewis and Mike Powell (all of whom jumped over 29 feet). Anybody who has had the experience of competing with or against a really top athlete will know the feeling: the ace pitcher on your high school baseball team has stuff that you can't hit; he gets recruited by top college programs and pro scouts; and he ends up flaming out without ever making it to AA, much less starring in the majors. Why? Because although he's much much better than you ever were, he's just not world-class. The sorts of athletes who end up as professionals or Olympians are simply playing a whole different game from the rest of us.

Okay, but why should we celebrate that? A world-class engineer makes useful products, a world-class singer has a quality to her voice that makes her that much more of a joy to listen to than an ordinary singer, but is it any more entertaining to watch a close swimming race between two Olympians than between two evenly matched recreational swimmers? Indeed, wouldn't we all be much much better off if we got off the couch and swam a few laps or ran a few miles ourselves? Perhaps the celebration of athletic excellence that is the Olympics simply undermines our health.

In truth, I don't have a good answer to this concern, except to say that despite my efforts not to be, I find that I continue to be a sports fan. I still recall what one of the tv commentators said (more or less) during the broadcast of what was one of the most thrilling college basketball games ever played: the 1985 NCAA basketball final in which underdog Villanova somehow played perfectly to defeat heavily favored Georgetown: "I don't know what people who aren't sports fans do for excitement." Again, it's possible to derive sports-fan excitement from a competition between evenly matched highly-competent players. Indeed, part of what made that 1985 NCAA final so exciting was the fact that the Villanova players were NOT world-class--and, really, except for Patrick Ewing, neither were the Georgetown players. But if you want to see a really terrific contest, your best bet is to see a head-to-head competition between the best athletes in the world. And when you throw in the possibility of a broken Olympic or world record, you can also see what amounts to a competition with the best athletes of the past. Is that a justification for sports-fandom? No, not really. But at least it's an explanation.

Non-Ideologues and Anti-Tax Sentiment

-- Posted by Neil H. Buchanan

Imagine that you live in a country that has decided democratically that it wants to have a national soccer team that is competitive at World Cup levels. Currently, the country's soccer teams are pathetically bad, and have been for years. You and your fellow citizens have decided that there will be a public/private partnership, in which the government and businesses will fund a full-scale national soccer development program. Strategists are assigned to develop a plan to fund youth soccer camps, developmental leagues, and so forth. Soccer is now so important that even your country's anti-government/anti-spending crowd initially agrees that this is a good idea.

The program is a success. After several years, there are young players from your country who are as good as any who grew up in the world's soccer powerhouses. Your country's national team is winning championships, pushing the likes of Germany, Brazil, and Italy around the field. What could be better?

Then, someone starts to notice that a lot of money was spent on developing players, and most of those players are not playing on the national team. Some were actually quite promising, but they ended up getting cut from the team when it turned out that their style of play was not right for the current competitive environment. Beyond those close calls, moreover, there are dozens, hundreds, thousands more kids who really turned out not to be very good. They tried, and the coaches tried, but not everyone is world class. In fact, some of them were not even good enough to make the first cut (by definition).

Now, as the country's success in soccer is increasingly taken for granted, people go back and start to think about all the money that was spent on developing and maintaining the soccer program. Some begin to do the simple arithmetic, and they figure out that the country spent an average of 10,000 local currency units on each player who entered the program, a sum of money that is a large fraction of the average person's salary.

The anti-government crowd springs into action: Waste! Fraud!! Abuse!!! Clearly, the politicians have wasted our money -- again! The skeptics are able to find files regarding one player named -- in the tradition of one-named soccer stars like Rodinho and Pele -- Solyndra. Solyndra was actually in the almost-but-not-quite category, and could have been a star if a few breaks had gone his way. He ran out of luck, however, and after years of government money being poured into his development, he is now a nobody. A perfect example of government waste, in the eyes of the anti-government public relations juggernaut.

The point of this (perhaps heavy-handed) parable is not to defend the real-world company known as Solyndra. That is a job that others have done well (for example, Joe Nocera last Fall). I used the parable form in this post because I want to begin by assuming that there was, in fact, no corruption or fraud in the national soccer program. It is, by assumption, a clean program that did what it was supposed to do, with money spent in ways that maximized the chances of success for the lowest expenditure possible.

Even so, my fictional Solyndra (and his much less talented fellow washouts from the soccer program) usefully show just how easy it is to describe even the most successful government spending program as "waste." All one need do is change the frame, usually by focusing on some sub-part of a spending program, and ask, "What did this spending really produce?"

Not every word in the early drafts of the Declaration of Independence was a gem, either. If one wanted, it would be possible to decry how much time Jefferson wasted on a final product that was not even fourteen hundred words long. People are now starting to do this to public school teachers, asking just what the ultimate payoff is from any randomly-picked moment in a day or item on a curriculum. Wasteful government spending!

Earlier this month, in honor of Independence Day, I wrote a Dorf on Law post describing how the anti-tax/anti-government crowd in this country has become increasingly cynical in its misuse of our founding era for their current political ends. In particular, they have built an entirely fictional history around the idea that the founders were anti-tax zealots. "Taxation without representation is tyranny" has somehow morphed into a Trojan Horse for trickle-down economics.

On the comment board for that post, a reader posed an important related question: "But how do you respond to those in the middle-class that reject taxes because they simply distrust government? For that population, it's not that 'taxation is theft,' but that tax revenue will be wasted. That argument doesn't seem crazy to me. What can you tell me?"

My basic response is that these sincerely held beliefs of middle-class American voters were not formed in a vacuum. Their increasingly extreme distrust of government is the flowering of a political strategy that is explicitly designed to make people distrust government.

Of course, there are real-world examples of real corruption, and real waste, fraud, and abuse. Even as a supposedly "big spending liberal" -- in fact, precisely because I believe in the importance of government spending to deal with many important issues -- I and people like me have long been proponents of "good government," in the sense that we understand the double importance of ferreting out real waste: It not only squanders economic resources, but it erodes the even more important resource of trust in the ability of government to help mitigate or solve some problems. Whistle-blower laws, sunshine laws, transparency initiatives, and all such things are important aspects of clean government.

The larger point here, however, is that even if there were no corruption or waste of any kind in any government program, it is possible to confuse matters sufficiently to make it superficially appear that there is a lot of waste in government. Of course, it is also possible to apply that logic to businesses' decisions, "proving" that many dollars spent by businesses -- even on ultimately profitable investments -- were wasted in the same sense. Yet there is no group of people who view it as their job to make that case consistently and loudly, which allows the "business is efficient" mantra to hold sway.

