A Publicity Update and then Three Thoughts on Justice Scalia's Dissent in Windsor

By Mike Dorf

T'is the season for constitutional law professors to bloviate for the press--and so I've been doing my bit by fielding calls from reporters for CNN, Salon, the Wall Street Journal, USAToday, Bloomberg News, and the Star Ledger.  As I should have expected, some of these papers couldn't resist putting my line about "the first gay Justice" in their headlines, although, to their credit, they did include the full context to make clear that I was speaking metaphorically.  Anyway, it looks my yearly fifteen minutes are just about up, so now I'll go back to the more serious business of deeper analysis.

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Justice Scalia's dissent in United States v. Windsor contains a good deal of food for thought.  Here I'll discuss three morsels.
1) The Role of the Court

In response to one of the reasons that Justice Kennedy and the majority offer for finding that the case was justiciable, Justice Scalia took issue with the former's characterization of judicial review of legislation as the "primary role" of the Supreme Court.  Justice Scalia wrote:

declaring the compatibility of state or  federal laws with the Constitution is not only not the
“primary role” of this Court, it is not a separate, freestanding role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’”

In this passage, Justice Scalia is espousing a view that sometimes goes under the name "departmentalism."  The core idea, as espoused by scholars like Larry Kramer (in his book, The People Themselves) is that Marbury v. Madison means only that the Court--no less but also no more than the other branches--gets to interpret the Constitution in the course of doing its job.  And for the courts, the job is deciding cases.  That's what Justice Scalia means when he says that the power of judicial review of legislation arises "by accident."  It doesn't detract from the role of the other branches when they do their jobs.  Thomas Jefferson was a departmentalist; Abraham Lincoln espoused a version of departmentalism in his First Inaugural; Reagan's Attorney General Edwin Meese favored departmentalism; and various scholars on both the left and the right have, in the last couple of decades, favored a return to departmentalism.

Thus, Justice Scalia's espousal of departmentalism is respectable.  But--and this is a big "but"--Justice Scalia is wrong in asserting, as he asserts in his Windsor dissent, that departmentalism simply is the reigning approach to the Court's role.  Justice Scalia does not even believe that.  After all, he joined Justice Kennedy's majority opinion in City of Boerne v. Flores, which relied on Marbury to find that the Court was the ultimate arbiter of the Constitution's meaning, even when Congress has a different understanding.  Justice Scalia specifically declined to join part of Justice Kennedy's opinion, but not the part that adopted a non-departmentalist account of Marbury.  And of course, earlier this week, in Shelby County v. Holder, Justice Scalia joined CJ Roberts' decidedly non-departmentalist opinion invalidating the coverage formula of the Voting Rights Act.

To be sure, neither Boerne nor Shelby County involved non-departmentalism with respect to jurisdiction, but so what?  The core complaint of departmentalism is that it usurps power from the legislature, and that is even more of a problem with respect to substance than with respect to jurisdiction.  Moreover, there are other ways in which the modern Court functions in a non-departmentalist fashion, even with respect to jurisdiction.  The discretionary certiorari process is the most obvious.  The Court does not simply decide cases.  It chooses cases that are important precisely because the Court needs to resolve legal uncertainty, to say what the law is.  So Justice Scalia is technically right that the Court's law-declaration power originally may have arisen by accident, but it is now a firmly established feature of our system of government.

2) Rhetoric

In his dissent in Lawrence v. Texas, Justice Scalia compared the Texas law banning "homosexual sodomy" to laws banning "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."  In his Windsor dissent, Justice Scalia described the majority's reasoning as "legalistic argle-bargle" (marking the first usage of the term "argle-bargle" in the U.S. Reports!) and compared laws banning SSM to laws disallowing "no-fault divorce, polygamy, or the consumption of alchohol."  Some reports on the case (such as this one on HuffPo) have described the Windsor dissent as a rehash of the Lawrence dissent, and in jurisprudential substance it is.  But at least with respect to the rhetoric, I detect a tiny softening.

Note that Justice Scalia almost certainly disapproves of most of the items on his list of horribles in Lawrence.  By contrast, we KNOW that Justice Scalia does not disapprove of everything on his list in Windsor. As a wine connoisseur, Justice Scalia surely would not support bans on consumption of alcohol as a policy matter.  Thus, I infer that in Windsor Justice Scalia is not saying that same-sex marriage is indistinguishable from lots of other stuff that he regards as sinful; he is saying simply that whether to permit same-sex marriage should be a policy question left for legislative judgment.  As a matter of substantive argument, that's all he was saying in Lawrence too, of course, but his provocative choice of examples there predictably gave the impression that he believed that an expression of gay love between consenting adults was morally indistinguishable from bestiality. (It also gave the impression that he thought that the government could, consistent with the Constitution, ban masturbation, but let's not go there.)

Accordingly, I detect a tiny bit of progress.  Justice Scalia is not about to march in a gay pride parade, but he does seem to realize that expressions of completely open disgust for gay people are no longer acceptable.

At the same time, Justice Scalia does play the victim with respect to SSM.  He seems to acknowledge--if tacitly and grudgingly--that it is legitimate for polite society to shun homophobia, but he is outraged that the Windsor majority equates support for DOMA and opposition to SSM with homophobia.  There are lots of reasons one might have for opposing SSM, Justice Scalia suggests, that have nothing to do with homophobia.  This is nonsense, of course.  As the trial court proceedings in Perry demonstrated, when pressed for an actual justification for banning SSM, the best the Prop 8 sponsors could do was to talk about accidental procreation by unmarried heterosexuals.  But the point was obscured in Windsor because the federalism angle introduced second-order concerns--like the choice-of-law problems to which Justice Scalia pointed in his Windsor dissent.