(In an ironic twist, one could even apply this perverse logic to the money spent by the anti-government crowd itself. How many of the Koch Brothers' dollars were really necessary to make people hate government? How do we know that they could not have achieved the same effect with only 90% as many dollars spent? Or only half? Or less?)

Distrust of government, therefore, is a good idea run wild. All powerful institutions -- public and private -- must be monitored carefully. In that sense, middle-class Americans are right to worry that tax dollars might be wasted, and they should demand action when waste is uncovered. Yet we now find ourselves in a situation where all sense of perspective has been lost.

The average American might or might not buy into the idea that all of the founders were anti-tax ideologues, but they have been conditioned to believe that even completely legitimate spending is, by definition, wasteful and unnecessary. It is not. Until we regain our perspective, we will continue to allow important social initiatives to be dismantled, piece by piece, in a futile attempt to eliminate the slightest suspicion that it is all a waste of the people's money.

Religious Freedom, Equality, and Child Abuse

By Sherry Colb

In my Verdict column for this week, I discuss a German court's decision to outlaw non-medical circumcisions of male children.  I conclude that the prohibition is under-inclusive relative to similar secular harms that parents inflict on their children.  In this post, I want to explore a different sort of under-inclusiveness that we find in the German court's prohibition of circumcision:  an under-inclusiveness relative to religious harms that courts and legislatures regularly tolerate, when the religion in question is a dominant one.

What harms does religion inflict?  One need not be a devotee of the so-called fundamentalist atheists (such as Sam Harris, Richard Dawkins, and Christopher Hitchens) to acknowledge that some religious teachings can cause significant distress in young children.  Religious parents frequently teach their offspring that God is watching their every move and surveilling their every thought, searching -- like a CIA agent gone rogue -- for anything sinful.  If the search indeed turns up something sinful, then the punishment will in some instances promise to be an eternity of burning in Hell.

For a young child, this threat can be terrifying.  Because children have a more difficult time controlling their thoughts and their behavior than adults do, moreover, children are likely to experience intense guilt, shame, and fear about what are really quite ordinary thoughts, feelings, and behaviors in growing children.

Depending on the particular religion, examples of commonplace but sinful thoughts and behavior might include doubts about the existence of God, sexual fantasies or dreams about people of the same sex or  opposite sex,  hatred toward a parent or a teacher, masturbation, and the list goes on.  Consider the seven deadly sins within Christian tradition:  wrath, pride, lust, gluttony, sloth, envy, and greed.  Many of the acts and feelings that religions designate as sinful are among the most common human acts and emotions, and the latter include the seven deadly sins.  Adults (perhaps) understand this reality and regard the desire to be without sin as an aspiration rather than a realistic mandate.  A child, however, may perceive the inevitability of his own sins as a reflection of something uniquely wrong with him, something that consigns him to eternal agony in damnation after his death.

A religious person might object that Hell is real, and that telling his children about it is the kindest thing he can do to protect them.  It might be similarly traumatic for a child to learn about pedophilia, but child sexual abuse is a threat, and keeping this truth from a trusting and vulnerable child might place her in harm's way.

From the perspective of a religious person, then, it is necessarily right to instruct one's children in a manner that will maximize the ability and motivation of  those children to conform their behavior to God's will and thereby court Heaven and avoid Hell.  From the perspective of a secular person or a member of a religious faith that rejects another religion's particular requirements, by contrast, an action that causes physical or emotional distress and trauma in a child -- religious circumcision or lessons about the consequences of sin in the afterlife -- will look like glorified child abuse.  For a Jewish take on religion-as-child-abuse, Shalom Auslander's books make very interesting reading.

It is far too easy, then, for one culture, whether religious or secular, to look critically at the conduct of other cultures, while finding much less obvious the comparable harms perpetrated by its own culture.  This is the meaning of "hypocritical" -- being insufficiently critical, when it comes to looking at oneself.

When examining religious practices that seem wrong or abusive, we must accordingly proceed with humility and an awareness of our own shortcomings.  This does not mean that we can never judge a religious or cultural practice that falls outside of our own traditions.  We must sometimes do so to protect those whom Professor Karima Bennoune has insightfully called "the others' others", individuals who live within a minority community that itself encounters discrimination.  But we must do so with care and sensitivity, lest we be guilty of hypocrisy and, thus, of de facto discrimination against those who differ from ourselves.

Rahmmigration, Romneygration, and Federalism

By Anil Kalhan

Last week, Chicago Mayor (and former Obama White House Chief of Staff) Rahm Emanuel reentered the national political fray, advising Mitt Romney that he should “stop whining” about the attention being given to his record at the helm — or was it “retroactively” not at the helm? I can’t keep track any more — of Bain Capital. Emanuel did not add, but might have, that it was not, after all, as if anyone had sent Romney a dead fish.

That same week, however, Emanuel made an even more consequential, if less widely noted splash with his announcement of the proposed “Welcoming City Ordinance,” which (it has been reported) he may formally introduce at the City Council meeting scheduled for later this morning. The ordinance would clarify and extend existing policies restricting the circumstances under which Chicago police officers may inquire about immigration status during encounters with members of the public:

The ordinance builds on an existing ordinance and longtime City policy that prohibits agencies from inquiring about the immigration status of people seeking City services, and provides that the Chicago Police Department will not question crime victims, witnesses and other law-abiding residents about their legal status. It will now be expanded to ensure that undocumented Chicagoans will only be detained if they are wanted on a criminal warrant by local or federal authorities, if they have been convicted of a serious crime and remain in the United States illegally, or if they are otherwise a clear threat to public safety or national security.

The ordinance provides for CPD training in conjunction with immigrant advocacy groups to build trust within immigrant communities; and the development of public marketing materials that outline the services that law abiding immigrants can safely access in the city of Chicago. CPD will continue to cooperate with federal authorities in investigating and apprehending violent criminals who may be undocumented immigrants. [link]

Interview of Rahm Emanuel by Julia Saenz (Univision), July 2011

The proposed ordinance is the latest in a slew of initiatives designed — as Emanuel has repeatedly put it since taking office — to make Chicago the “most immigrant-friendly city” not just in the United States, but “in the world.” (Emanuel discussed his overall vision for immigration in Chicago during an interview with Univision last summer.) In his inauguration address, Emanuel endorsed the Illinois version of the DREAM Act, which was adopted into law later that summer. Soon after taking office, Emanuel also established a new Mayor’s Office for New Americans, an immigrant integration initiative intended to facilitate immigrants’ access to city services and programs by (among other things) improving language access, enhancing opportunities for immigrant small businesses, and increasing the involvement of immigrant parents in Chicago’s schools.