3) Level of Scrutiny

If you believe that the Congress that enacted DOMA was concerned about choice-of-law issues, then I have a bridge I'd like to sell you.  Now Justice Scalia says this shouldn't matter.  Under traditional rational basis scrutiny, it doesn't matter what the actual motive of the legislature was; so long as we can imagine a rational basis for the law, it's constitutional.  And he's right about that.

Justice Scalia is therefore also right--IMHO--that there is much to regret about the fact that in Romer, Lawrence and now Windsor, the Court has failed to specify the level of scrutiny it is applying as a matter of equal protection doctrine (in Romer and Windsor) or substantive due process doctrine (in Lawrence).  Putting aside the substantive due process issue, it would seem much more straightforward for the Court simply to say that laws drawing distinctions based on sexual orientation are subject to heightened scrutiny, either because sexual orientation distinctions simply are sex distinctions (and sex distinctions are already subject to heightened scrutiny) or because LGBT persons have been subject to a history of discrimination that continues to this day (albeit to a lesser extent than in the past).

If the Court were to rule that sexual orientation is a suspect or semi-suspect classification, then Justice Scalia's point would evaporate, because under heightened scrutiny, actual legislative motive does matter.  (See, e.g., Village of Arlington Heights v. MHDC).

Why is the Court unwilling to say whether sexual orientation discrimination triggers heightened scrutiny?  So far as I can tell, at some point in the 1980s, the Justices simply decided that they were done recognizing "new" suspect classifications and fundamental rights.  The result has been considerable confusion in the case law.  As a con law teacher, I have a difficult time explaining to my students how to integrate cases like Romer, Lawrence and non-gay-rights cases that apply "covert" heightened scrutiny into their outlines.

But that's a sideshow.  The real downside of the Court's refusal to "come out of the closet" and openly recognize new suspect classifications is that it allows Justice Scalia and his fellow travelers to make plausible-sounding criticisms of the Court's egalitarian rulings.

Affirmative Action and the Court: What Happened to Article Three and the Eleventh Amendment? (Guest Post by Eric J. Segall)

By Eric J. Segall

This week the Supreme Court has given us a lot to talk about: affirmative action, gay rights, voting rights, and several five-to-four pro-big corporation statutory interpretation decisions decided along partisan lines. Lost in this wild scramble, however, and yet quite troubling, is what happened to Article III and those pesky little “case” or “controversy” requirements the Justices, especially Justices Scalia and Thomas, say they love so much. You remember those pre-requisites to federal jurisdiction, the ones that have kept numerous public interest and Establishment Clause challenges out of court for so long in cases like Allen v. Wright, Lujan v. Defenders of Wildlife, Hein v. Freedom from Religious Foundation and now Hollingsworth v. Perry as well. Moreover, related to the concerns for appropriate jurisdiction is the Court’s Eleventh Amendment doctrine which has been used by the Justices to block virtually all suits for damages against states and their officers. The Eleventh Amendment was also ignored by the Court this week. Although history may not record it, the Court’s decision in Fisher v. Texas (along with the no-standing decision in Perry) is yet another conspicuous reminder of what everyone who teaches a course on or even follows federal jurisdiction already knows: Supreme Court Justices, especially the conservatives but not only the conservatives, manipulate Article III and Eleventh Amendment case law to simply hear cases they want to hear and dismiss cases they want to avoid.

As I detailed here, the Fisher case needed to be dismissed for lack of jurisdiction because the plaintiffs’ constitutional claims were moot, she had no standing, and the Eleventh Amendment blocked her claims for damages.  (Theoretically the plaintiffs have statutory claims under Title VI which may be viable under the Eleventh Amendment because that federal law was enacted under Congress’ Section 5 authority.  But, even if that is true, the Court should have dismissed all of the plaintiff’s constitutional claims. Moreover, as discussed below, even possible Title VI claims would likely be barred by standing requirements.) If you don’t believe me, Adam Chandler wrote a longer, more scholarly-oriented, article concluding that the case’s jurisdictional defects made the case “botched beyond repair.”

To sum up the problems, Abigail Fisher, who has graduated from LSU, conceded that she would never again apply to the University of Texas, thus mooting her claims for injunctive relief. In fact, she didn’t even appeal the Fifth Circuit’s holding that all her non-damages claims were moot. Significantly, and unlike the plaintiffs in Grutter and Gratz, she didn’t bring a class action on behalf of other non-minority students.

The only damages claims Fisher has asserted are for her application fee and housing deposit to be returned to her. But she is suing officials of the State of Texas and therefore her constitutional claims for retroactive monetary relief are barred by the Eleventh Amendment under unambiguous Supreme Court precedents such as Edelman v. Jordan. Texas could waive that immunity but usually the Court requires an unambiguous, explicit waiver, which hasn’t happened here. Moreover, the fees she wants back were totally non-refundable whether she was admitted to the school or not, and thus her alleged injury wasn’t caused by the possible illegality of the schools’ affirmative action program flunking the second prong of Justice Scalia’s beloved three-part standing test.