Now, if you had been asked to predict an Obama administration official likely to become a strong champion for immigrant-friendly policies, Emanuel probably would not have been your first choice. While serving in the congressional leadership and the Obama White House, he repeatedly clashed with immigrants’ rights and immigration reform advocates for urging caution on moving forward with comprehensive immigration reform, which he openly characterized as the “third rail of politics.” In fairness, Emanuel’s record on immigration while in Washington was always more nuanced than some critics were prepared to acknowledge. Still, by the time of the 2011 mayoral race, Emanuel had sufficiently disheartened immigrants’ rights advocates with his “terrible” record on immigration to make immigration a significant campaign issue – prompting Representative Luis Gutierrez, a fellow Chicagoan and leading immigration reform advocate in Congress, to blast Emanuel for standing in the way of reform over a period of several years:

“He has not stood up for immigrants. He has not moved comprehensive immigration reform forward. He has not made the right decisions, he has made political decisions,” Gutierrez said. “That's not what the immigrant community deserves in the next mayor of the city of Chicago.”

Gutierrez considered a run of his own for mayor before deciding to return to Washington and support Gery Chico's bid for city government's top spot. [link; video]

Rahm Emanuel and Luis Gutierrez: La pareja dispareja?

But now, a year and a half later, Emanuel and Gutierrez appear to have patched up their differences. Indeed, Gutierrez apparently has been sufficiently satisfied with Emanuel’s record on immigration-related issues as mayor that when Emanuel proposed his Welcoming City Ordinance last week, Gutierrez was there by his side to show his support:

“If the mayor of the city of Chicago is going to work to make Chicago a model city with respect to policy and its treatment of immigrants, then I'm going to stand with that mayor,” Gutierrez told reporters. [link]

* * *

At another level, Emanuel’s shift to a more aggressively “immigrant-friendly” stance after coming home again should not be altogether surprising. After all, as mayor, Emanuel has had plenty of other contenders for the title of “third rail of politics,” such as closing police stations to address budget shortfalls. And long before Emanuel assumed office, Chicago could already have staked a strong claim to being the nation’s most “immigrant-friendly” city, and Illinois to being its most immigrant-friendly state.

In recent years, Illinois has been at the national forefront in developing new programs to promote immigrant integration, beginning with former Governor Rod Blagojevich’s “New Americans” initiatives in 2004 and 2005. Moreover, in contrast to states like Arizona, which require employers within their states to use the federal government’s E-Verify pilot program to verify their employees’ work eligibility, in 2007 Illinois sought to prohibit use of E-Verify within the state until concerns about the accuracy, effectiveness, and privacy of the new federal database system could be resolved. Last year, in addition to adopting its DREAM Act, Illinois became the first of several states to attempt to opt out of the federal government’s controversial “Secure Communities” program, which seeks to enlist state and local police in day-to-day federal immigration enforcement activities. Also in 2011, Cook County, in which Chicago is located, adopted an ordinance apparently similar to the one that Emanuel has proposed now, prohibiting county officials from detaining individuals longer than their criminal cases require even if ICE lodges a detainer requesting that they be held beyond such periods of time for immigration enforcement purposes. (For good measure, even CBS’s hit TV show “The Good Wife,” which is set in Chicago, has repeatedly presented the city and its residents in an immigrant-friendly light.)

Although news coverage has emphasized the potential for a clash between Emanuel and his erstwhile colleagues in the Obama administration — who have aggressively championed state and local involvement in immigration enforcement through Secure Communities and other initiatives — Rahmmigration presents an even sharper and more notable contrast with Romneygration. During the primary campaign, Romney embraced, as a “model” for immigration policy, a series of initiatives almost diametrically opposed to those taken by Illinois and Chicago:

In last night's debate, for example, he was asked about his preferred approach to immigration policy, and Romney responded, "I think you see a model in Arizona."

* * *

Romney is an inflexible opponent of the DREAM Act; he's palling around with Pete Wilson and Kansas Secretary of State Kris Kobach; he endorses a "self-deportation" agenda; he's critical of bilingualism; and his casual dismissals of "amnesty" and "illegals" are a staple of his campaign rhetoric.

Romney, by any reasonable measure, is the most right-wing candidate on immigration of any competitive presidential hopeful in generations. [link]

Ummm, talk about your “dead fish.” To date, Romney appears not to have publicly commented on Emanuel’s proposed ordinance — which is hardly a surprise, given that since becoming the presumptive Republican nominee, Romney has scrupulously avoided saying anything non-squishy on the subject of immigration at all.

Shorter Romney campaign: "Hey, look over there!" *runs out of the room*

— daveweigel (@daveweigel) July 12, 2012

Other immigration restrictionists, however, have taken note of the contrast between Arizona and Illinois. At a hearing before a House subcommittee – held the same morning that Emanuel appeared with Gutierrez in Chicago to announce his proposed ordinance – ICE Director John Morton got an earful from Republican members of Congress pressing the administration to move as aggressively against some of the immigration-related policies being implemented in Illinois as it did against Arizona’s SB 1070 and Alabama’s HB 56. Morton signaled that legal action against Cook County may indeed be on the horizon – in which case action against Chicago might not be too far behind if it adopts Emanuel’s apparently similar proposed ordinance.

* * *

Chicago, Cook County, and Illinois are not the only subnational jurisdictions vying to be “anti-Arizonas” on the subject of immigration. In recent weeks, Washington, D.C., has adopted an ordinance influenced by the Cook County ordinance, and the California Senate adopted the TRUST Act, which would establish essentially the same policy on ICE detainers statewide in California. Last year, the governors of New York and Massachusetts joined Illinois Gov. Pat Quinn in seeking to opt-out of ICE's Secure Communities program. In these jurisdictions and others, a significant impetus for legislation has been concern that ICE — contrary to its stated enforcement priorities — has been using state and local police to target individuals who lack serious criminal records or outstanding warrants, and that the net result has been diminished trust and cooperation with the police among members of immigrant communities.

So is a “showdown” looming between the Obama administration and jurisdictions such as Cook County, Chicago, Washington, D.C., and California? If so, the administration may find itself fighting on a lot of fronts — especially with litigation against Arizona, Alabama, and other enforcement-oriented jurisdictions continuing in the wake of the Supreme Court’s split decision in Arizona v. United States. Moreover, the legal case against laws like the Cook County ordinance hardly seems a slam dunk. Although ICE Director Morton insists that the Cook County ordinance violates federal law, and has referred the matter to the Justice Department to assess measures that might be taken, even an aggressive reading of Arizona v. United States makes that conclusion rather arguable. While 8 U.S.C. § 1373(a) prohibits local governments from “prohibit[ing], or in any way restrict[ing], any government entity or official from sending to, or receiving from [ICE] information regarding the citizenship or immigration status . . . of any individual,” the decision by these state and local jurisdictions not to treat ICE detainers as authorizing longer periods of detention does nothing by itself to inhibit such information exchange. To the contrary, treating ICE detainers as authorizing or, for that matter, requiring detention of individuals for immigration enforcement purposes beyond the period otherwise authorized for criminal law enforcement purposes would appear to raise significant concerns under both the Fourth and Tenth Amendments. (Even in Arizona v. United States, the Court emphasized that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”) While Morton has also argued that Cook County’s position might jeopardize federal funding to reimburse the cost of detaining non-citizens who are potentially deportable on criminal grounds, the ultimate strength of this legal argument also remains unclear. Perhaps it is no surprise, therefore, that ICE has sought a negotiated resolution of its dispute with Cook County, whose position might be understood — along with those of Chicago, California, and other jurisdictions resisting ICE’s efforts to dragoon state and local governments into federal immigration enforcement matters — as an effort to shape the national debate over immigration policy by engaging in what Heather Gerken has termed “dissenting by deciding.”

These disputes illustrate some of the ways, as I have discussed elsewhere, that traditional assumptions concerning the relationship between immigration and federalism may be incomplete. Traditionally, immigration law has been understood to constrain state and local involvement in the regulation of immigration in part based on the premise — entirely understandable, so far as it goes — that non-citizens are more likely to face hostility, discrimination, or disadvantage at the hands of state or local governments than at the hands of the federal government. While non-citizens may indeed often be vulnerable to hostility or discrimination by state and local government actors, as many conclude to be the case in states like Arizona and Alabama, when the federal government itself has become more aggressive in its regulation of immigration status, such as with programs like Secure Communities, non-citizens have often — contrary to prevailing assumptions concerning immigration and federalism — found greater receptiveness for the protection of rights and liberties in state capitals and local city halls, rather than in Washington.

Understood in this context, the apparent contrast between Congressman and Chief of Staff Rahm Emanuel, the Washington politician avoiding a “third rail” of national politics, and Mayor Rahm Emanuel, the “immigrant-friendly” Chicago politician, seems less remarkable. Perhaps technical legal questions of immigration preemption and immigration federalism also are less important in this context than the ultimate political questions: how will Congress and the President choose to navigate between and respond to the competing impulses of pro-enforcement jurisdictions like Arizona and Alabama, on the one hand, and more “immigrant-friendly” jurisdictions like Chicago, Washington, D.C., and California, on the other, at a time when both sets of impulses to “dissent by deciding” are becoming ever more forceful and assertive?

Aurora, Gun Control and the Second Amendment

By Mike Dorf


Predictably, both those who favor and those who oppose stronger gun control laws have pointed to the Aurora massacre as evidence for their position.  The gun control crowd has the more straightforward argument: James Holmes purchased the weapons and ammo he used to commit the massacre legally; therefore, existing state and federal laws are too lax.  But the gun-rights crowd is not without an argument.  They (or at least some of them) say: Miscreants will find weapons whether they are legal or not; if some law-abiding civilians had been armed themselves, they could have taken Holmes out before he fired as many rounds as he did.


Who is right in this debate?  That's ultimately an empirical question that data ought to be able to answer.  Consider that there is a very strong correlation between (state-by-state) rates of gun ownership and rates of per capita gun deaths, as touted here by the Violence Policy Center, a pro-gun-control group.  Is that evidence that more guns mean more violence and death?  Maybe, but to draw that conclusion one would also need to know the answer to two questions: (1) Are the people in the states with higher gun ownership rates simply more violent, so that homicides and suicides that would otherwise be committed in other ways are being committed with guns?  And (2) Which way does the causation run?  Do more people die from guns because more guns increase the risk of deaths from guns -- or does a high crime rate lead people to purchase guns to protect themselves?


There are further studies that aim to get to the bottom of such questions and, if I were a lawmaker trying to decide on gun control policy, I would want to know as much as I possibly could about what these studies show.  Even then, there would be normative questions that could not be directly answered by the statistics.  Suppose the evidence showed that an increased rate of gun ownership increased the aggregate risk of fatal and otherwise serious shootings by some increment.  From a public health perspective, that evidence would count in favor of limiting or even banning gun ownership.  But insofar as one thinks that there is a right to effective self-defense, one might think that this sort of utilitarian calculus is unfair.


Let me illustrate.  I am supposing that for the average person, gun ownership raises the aggregate risk to society (including himself or herself and his or her loved ones).  But there are probably some smaller number of people whose gun ownership actually makes society safer.  Such a person--I'll call mine Hypothetical Harry--takes exceptional care to store his gun safely, is not prone to depression, lives alone, and lives in a dangerous neighborhood in which the criminals run away when Harry (who has a reputation as an excellent shot) brandishes his gun.  We can at least imagine that the cost of a gun ban, even if justified overall, is not justified with respect to Harry.  The reason the government nonetheless (hypothetically) bars Harry from owning a gun is that the government has no reliable ex ante method for separating out people like Harry from the larger number of people whose gun ownership is socially harmful.  That is not to say that Harry does not experience a harm.  He does: Because other people can't be trusted to own guns, he is deprived of a gun, even though his owning one would be net beneficial.


Is the ban therefore unfair to Harry?  That depends on whether we think that someone like Harry ought to have a right to own a gun, even if the net effect of similarly situated people having the same right is the social cost of more violence and death--because, by hypothesis, the only way for Harry and people like Harry to have the right is for average law-abiding citizens also to have the right (as they cannot be distinguished from Harry-types ex ante).  Well, do we think that?

Here it's tempting to say that depends on who "we" are, but I'll resist the temptation and note simply that most of the rights with which we are most familiar work the opposite way.  Take free speech and suppose you think that some people--such as neo-Nazis and Klansmen--exercise their free speech rights in a way that is socially harmful.  In much of the democratic world that would be a reason to ban the speech of Nazis and Klansmen as "hate speech" or some such.  Here in the U.S., we allow Nazis and Klansmen to speak and march but not because we think their speech is valuable.  We do so because we think that government officials, including judges, will be unable to distinguish between Nazis and Klansmen, on the one hand, and people whose messages, while unpopular, usefully contribute to the Holmesian marketplace of ideas.  And because the costs of censoring everyone outweigh the benefits, we therefore tolerate the speech of Nazis and Klansmen.  But the calculus in this example is the mirror image of the calculus I have assumed in the gun case.  Under the First Amendment, we tolerate a small number of bad apples because the bunch is beneficial; by contrast, I have been assuming that with respect to guns, the overall bunch is rotten with a small number of good apples mixed in.