The most amazing aspect of the Fisher case, therefore, is not that it took so long to decide, or that only one moderate Justice dissented, or that Justice Kennedy was able to garner the votes of the conservatives (other than Thomas), but that despite the substantiality of the numerous jurisdictional defects, some of which, like causation, can’t be waived by the defendant, the Court didn’t spend one syllable on whether it had the power to hear the case. Not one! And this happened during the same week that Justice Scalia ranted in Windsor (the DOMA case), that:

declaring the compatibility of state or federal laws with the Constitution is not only not the ‘primary role’ of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’

Well, it was completely unnecessary for the Court to decide the Fisher case because the only plaintiff in the case had nothing to gain. The moral of the story, therefore, is not a newsflash but it should serve as a somber reminder of an important fact. The Justices of the Supreme Court have no stake in the principled application of jurisdictional pre-requisites but simply use them when they are convenient. The next time the Court dismisses an important public interest or Establishment Clause lawsuit based on standing, mootness, or even the Eleventh Amendment, we will be reminded of this sad state of affairs one more time.

First Takes on DOMA and Prop 8 Rulings

By Mike Dorf

I've now read the majority opinion in Windsor (striking down DOMA) and enough of Perry (dismissing the Prop 8 challenge for lack of appellate standing) to formulate a few instant reactions on a number of points:

1) If Bill Clinton was "the first Black president," Anthony Kennedy has now firmly secured his place in history as "the first gay Justice."  As the author of Romer v. Evans, Lawrence v. Texas and now United States v. Windsor, Justice Kennedy makes clear that he not only accepts, but welcomes the task of writing majestic opinions affirming the dignity of gay persons and couples.  He remains fundamentally conservative on matters of federalism and his notions of equality when it comes to race are tightly formalistic, but his legacy is now secure.  A hundred years from now, histories of the Court will treat Justice Kennedy w/r/t gay rights the way we think of Earl Warren w/r/t racial equality.

2) There will be a vigorous debate now about the implications of Windsor for challenges to state laws that deny SSM.  CJ Roberts says the following in his Windsor dissent:

The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.

That strikes me as technically correct but wrong on the big picture.  Justice Kennedy's opinion in Windsor is chock full of language that, if taken seriously, would surely invalidate state bans on SSM.  Here is what I consider the money quote from the majority:

DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier  marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.  Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. 

Yes, that quote and the rest of the opinion say that state recognition is important but I find it hard to believe that any of the five Justices who signed onto it would sustain state prohibitions of SSM if they had to decide that question.  Rather, it seems clear to me that for prudential reasons, the majority wrote the opinion in such a way as to put off the decision of whether there is a right to SSM for at least several years, thus allowing the political process to continue to unfold.

3) To my mind, the real mystery is the lineup in Perry, which does not correspond to the Justices' views on the merits.  CJ Roberts writes for a majority that includes himself and Justices Scalia, Ginsburg, Breyer and Kagan.  There are two possibilities here.  One is that the Justices made radically different calculations about what would happen if they reached the merits.  The other is--amazingly!--that they had honest, non-ideological differences about the standing issue.  (More about that tomorrow.)

Free to Be You and Me

By Sherry Colb

When I was a little girl, my mom bought me a record album titled "Free to Be You and Me."  The album featured various songs sung and stories told by Marlo Thomas and other celebrities and was intended to communicate to girls and boys the value of gender non-conformity and a willingness to value one another equally and without resort to stereotypes.  One story on the album, as I recall, included a character who always said "ladies first" and insisted on being first at everything, an insistence that ultimately led to her being devoured by a hungry wild animal (a tiger, if memory serves).  Another story included a heroine whose father promised her hand in marriage to whoever could win a race arranged by the father.  The girl ended up running the race along with her intended suitors, and she managed to tie with one of the boys, whom she nonetheless chose not to marry because she wanted to travel the world and become a well-rounded person before considering marriage.  One of the songs, called "William Wants A Doll" offered the  lesson that a boy should be allowed to play with dolls so that when he becomes a father some day, he'll be able to dress, feed, and "care for his baby, as every good father should learn to do."  My mom wanted me to understand that men and women are equally entitled to fulfill their ambitions, whether those ambitions center on the public sphere, the private sphere, or both.

The message of Free to Be You and Me was about both freedom and equality.  Gender roles are constraining for both men and for women, and the record album challenged children to resist the constraints of femininity and masculinity and create a world in which knowing a baby's anatomical sex at birth would tell us very little about all that the baby might one day achieve and how that baby might best find happiness and fulfillment in the future.  One of the songs that stands out in my mind outlined how people could hold counter-stereotypical jobs.  I, for example, might grow up to be a doctor or a taxi-driver, and my male friends could grow up to be comedians or cellists.  In that song, one line was "There are a lot of things a lot of mommies can do"  But then a voice-over interrupted and cautioned "Well, they can't be grandfathers, or daddies."  The same thing happens in the part of the song dedicated to boys and men:  "They can't be grandmas or mommies."