I would anticipate two sorts of responses from gun rights proponents.  One would fight things out based on the empirical evidence.  One sees this in works like John Lott's More Guns, Less Crime.  That's fine.  There are critiques of Lott and counter-critiques and so on.  As I said, I'm chiefly interested in seeing whether gun rights might be justified even if they are not cost-justified in the aggregate.  An argument that fights the assumption is not relevant to that inquiry (though of course it is relevant to a policy decision).

The second sort of response is what one sees in the Heller and McDonald decisions.  It goes like this: If one were writing a new Constitution, then one might want to ask what rights are justified, but in interpreting an existing Constitution, one simply figures out what the words mean, because the people who drafted and ratified those words already made the relevant decision.  And they chose to protect an individual right of gun ownership.

That second sort of response strikes me as correct, where it applies, which is to say where the text is clear.  But where the meaning of the text is in dispute--as the Second Amendment certainly was pre-Heller and McDonald--an opinion that insists on grounds of text and original understanding that the political decision was made in the 18th or 19th century will come across as question-begging if not disingenuous.

Here too, the First Amendment comparison is instructive.  The great free speech opinions of Holmes and Brandeis sometimes vaguely invoked the framers' generation (as when Brandeis, in his Whitney concurrence, attributed his own views to "those who won our independence"), but what made their cries in the wilderness echo across time was the normative vision they invoked. By contrast, the majority opinions in Heller and McDonald seem to say: "Maybe a flood of guns is good, maybe not, but anyway you're stuck with it."

In other words, although Heller and McDonald were the culmination of a movement of people who thought guns would make people safe, when translated from the language of conservative political activism into the originalist language of conservative jurisprudence, they lost most of their juice.  In that sense, the decisions foreshadowed the joint dissent in the Obamacare case, which, as Professor Buchanan explained here a few weeks ago, converted a libertarian cri-de-coeur into a mere drafting requirement.

Veganism, Year Four: The Cruelty-Free Quadrennial

-- Posted by Neil H. Buchanan

Four years ago tomorrow, in a post here on Dorf on Law, I discussed the proximate events that led to my decision to become a vegan. Each year since then, I have written an annual "veganniversary" post (although this is the first year that I have used that bad neologism). Last year's anniversary post includes links to the others.

This year's celebration is an especially happy one, because I now live in the DC area's "vegan central," Takoma Park (Maryland). Takoma Park has long had a reputation for being especially welcoming to vegans (as well as for its more generally progressive atmosphere), and it was only a matter of time before I moved here. What makes TP most interesting, however, is its demonstration of just how simple it is for a place to be vegan-friendly.

This is a truly small town, with about two blocks of "downtown" shops, including four (count 'em) restaurants. The diner that just opened (franchised from a national chain) is surprisingly lacking in vegan fare, but the other three all have many good vegan options. (My favorite is Roscoe's, which is named after the rooster who used to be the unofficial town mascot. Did I mention that this is a small, quirky town?)

A short walk from downtown, there is a justifiably famous place called SouperGirl, which is a completely vegan gourmet soup take-out shop. In the other direction, there is a good, funky coffee shop with vegan desserts. Most importantly, there is the Takoma Park-Silver Spring Food Co-Op. Although it recently (and quite unfortunately) began selling meat, TPSS puts all of its meat products in what amounts to a "corner of shame" in the back of the store.

That is it. A tiny town, with very few shops. But there is more than enough to make it vegan-friendly, and in a self-reinforcing effect, to make it worthwhile for businesses to consider vegan concerns when they make decisions.

One effect of being in a place that caters to vegans, even while it also caters to those who consume animal products, is that one need not engage in what one might call the "vegan dodge." Elsewhere, one is always faced with the question of whether to be evasive, saying, "Well, I can't eat dairy products, so can you tell me ..." This takes advantage of fear of lawsuits from lactose-intolerant diners, and it avoids spiteful reactions from some quarters. In TP, by contrast, one simply says: "I'm a vegan," and the server knows what that means (and proceeds appropriately).

Another effect of being in a vegan-aware environment is that labeling is vastly better on menus and in the co-op, regarding food ingredients. As I argued in my post four years ago, improvements in food labeling laws would make it much easier for people to become vegans in the first place. Takoma Park shows that, yes, if you can get the vegans in one place first, then the "free market" will change its labeling behavior.

The uniqueness of TP, however, shows just how unlikely it is that businesses will take the lead elsewhere. It hardly seems like a major imposition on businesses to require including a verifiable (and enforced) system to label products as animal-product-free, but we can expect that there will continue to be mindless rejection of such proposals. (I received an angry email from a BigLaw partner after my 2008 post, saying that he was tired of vegans asking for "special treatment" that imposed costs on others. This has always struck me as a position that, at the very least, lacks all sense of proportion.)

As a related matter, efforts to mainstream veganism have also long foundered on the availability (or, more commonly, the unavailability) of tasty substitutes for non-vegan foods. Although it is not in Takoma Park, the Sticky Fingers Bakery is only three and a half miles from town, in the Columbia Heights section of Northwest DC. Sticky Fingers has solved what had been one of the major challenges of veganism: really great baked goods. No one could ever complain that vegan food is not tasty after trying anything from Sticky Fingers, which has become famous for winning blind taste tests against non-vegan bakeries.

There have long been many mock meats available to vegans, which are very good. Because I have never missed the taste of any meats, however, this has never seemed like a big deal to me. Still, it is important for others to know that those options are there (and that they are much, MUCH healthier than the cruelly-produced products that they replace). Vegan ice creams are also great.

The lone remaining challenge now is cheese. I cannot count how many people have told me over the last four years that cheese is their deal-breaker for veganism. I take this seriously, because that was the issue that stopped me from making the right decision, for too many years. (I discussed the ethical aspects of products that do not involve killing animals -- except that they do -- in my 2008 post.)

What we need is a Sticky Fingers Cheese Shoppe. When that happens, everything will change overnight. The future will see growing acceptance of veganism. As food alternatives inevitably improve, more and more people on or near the fence will find it less intimidating to make the moral choice. At some point, something close to critical masses will be reached in more and more places. The momentum will then start to build, and fewer and fewer animals will be tortured, killed, and exploited.

In those happy times, Takoma Park will have to find something else to distinguish itself. No problem. We do a lot of meditating, which will give us time to find other things on which to take the lead.

What Should Movement Conservatives Have Wanted Chief Justice Roberts to Do?

-- Posted by Neil H. Buchanan

My written commentary on the ACA decision to this point has focused almost exclusively on the issues raised in the various opinions in the case: the form-versus-substance aspects of the taxing power (here), the dissenters' concession that Congress has the power to do what it did in the ACA case (here), and the extremely forgiving definition of "coercion" that the majority used in striking down the Medicaid expansion (Verdict column here, Dorf on Law post here). I have not, however, commented on the pivotal role that Chief Justice Roberts played in the outcome of the case.

There has been some extremely good analysis of Roberts's unexpected and historic role. Professor Colb (Verdict column here, Dorf on Law post here) discussed (among other important points) coercion in a different context -- the four dissenters' apparent attempt to put pressure on the Chief Justice to play on their team. Professor Dorf lauded Roberts for breathing new life into the fading hope that judicial decision-making is driven by substance and not politics. John Dean, our colleague on Verdict, wrote in a similar vein that the ACA decision showed that Roberts was willing to "call balls and strikes" as the neutral arbiter he claimed that he would be during his Senate confirmation hearings.

Here, I want to consider the pure politics of the choices that the Chief Justice faced. I do this not because I necessarily consider Dorf or Dean to be on the wrong track. Indeed, they both make a good case that principles triumphed in the ACA case. And I have no reason to disagree with Colb's analysis of the internal personal struggles that might have played out during the case.

I do, however, want to work from the well-known premise that underlies analyses like Professor Colb's: John Roberts is a "movement conservative," put on the court by the Bush/Cheney administration because they expected him to be a reliable arch-conservative, forming a bloc with Justices Scalia and Thomas (later to be joined by Alito), and putting Justice Kennedy (a not-quite-as-arch-conservative) in the swing role. The disappointment with Roberts among committed movement conservatives, both on and off the Court, is based on the belief that his decision harmed the cause. Did it?

I will assume for purposes of this argument that movement conservatives either do not care about the legal merits of a case, or that they believe that the legal merits of every case will always require an outcome that is amenable to their political goals. (See, e.g., abortion, affirmative action.) More to the point, I assume that the conservative movement sees the judiciary in purely instrumental terms, as another part of the game of politics, to be played as a means to a substantive end.

Chief Justice Roberts, under one view, decided that it was important to protect the reputation of the Supreme Court (and, perhaps, to establish his own reputation and legacy). He thus decided that it would simply be too damaging to the Court's credibility if there were a straight Republican/Democratic split on the Court, when confronted with the most politically salient case since Bush v. Gore. Better to lose this particular, high-profile battle, and thus to preserve the Court's unique role as a perceived not-quite-political branch of government.

If this is the correct view, then it means that Roberts was not calling balls and strikes in a neutral way at all, but rather that he simply decided to throw a game. Or, to extend the sports betting metaphor, he decided to throw a game by resting a key player, while still doing damage to his opponents by giving an "enforcer" playing time. (Here, that would mean refusing to go with his ideological colleagues on the taxing power, but making it more likely that his side will win future games to be played on the field of the Commerce Clause.)

Chief Justice Roberts might, therefore, currently be taking some very unwarranted heat from the very people whose long-term interests he has always served -- and continues to serve, even though they are too myopic to see it. Another possibility, however, is that the Chief simply misunderstands what is best for his movement. It might be that the worst thing he could have done is to protect the Supreme Court's reputation for impartiality.

In a recent Dorf on Law post, I discussed the precipitous decline in standards in the modern news media. In my concluding paragraph, I wrote: "It is difficult to see, however, how the people who control those corporations do not gain in the long run (or even the medium-short run) from further public disrespect for the press."

One could argue, of course, that it would be better if the public continued to respect the press, even while the press became subservient to the political agenda of its new masters. What we have seen, however, is that turning the news media into clowns has only helped the conservative movement, even though the biggest clowns are the talking heads in the right wing faux-news outlets. The public simply becomes disgusted with everyone in the mud fight, failing to distinguish truth from lies, and allowing the narrative to take hold that "they're all the same." This means that, say, climate change deniers receive the same consideration (and scorn) as do serious scientists.

Carrying this over to the judiciary, it is at least arguable that Chief Justice Roberts did his political allies (and masters) a disservice by passing up an opportunity to undermine further the public's respect for the judiciary. It is true that there are important cases coming up, in which it will be useful to have the public remain largely quiescent, comfortable in the belief that the Court is not engaged in pure politics. As an immediate matter, therefore, one can see that particular political gains can be made with less fuss, if the Court retains the public's respect.

If the Supreme Court became nothing but the butt of cynical jokes, however, who would really win? The judiciary's ultimate role is to prevent the outcome of every dispute from turning on who has the most power. It often fails in that role, of course, but the beauty of the rule of law is that people agree to go to a neutral arbiter and live by her decision, even if it would be possible for the stronger party simply to take what it wants, daring the weaker party to do something about it.

It is, therefore, possible that the political agenda that the Chief has advanced throughout his life would be better served by simply throwing off any pretense that might does not make right. Personally, I am glad that we have a still-somewhat-independent judiciary, even though I know that its reputation sometimes causes people to tolerate blatantly political results.

On the other hand, I am not sure which way movement conservatives should come out on Roberts. I understand why they are angry with him in the moment. It is less clear, however, whether he is their unappreciated savior, or instead the guy who blew the best chance in years to deal a death blow to an institution that has often stood in the way of their cherished political goals.

States, People, and Coercion: The Supreme Court's Puzzling Belief that State Governments Are Too Weak to Face Tough Choices

-- Posted by Neil H. Buchanan

Remember the Affordable Care Act case? The one that seemed like it was going to completely rewrite the political and Constitutional map for years to come? Well, the decision came and went, and now the Republicans are apparently trying to figure out why the public is bored with their attempts to continue to make a huge deal of Obama's (and Romney's) health care reform law. Who knew that the public's short attention span could be so good for the political conversation?

I, for one, continue to find the Supreme Court's decision fascinating. In my Verdict column two weeks ago, I discussed the dissent's elevation of form over substance regarding the taxing power. Then, in my Dorf on Law post the same day, I explored the dissenters' concession that even they would have said that Congress could impose a mandate (taking away people's freedom), so long as the mandate had been explicitly labeled a tax. In my new Verdict column today, I look at the part of the decision that the Obama Administration lost: the Court's invalidation of the provision in the ACA that states had to choose between expanding Medicaid or losing all federal funding for their existing Medicaid plans.

Although I note in the column the truly odd reasoning of the 7-Justice majority -- a different kind of form-over-substance approach, that would presumably have allowed Congress simply to end Medicaid, and then enact a new law (Medicade?) combining all of the old Medicaid provisions with the new Medicaid provision in the ACA -- my focus is on a different puzzler in the majority's position. Specifically, their holding is based on the idea that the choice that Congress gave the states was so one-sided that it was really no choice at all. The Court held, in fact, that this decision amounted to "coercion" and "compulsion," which the Constitution forbids.