My column in Justia's Verdict this week, examines a case that is currently before the highest court in Maine.  The case involves a transgender girl, whose pseudonym is Susan Doe and whose family sued the Supreintendent of her school department, among others, after her elementary school (and later her middle school) refused to allow her to use the girls' bathroom.  The school had initially permitted her to, but then a boy began following her into the restroom -- as instructed by the boy's grandfather, as a protest against Susan's use of the girls' bathroom.  The school reacted by barring Susan from the girls' restroom and subsequently required her to use a separate staff bathroom (which no other students used).  Susan's parents and the Maine Human Rights Commission have argued that this was sexual orientation discrimination and  segregation, both in violation of the Maine Human Rights Act.

In thinking about Susan's case, it occurred to me that the Free To Be You and Me album did not yet appreciate the predicament of the transgender child (or the gay child, for that matter).  The album offered the lesson that girls and boys could be anything they wanted to be when grew up, other than, respectively, men and women.  For its time, the message was quite progressive.  Some parents still become uncomfortable, even in 2013, if their son wants to play with a doll, and many families worry about their daughters if they are not married by the age of 30.  Yet the album does not address gay and lesbian sexual orientation (in the way that a similar album produced today surely would), and the album appears to affirmatively deny the fact that some of the people designated boys at birth will grow up to be mommies and grandmas.  The album treats sex, in other words, as a fixed anatomical fact that dictates gender, even if it does not dictate how one might manifest one's gender.

Now we know that some people are born with an anatomical sex that simply does not match their experienced gender.  Susan Doe, for example, thought of herself as a girl from the time that she was three years old.  She does not simply want the option of becoming a "feminine man" or a man who is sexually involved with other men.  She wants, instead, to be accepted as a female, because she fully experiences herself as a female.

Over time, we have come to appreciate how flexibly a boy or a girl might express his or her gender.  A boy can sing, dance ballet, play with dolls, and still be a bona fide boy.  He can also be attracted to other boys and remain an authentic boy.  And the converse is all true for girls.  In some ways, this flexibility can blind us to the fact that being assigned a sex can, for some people, itself be constraining.  Why, we might wonder, should an anatomical boy want to be a girl when he can do all of the things that girls can do and still be a boy?

The answer is that our identities as male or female are more than simply an amalgamation of the various activities we enjoy, the people to whom we are attracted, and the kinds of jobs we select.  It is this fact, after all, that makes people like the grandfather in Susan's case so angry at her (and so cruel to her) for using the girls' restroom.  This grandfather wants to define Susan as a boy because of Susan's anatomy at birth.  Sex has not become irrelevant -- either to cisgender folks (people whose gender identities match their assigned sex at birth) or to transgender folks.  And so long as sex matters to people, I think that it should, in a  country that values individual autonomy, be the choice of individual people to tell us whether they are male or  female.  It is not up to the majority to define as a boy the individual who says that she is a girl.

I predict that even if everyone treated transgender people with the full respect that they deserve, there would still be far more people who remained identified with the sex to which they were assigned at birth than people who identified as members of the opposite sex.  But regardless of what might ensue, a truly capacious notion of gender equality, sex equality, and freedom must allow girls and boys to be anything they want to be, including members of the opposite anatomical sex, without stigma, without penalty, and without the bullying and cruelty that Susan Doe was forced to endure.


Editor's Note (from Mike):  DoL will be back later today with more commentary on matters related to LGBT equality after the Supreme Court hands down the DOMA and Prop 8 cases.

What's So Extraordinary About The Voting Rights Act?

By Mike Dorf

The opinion of Chief Justice Roberts in Shelby County v. Holder--striking down the coverage formula of the Voting Rights Act (VRA)--repeatedly states that the VRA is an extraordinary piece of legislation, and therefore requires an extraordinary justification.  He and the majority thus find that Congress's continued use of a 40-year-old formula doesn't work.  That strikes me as a fair conclusion, given the premise.  But is the premise right?  What's so extraordinary about the VRA?

The Chief Justice and, to be fair, prior cases, point to two features of the VRA: 1) The fact that it treats different states (and localities within some states) differently, thus allegedly violating the principle of equal sovereignty of the states; and 2) It subjects states to a procedure whereby the federal executive "pre-clears" state laws before they take effect.  Are these really extraordinary?

Let's begin with equal sovereignty.  The fact is that Congress routinely writes laws that apply differently in different states.  Consider federal environmental regulation, which regulates or forbids particular activities in proximity to threatened land, water or species habitats.  Under such laws, an activity that may be permissible in one state or locality--logging, say--is forbidden in another state or locality.  Now it's true that in these instances the law does not EXPRESSLY differentiate between the various states and localities, but so what?  Federal spending measures often do draw express distinctions, as when Congress authorizes a particular national park or military base.  As a matter of practical politics, Congress often attempts to disguise the fact that it has singled out some place for some special burden or goody, but this doesn't fool anyone. 

Should there be some rule that requires Congress to legislate in a way that formally treats the states equally?  It's hard to see why.  Often there are good reasons to treat different places differently because of different contexts and circumstances.  General rules can probably take that into account, and so a formal requirement of equal treatment of the states wouldn't do much damage, but for the same reason it would be relatively easy to evade.  In any event, the Court in Shelby County does not say that Congress must use general rules; it says that if Congress singles out states, it has to keep the basis for the singling out reasonably up to date.  Yet there doesn't appear to be any requirement that general rules with differential impact be kept up to date.  And so the opinion seems rooted in formalism on this point.