Let us concede up front that the choice would have been one-sided, and that Congress meant for it to be so. The lawmakers in any given state would have been choosing between enacting a law that they might not otherwise have wished to enact (at minimal expense, but not zero expense starting in the fourth year) or losing all future Medicaid funding. Would we predict that most state governments would do what Congress was trying to get them to do? Absolutely.

But is this "compulsion" or "coercion"? The nature of human volition, and the law's treatment of that difficult notion, has long fascinated me. Economists often have an absurdly narrow notion of "choice." For example, at an academic session discussing low-wage work that I once attended, a feminist sociologist was talking about how people were being forced to work in dangerous conditions. An economist at the back of the room suddenly yelled out (without being called on): "Excuse me, but exactly who was it that held the gun to their heads?"

I have always enjoyed studying how the law answers this question, because coercion is such a nuanced issue, and (unlike so many of my economist colleagues) lawyers are inclined to see the shades of gray that real life presents when people are making "free" choices.

Even though the law does recognize that choices are often constrained, however, it is difficult to think of any area of the law in which the line separating coercion from non-coercion is -- shall we say -- forgiving. In my Verdict column, for example, I note the Court's invocation in the ACA case of the term "undue influence," to describe Congress's violation of a state's ability to make a free choice. I refer to a classic contract law case, Odorizzi v. Bloomfield Sch. Dist. (Cal. App. 1966), which (although it finds in favor of the coerced party) laid out in brutally clear terms just how extreme the coercion must be in order to constitute undue influence. Some language from that case is instructive:

"Undue influence ... is a shorthand legal phrase used to describe persuasion which tends to be coercive in nature, persuasion which overcomes the will without convincing the judgment. The hallmark of such persuasion is high pressure, a pressure which works on mental, moral, or emotional weakness to such an extent that it approaches the boundaries of coercion. In this sense, undue influence has been called overpersuasion. ... By statutory definition undue influence includes 'taking an unfair advantage of another's weakness of mind, or ... taking a grossly oppressive and unfair advantage of another's necessities or distress' " (citations omitted).

This is, of course, a state court decision based on a statute, but it is hardly unique in American law. I note in my column the blithe attitude that our legal system takes toward police coercion, coercion in immigration proceedings, and so on. And in cases where the stakes are economic and not custodial, the standards are even more extreme. Some judges and scholars reject outright the notion of "economic coercion," on grounds that bear more than a passing resemblance to that blunt question: "Who exactly was it that held a gun to their heads?"

Even those who accept that there ought to be a legal category of economic coercion (usually labeled "economic duress"), moreover, have generally limited the doctrine to the most extreme kinds of situations, where the freedom to choose is nothing more than the freedom to do what the other side wants or to lose everything. In the case of businesses, the standard generally amounts to this: "If the business would go bankrupt by not accepting the terms of the deal, then the deal MIGHT BE too coercive."

Whatever else one might say about the choice the Congress gave the states, it falls far short of that standard. What would a state do, if it turned down Congress's offer? Would it be forced into bankruptcy? Hardly. As in note in my column, the state has essentially three choices: (1) Continue to run its Medicaid program -- and now with the freedom to ignore the other restrictions that Congress has imposed over the years -- on a scaled-down basis (because the average state receives slightly more than half of its Medicaid funding from the federal government); (2) Raise taxes; or (3) Decide that Medicaid is a higher priority than other spending, and reallocate funds.

No, that is not a pleasant set of choices. And yes, there is a non-trivial definition of "coercion" that could cover that situation. What I find more than a bit surprising, however, is just how different one's definition of coercion must be -- compared to the definitions of coercion in any other area of U.S. law, at any level of government -- to call the ACA's choice "not really a choice."

What could explain this Supreme Court's embrace here of the importance of recognizing differences in bargaining power and other nuances of undue influence? This is, after all, a group of Justices that happily allows the most extreme types of "choices" to be imposed on real human beings all the time. This term's case regarding ineffective assistance of counsel in plea bargaining, for example, saw the four arch-conservative justices united in their contempt for the idea that real people might be coerced unfairly. Justice Scalia read his angry dissent in the case from the bench.

What was at stake in the ACA's Medicaid provision, of course, was federal-state interactions as a matter of federalism. I understand that this Court takes state sovereignty quite seriously (much more so than I think is warranted), which could put them in a much more forgiving mood, when it comes to claims that "I don't want to be forced into doing this!" But really, do the Justices think that the states have no spines at all? Why is the prediction, "I bet no state would turn down that offer," automatically read to mean, "Every state would be impermissibly forced to take that offer"?

Even if one has great solicitude toward states' prerogatives, why treat them as if their are delicate flowers who cannot face up to tough choices? More pointedly, if federalism's deeper purpose is to protect individual freedom by preventing the federal government from taking away effective choice, then why does that deeper purpose not show up when we are dealing directly with individuals and their freedom? Getting to the majority's position in the ACA case, after all, is not a matter of putting one's thumb on the scale for states, when it comes to defining coercion. It requires adding a 2-ton block of concrete. The Court's justification for adding that extra weight is, pardon the pun, a bit light.

When would it no longer be too soon for Germany to ban circumcision?

By Mike Dorf


A regional court in Cologne recently ruled that circumcision of male infants and young boys is harmful to them and therefore illegal.  The decision drew criticism and protest from Jewish and Muslim leaders in Germany and elsewhere, including a committee of the Knesset, Israel's parliament.  (AP story here, courtesy of HuffPo.)  Here I want to raise a question about the length of the shadow that a country's past misdeeds should cast over its current policy decisions.

To get to the issue that interests me, I'm going to make a number of potentially controversial assumptions.  I am not committed to any of these assumptions--so if you disagree with one or more of them, please don't flame me about it.  The assumptions are really really not the point.  It's the analysis that follows from them.

Okay, here are the assumptions: (1) Circumcision has some medical benefits, most prominently the reduction in the risk that future sexual partners of circumcised men will contract cervical cancer; (2) circumcision also carries some small risks of infection or otherwise being botched, is painful to the infant or young boy on whom it is performed, and somewhat reduces the ability of circumcised men to experience sexual pleasure; (3) therefore, in a jurisdiction in which circumcision is legal, parents could reasonably decide either to circumcise or not to circumcise their sons, and obviously, having a religious reason for doing so would count as a reason in favor; (4) but likewise, a reasonable legislator could decide to ban the circumcision of minors too young to give informed consent to the procedure; (5) and if a legislature in some jurisdiction did enact such a ban, it would have good reason to exempt from the ban those persons who felt a religious obligation to circumcise their young sons, although the jurisdiction might also choose not to provide religious exemptions if the particular jurisdiction does not, as a rule, provide religious exemptions from general laws.