What about pre-clearance?  CJ Roberts cites the fact that the Constitutional Convention rejected a proposal to give Congress the authority to "negative" state laws in support of the proposition that pre-clearance is extraordinary, but this strikes me as a non sequitur.  Under the Supremacy Clause, Congress does have the power to negative state laws whenever it acts pursuant to an enumerated power.  It's called the preemption power.  Although CJ Roberts is right that states initially set the ground rules for elections, the Fifteenth Amendment (as well as Article I, Section 4 w/r/t federal elections) gives Congress the power to change--and thus to negative--those rules.  So there really is nothing extraordinary here, at least so far as the Constitution is concerned.

I don't deny that Congress does not ordinarily exercise its power to distinguish among the states or to require preclearance of potentially preempted laws, and in that sense the VRA is extraordinary.  But I don't think the Court has made the case that the VRA is constitutionally extraordinary, or that if it is, that the political safeguards of federalism are inadequate to guard against abuse of these ostensibly extraordinary powers.

Deference and Diversity

By Mike Dorf

How should today's decision in the Fisher case be scored?  Based on what might have happened, surely it's a big win for defenders of race-based affirmative action.  The Court did not, after all, overrule Grutter v. Bollinger.  It did not ban affirmative action in higher education.  It did not--as some who filed as amici worried it might--require that percentage plans be adopted throughout higher education, even in contexts, such as law school admissions, where they have no realistic prospect of working but would cause serious harm.

No doubt many liberals are worried by the Court's statement that "the parties here do not ask the Court to revisit [the] aspect of Grutter’s holding" that found diversity to be a compelling interest. But I'm not worried about that.  Justice Kennedy himself agreed that diversity is a compelling interest in Grutter, and Chief Justice Roberts at least accepted that the Court's prior cases established diversity as a compelling interest in the Parents Involved case.  Notably, only two Justices in Fisher indicated that they believe diversity is not a compelling interest: Justices Scalia and Thomas.  If I had to bet, I'd say that Justice Alito and CJ Roberts probably would conclude that diversity is not a compelling interest if considering the matter de novo, but I doubt that they would overrule Bakke and Grutter to get there.  And because they know Justice Kennedy wouldn't, they almost certainly wouldn't vote to grant cert in a case that directly poses the question of whether to overrule the diversity-is-a-compelling-interest holding of Bakke/Grutter.

So what did the Court do in Fisher?  Justice Ginsburg's lone dissent says that it simply compounded an error made in Grutter and its companion case, Gratz.  In those cases, she argued that the Court had it backwards in rewarding universities for disguising their use of race.  Although she voted to uphold both the undergraduate and the law school admissions procedures then, she thought that the undergraduate program--which expressly awarded points based on race--had the virtue of transparency.  She continues that theme today.  She also echoes a point that various scholars have made (and that Pam Karlan and I made in our Grutter brief for the AALS:) the percent plans shouldn't be deemed race-neutral because they rely on segregation in housing.

I don't disagree with the substance of Justice Ginsburg's dissent but I also don't share her fears here.  As I read Justice Kennedy's majority opinion, the key error of the Fifth Circuit was its statement that it would defer to the educational professionals at the University of Texas in evaluating their decision of how best to achieve diversity.  The Court says today, correctly, that Grutter only said that educational professionals receive deference in their judgment that diversity is a compelling interest.  The application of strict scrutiny remains a task for the courts to apply de novo.

Accordingly, the battle now shifts to the question of how strictly to apply strict scrutiny in these cases.  Justice Kennedy's opinion cites both affirmative action cases and traditional discrimination cases, suggesting that the standard is the same in the two categories of cases.  And indeed, the Court has often said that.  But it has also indicated that strict scrutiny will be more forgiving in affirmative action cases.  The result is that a lower court that recites the strict scrutiny standard in its strict form will probably be given considerable latitude either to uphold or invalidate affirmative action programs.  In that sense, the action now shifts to the lower courts--and perhaps to the political fight between the President and Republicans in the Senate over whether the current Administration will have the opportunity to begin to shift the balance on those lower courts.

Compost, the Nanny State and Collective Action

By Mike Dorf

NYC Mayor Michael Bloomberg's plan for New Yorkers to separate their food waste for composting has, predictably, led to condemnations from the usual quarters.   For example, a New York Post editorial  worries that while initially voluntary, composting will eventually become mandatory, comparing composting to other supposed horrors such as the smoking ban, trans fat ban and failed plan to ban (some) sales of sugary drinks in large containers.  Since the end of communism a generation ago, people opposed to government regulation have had to shift their comparisons from warning about the gulag to warning about the nanny state.  Not every regulatory proposal is cost-justified, of course, but much of the reflexive opposition is not well thought out.

To stick for a moment with the Post piece, its authors ask rhetorically:  "If there’s really $100 million in savings to be had" from composting, "wouldn’t some clever entrepreneur be tempted to offer a solution?"  The short answer is it depends.  The financial benefits of composting are two-fold: 1) The city saves on garbage disposal costs; and 2) the compost is then turned into a valuable commodity for fertilizer or fuel.  A private contractor would only pay the city for the privilege of collecting food waste if the value of the compost as a commodity exceeds the cost of collecting and processing the compost; the city's savings on hauling garbage and paying for landfill don't enter the calculation.  Moreover, even if we assume that the value of the compost pays for its collection and processing, a contract for it is worth more if people compost more.

Will mandating composting lead to more composting?  In general, one would think so but mandates sometimes have perverse effects.  Under a phenomenon known in the psych literature as "crowding out," formal rules can have the effect of reducing people's internal and/or social motivation for engaging in some particular behavior.  Whether the crowding-out effect is larger than the effect of compliance due to fear of sanction plus rule-following from those people who internalize formal rules is an empirical question in each domain, but there are reasons to think that the crowding-out effect would be smaller than the mandate effect in this context. 

In NYC, there is currently no widespread pre-existing norm of composting that would be crowded out.  When I lived in NYC, no one ever asked me where my compost container was.  Then I moved to Ithaca and guests routinely did.  The first few times, I sheepishly admitted that I didn't compost.  Then I bought a compost bin and began composting, at first to comply with the social norm, but now I have internalized it.  The same thing could happen in NYC.  New Yorkers didn't used to have a recycling norm.  Now they mostly do.  But that's a bad example for crowding out because recycling in NYC is mandatory.  As with smoking bans, here we have an example of a mandate helping to create and strengthen a social norm, rather than undermining it.

Why would that be?  Again, it 's complicated and context-dependent but the clearest reason is that mandatory composting or recycling solves a collective action problem.  One person recycling, composting or refraining from smoking in a restaurant won't have much of an impact; she will bear the cost (in inconvenience or, for a smoker, cravings) but not reap the benefits.  But regulation is the classic solution to collective action problems.  And because people don't like to feel like suckers, legal requirements can build solidarity.

Complaints about the nanny state frequently miss the fact that many of the regulations at which the complainers take aim are geared to solving collective action problems.  Mostly that's the fault of the complainers, but not entirely.  The libertarian strain of our culture leads regulators to defend some regulations that are chiefly aimed at protecting people from themselves--e.g., trans fat ban, failed large sugary drink ban--in social terms.  We are told that obesity exacts social costs in terms of larger health care bills for everyone (because we pay for health care through private and social insurance).  Those claims are not wrong, but they tend to obfuscate.  Most people are not Ayn-Randian libertarians and so most people prefer not to think about helping people avoid harming themselves as chiefly about preventing those people from imposing costs on the rest of us.  We should forbid people from harming themselves (if we should) because we want to protect them; the social benefits should be regarded as a beneficial side effect.

To return to composting, I want to note finally that I am not necessarily endorsing the Bloomberg plan.  Legitimate concerns have been raised about implementation, including the added burden on residential building staff and the impact of providing a new concentrated food source for rats and bugs.  My point here is simply that it's overly simplistic to lump together all of the Bloomberg agenda under the "nanny state" umbrella.

Connecting the Dots Between the Unconstitutional Conditions Doctrine for Individual Rights and the Federalism Limits on the Spending Clause

By Mike Dorf

Yesterday's SCOTUS ruling in Agency for International Development ("AID") v. Alliance for Open Society Int'l Inc. could prove to be an important precedent in the "unconstitutional conditions" line of cases.  After a brief description of the case and the ruling, I'll say a few words about the surprising lack of express connection between this line of cases and another line of cases that addresses a very similar topic: federalism limits on how Congress may exercise the Spending Power.

At issue in AID were a federal statute and implementing regulations that required recipients of federal funds for HIV/AIDS eradication efforts to "have a policy explicitly opposing prostitution."  Respondents are organizations that undertake such efforts with federal funds but do not have such a policy.  (Policy experts and governments take different views on whether to oppose prostitution because it is a vector of HIV transmission or to work with prostitutes--for example, by distributing condoms to them--on a harm reduction approach.)  Requiring them to adopt such a policy, they claimed, violates their First Amendment rights.

In a 6-2 ruling (with Justice Kagan recused), the Court agreed.  Writing for the majority, CJ Roberts characterized the Court's unconstitutional conditions cases as drawing a critical distinction between permissible "conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and [impermissbile] conditions that seek to leverage funding to regulate speech outside the contours of the program itself."  Although acknowledging that this is not always a clear line, the Court thought it clear that the AID requirement fell on the impermissible side.  Among other things, the Court noted that the obligation to explicitly oppose prostitution was in addition to another condition forbidding AID recipients from using government funds to "promote or advocate the legalization or practice of prostitution."

Justice Scalia, joined by Justice Thomas, dissented.  They noted that the government, in selecting non-governmental organizations to carry out government policy, could adopt a policy of only choosing like-minded organizations.  Justice Scalia gave the following example: The government could decide not to fund Hamas for providing social services.  The AID conditions, Justice Scalia said, were functionally indistinguishable from selection criteria.

The majority offered two responses.  First, the Chief Justice observed that the AID policy was not merely a selection criterion but imposed ongoing obligations, enforceable by termination of funding.  Second, the majority said that the Government policy was not merely about soliciting "the assistance of those with whom it already agrees. It is about compelling a grant recipient to adopt a particular belief as a condition of funding."

There is more to-and-fro'ing between the majority and the dissent.  Suffice it to say that I find these cases extremely hard--perhaps even impossible, because there are slippery slopes in both directions.  (See my agonized past musings, here and here, for example.) On the one hand, as Justice Scalia notes, money is fungible, so that whenever the government funds any entity, it indirectly assists that entity in all of its activities, including actitvities that the government may oppose.  On the other hand, given the ubiquity of the state in modern life, a rule that government may withhold funds whenever it wishes would license considerable de facto censorship of a great many major organizations and individuals.  In the end, I find that my civil libertarian instincts put me closer to the majority's side in a case like AID, but I recognize that the doctrine is hardly perfect.