Now suppose that some jurisdiction is considering a circumcision ban.  Let's assume that, after careful study of the evidence and the arguments, the legislators come to the view that circumcision of young males ought to be banned and that religious exemptions should not be granted.  And let's further assume that they do not reach that decision on the basis of any sort of animus against the minority religions affected (Jews and Muslims).  Assuming that such a determination would be justifiable in some jurisdiction without a fraught past on this issue (Denmark, let's say), would it be unjustifiable in a jurisdiction that does have a fraught past (Germany will do as our example)?  And if so, for how long?

At the very least, I would think that German legislators (or judges, but for simplicity I'll focus on legislators) would have an additional obligation to examine their motivation extremely carefully.  But beyond that, it strikes me that the substantive calculus should be different for the German legislators because the law's costs and benefits tally up somewhat differently in Germany than in Denmark.  In addition to the same costs the law imposes wherever it is enacted, in Germany it also creates symbolic harm.  Laws (and court judgments) do not merely tell people what they can, cannot or must do; laws also express messages, and those messages can themselves be harmful.  In Germany, even now, two thirds of a century after the end of World War II, a law banning circumcision without religious exemptions could carry the meaning that Jews (and perhaps Muslims) are second-class citizens, even if an identical law would not have the same meaning.  For more on the complicated question of figuring out when a law conveys such a message, see my article here.

Okay, assume I'm right about all of that.  Assume, in other words, that Denmark would be justified in passing a no-exemptions circumcision ban but Germany would not be.  When, if ever, would Germany be on a level playing field?  In a hundred years?  A thousand years?

I don't think one can answer that question in advance.  Our own situation is instructive.  Although slavery ended in the United States in the 1860s, certainly the fact that most African Americans are descended from slaves continues to bear on racial justice in the United States today--but that's due in no small part to the fact that we did not go from slavery to equality.  Jim Crow apartheid persisted into the 1960s and so much of the racial stratification we observe today can readily be traced to the historical injustice of racialized slavery and its legacy.

But even in the period in which the "taint" of the historical injustice lingers, policy makers ought not hesitate to act where they have a truly compelling basis for doing so. Thus, if new and widely accepted evidence were to emerge that circumcision is terribly harmful to young boys, German legislators could reach the conclusion that, notwithstanding the expressive harm, the benefits of a ban outweigh its costs.

The Knox v. SEIU Dictum is Truly Radical

By Mike Dorf

My latest Verdict column discusses the Supreme Court's decision last month in Knox v. SEIU, Local 1000.  In a line of cases going back to 1977's Abood v. Detroit Board of Education, the Supreme Court has allowed that in so-called "agency" or "closed" shops, a union may be empowered to bargain on behalf of all workers in the bargaining unit, whether or not they are union members, and to charge non-members of the union for the bargaining activities, so long as the union gives non-members the opportunity to opt out of the portion of union dues that go for "ideological" activities unrelated to bargaining.  As I explain, the Knox case presented a relatively narrow question: Do the same rules that govern how a union may charge non-members who are part of the bargaining unit for bargaining activities on an annual basis apply to a special mid-year assessment, where the assessment is for non-bargaining activities? 

The Court answered "no" but commentators have taken the real importance of the case to lie in the broadly anti-union rhetoric of the majority opinion by Justice Alito (joined by the other conservatives: CJ Roberts and Justices Scalia, Kennedy and Thomas).  That's fair, but in my column and the balance of this post, I want to suggest that the majority opinion is problematic in an important respect, quite apart from its implications for unions.

The radical suggestion in the majority opinion is that it may be unconstitutional for a union even to charge for its bargaining-related activities.  Although such charges have been justified on the ground that they address a free rider problem, the Court--quoting the late labor law scholar Clyde Summers--says that free rider problems do not ordinarily justify permitting private parties to charge other private parties for the costs of the efforts by the former that benefit the latter.  As I note in the column, that's true but beside the point.  The reason private parties can't ordinarily charge other private parties in that way is that the law doesn't usually authorize such charges, but in Knox the law does authorize unions to charge non-members.

More fundamentally, it's hard to see why the point that Summers was making is a First Amendment point.  Consider that the foundation of the limitation on charges for "ideological" activities is usually traced to a principle endorsed by both James Madison and Thomas Jefferson.  Jefferson put it this way: "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." 

The majority opinion in Abood quotes that language but one must immediately recognize that it cannot be taken literally.  Government constantly compels taxpayers to "furnish contributions of money" for programs with which many of them disagree.  As I noted in a column in 2001: "Pacifists object to the use of their tax dollars for military funding, environmentalists, for funding logging in national forests; and isolationists, for funding foreign aid."  So one needs a limiting principle.

Madison and Jefferson made their point in talking about funding for religion in particular, but the Abood line of cases extends their principle to opinions more generally.  Still, prior to Knox, the Jeffersonian principle was at least limited to compulsion to support expressive activities.  And even then, it only applied against the obligation that one person fund another person's private speech. There was no First Amendment right to object to funding government speech.  Thus, notwithstanding the Abood line of cases, as a vegan, I do not get to insist on a refund of my taxes to the extent that they support USDA promotion and advertising for cheese made from cow's milk.

In suggesting that it may violate the First Amendment for non-union members to be compelled to support the non-ideological, bargaining-related activities of unions acting for their benefit, the Knox majority would extend the Jeffersonian principle well beyond anywhere it has gone before.  The majority's approach--if applied to government activities as well as private activities--would completely paralyze government, as it would give every taxpayer a veto over where her funds were spent.  No doubt for that reason, the Court does not suggest that it would apply the Jeffersonian principle to non-expressive activities by the government itself.

However, even in the private domain, the Court's principle has the potential to do quite a bit of mischief, once one considers how much of what the government accomplishes through private companies.  Taken to its logical conclusion, the Knox dictum would give pacifists a right to refuse to pay taxes to the extent that they go to support private military security firms, for example.  Indeed, one wouldn't even need to be a pacifist to avoid the tax.  Under the Court's approach, it would be sufficient to say one doesn't want to support this, that or the other program that is undertaken by private actors.

Will that happen?  Of course not.  Instead, we can expect that either the Court will back down from the Knox dictum if and when the issue returns or, if the Court runs with it, to limit it in some way.  But if so, don't count on the limitation being self-evidently logical.