To his credit, CJ Roberts also does not pretend that the doctrine is perfect.  He quotes Justice Cardozo for the following proposition: “Definition more precise must abide the wisdom of the future.”  That is from the Steward Machine case, in what the Chief Justice calls "a related context."  What context?  Discerning the federalism-based limits on the power of Congress to condition the withholding of benefits under its power to tax and spend.  That does indeed seem related--and yet the Court's cases defining the limits of conditional taxing and spending appear to proceed on a completely different track from its cases involving unconstitutional conditions on individual rights.

They oughtn't.  In AID, the majority and the dissent agree that Congress (or a state legislature) may not impose conditions that are not relevant to its program and that it may not impose conditions in a way that is coercive.  The majority disagrees with what it characterizes as the dissent's further conclusion that these are the only limits, but there is no doubt that these are limits and--as neither side notices in the AID case--they are also limits in the Court's affirmative powers cases.  One might therefore think that this is a fertile area for cross-pollination.

Perhaps there has already been some such cross-pollination, at least sub-consciously.  The largely non-ideological breakdown of the voting in AID could reflect a blending of views on the two topics.  In the past, one could expect that liberals would favor a broad unconstitutional conditions doctrine for rights (i.e., a doctrine that somewhat strictly limited the government's ability to impose conditions on the conduct of individuals receiving government funds), while favoring deference to Congress in its imposition of conditions under the Spending Clause; and one could expect the opposite pair of approaches from conservatives.  But now we are beginning to see some consistency across the two domains.  Four of the Justices (Roberts, Kennedy, Breyer, and Alito) in the majority in AID were also in the majority in the Spending Clause portion of the ruling in the Health Care Case last Term--and it is a fair bet that the total would have been five if Justice Kagan had participated in AID.  So a majority of the Court appears to believe in robust limits on conditional spending whether the parties subject to the conditions are individuals or states.

Does this mean that the other four Justices are result-oriented hypocrites?  Not necessarily.  Justices Ginsburg and Sotomayor had good arguments against the Spending Clause holding in the Health Care Case--especially against its mysterious distinction between conditions on "old" and "new" spending.  Those arguments are not relevant in AID.  Meanwhile, Justices Scalia and Thomas could rightly say that the principle to which they object in AID--distinguishing between selecting a funding recipient based on its views versus later compelling the expression of certain views--was also not at issue in the Health Care Case.

Still, for a majority of the Court, there does appear to be some sort of non-ideological coherence developing on this set of perplexing questions.

Postscript:  As regular readers know, Neil ordinarily writes here on Thursdays and Fridays but he's now on vacation.  (I was unable to persuade him that blogging twice per week would enhance his honeymoon.  Go figure.)  Over the next month, I will occasionally take one of his slots (as today) and have occasional gap days.  I also may decide to run a few DoL "classic" posts, aka reruns.  We'll be back to our full schedule by the end of July.

The IRS Non-Scandal Scandal Collapses on Itself

-- Posted by Neil H. Buchanan

[A quick update, before I get to today's post: On June 7, I wrote a post here on Dorf on Law describing my "Inaugural Lecture" at the University of Business and Economics in Vienna.  The video of my lecture, as well as the panel discussion afterward, is now available on the university's website.  Click here to link to the video.  The actual lecture begins at the 7:12 mark, and runs to the 39:08 mark.]

This is my last post for the next month, during which time I will get married and go on my honeymoon.  Somehow, Dorf on Law -- and the blogosphere in general -- will survive without me.  I really wish that this post could be about something other than the non-scandal scandal involving the IRS, but the story keeps dragging on, and there are actually a few interesting things to say about it, mostly about what is NOT happening.  And what is not happening is any movement in the story suggesting that there was anything other than the set of low-level errors that were known from the beginning of this whole farce.

In my new Verdict column today, I make lemonade from lemons, using a snarky email that I received recently from a random right winger as an invitation to revisit and strengthen my argument that the IRS is an amazingly well-run organization, staffed by dedicated public servants.  When one considers the combination of budget cuts imposed by Congress, impenetrable tax provisions passed by Congress, and anti-IRS pandering engaged in by Congress, it really is amazing how well the IRS does its job.  (Note that, when I say "Congress" in the previous sentence, this means nearly every Republican, along with a shameless minority -- but still a depressingly large number -- of Democrats.)

What has changed, if anything, because of the non-scandal scandal?  We now know that there is a limit to how much the IRS can do with too few resources (or respect).  The one thing that the frenzy of further investigations has found is that this is an agency that finally reached its limit over the past several years, with too many career public servants quitting in disgust, and with too little money appropriated to recruit and train replacements.  I was always somewhat amazed by the IRS's ability to do so much with so little.  Even their powers to stretch themselves, it turns out, are finite.

What else has changed?  Not much.  The most entertaining thing -- if one likes to watch car crashes -- is the feud that has erupted between Republican Rep. Darrell Issa and Democratic Rep. Elijah Cummings.  The top men on the House Oversight Committee now truly hate each other, and they do not bother hiding it.  Issa, of course, has spent years honing his skills to become, in Andy Borowitz's words, "an odious, self-serving tool who uses congressional hearings to advance [his] own petty political agenda," basically spending all of his time in Congress figuring out ways to make baseless attacks on Democrats.

If the infamous Senator Joseph McCarthy was a "long ball" scandal-monger (holding high-profile hearings to try to prove that there were Communists everywhere), Issa is a "small ball" pest.  Issa uses the same tactics of intimidation, innuendo, and selective use of evidence.  And there is no reason to believe that he would not dearly love to be the home run hitter that McCarthy briefly was.  The problem for Issa is that he is only moderately competent at what he does -- and he is pitted against someone who is not intimidated.  Small ball can win games, if played well, but Issa is no Billy Beane.

But the gleeful spreading of baseless innuendos is something to behold.  The major newspapers have all called out Issa and other Republican Congressmen for their claims that the IRS's actions were driven by the White House's desire to harm its enemies.  (In my Verdict column today, I repeat a point that I have made before: If a political hack wanted to harm his enemies, this strategy is about the least effective one that could be imagined.)  Recently, many of those Congressmen have begun to couch their claims not in the way that Issa had been doing -- "I have in my hand evidence that ..." -- but simply saying that there must be evidence out there.

The simple refusal to believe that this is not "the tip of the iceberg," or similarly vague assertions, is spreading beyond Issa and his immediate colleagues.  In my Verdict column, I describe an op-ed by Maryland's former one-term governor (who also served one term in Congress), Bob Ehrlich.  Ehrlich had shown no signs before now of buying into the craziest conspiratorial nonsense on the right, but his op-ed shows that even former moderates have bought into the McCarthyite tone.

Similarly, TaxProf provided a link to an op-ed by some unknown guy writing for the Detroit News.  Under the brilliantly self-indicting headline, "Let's get rid of the IRS," the author tells his readers that "the IRS has been caught red-handed targeting conservative political groups for special scrutiny in what seems obvious was an attempt to aid the reelection bid of President Barack Obama."  Get it?  It "seems obvious," so it must be true.

Even Dick Cheney got into the act last week, not bothering to argue the merits but simply mocking the idea that this would NOT be political.  And I am sure that Dick Cheney would find it difficult to believe that the executive branch would not abuse its power.  I just had not realized that his entire party was now on board with his particularly cynical fantasies.

To its credit, the mainstream press has done a reasonable job on this story, actually reporting on the lack of evidence backing Issa's claims, and reducing coverage of a story that is obviously being dragged out for political impact.  Which is not to say, however, that our esteemed press is hitting on all cylinders.  As I described in my Dorf on Law posts last week (here and here), one of the big disappointments -- among many -- in modern journalism is the emergence of fact-checking organizations that quickly became enamored of being "balanced" between claims by Republicans and Democrats.  My ire in those two posts was aimed at one such organization, PolitiFact.  On the Issa/Cummings battle, the group FactCheck has had their moment of silliness.

Cummings had announced that an IRS employee's testimony to the committee had undermined Issa's claims of a White House plot to harm Republicans.  The witness was asked whether he knew of any such plot, and he said that he did not.  Cummings said that this showed that Issa lacked evidence to back his claims.  FactCheck, however, decided to flip the burden of proof, saying that "the excerpts are not as conclusive as Cummings portrayed them.  The IRS manager ... said, 'I am not aware of that,' when asked directly about a political bias or political motivations behind the targeting of conservative groups. And he said he had 'no reason to believe' that the White House was involved in the decision to target conservatives."  FactCheck concludes that Cummings was "overreaching" just as much as Issa has been.  As others have noted, Cummings is forced to try to prove a negative.  Pointing to evidence that does not support Issa's claims is all that Cummings can do.

Even so, the IRS non-scandal scandal is currently developing in a way that is pleasantly surprising.  In my first Dorf on Law post about the matter, I wrote that the circus-like atmosphere "will only get worse."  Maybe I was wrong.  At this point, there is no sign that the Republicans are giving up on their attempt to conduct trial by innuendo.  Happily, it does not seem to be working, at least so far.

I'll be back in a little more than a month.  To all Dorf on Law readers, I wish you a pleasant summer.

Handicapping Arizona's Next Lawsuit

By Mike Dorf

My latest Verdict column discusses Monday's SCOTUS ruling in Arizona v. Inter Tribal Council of Arizona.  I make three main points: 1) The breakdown is refreshingly non-political; 2) The Court's rejection of a presumption against preemption could herald more findings of preemption; and 3) The case is not so bad for Arizona's citizenship ID law, because it leaves open the possibility that Arizona could bring a new case in which it appeals the underlying decision by the federal Election Assistance Commission (EAC), which said that Arizona is not entilted to demand documentary evidence of citizenship as part of a mail-in voter registration.  Here I want to take a brief crack at the merits of that question that the Court did not decide: Would/should Arizona succeed in a challenge to the EAC ruling that it was not entitled to have the federal registration form include the demand for citizenship documentation?

Arizona's argument goes like this: States are entitled to set the substantive criteria for voting.  Arizona has made citizenship such a criterion and furthermore, has placed great value on that criterion by requiring particular forms of documentation.  Although the federal govt gets to change the law regarding the "manner" of holding elections, a law that makes it too easy for someone to claim citizenship is not a permissible manner regulation but a backhanded way of undermining the state's substantive criterion.

Is that persuasive?  It's certainly not illogical.  Suppose Arizona had a law that stated that only people who have read The Federalist Papers may vote.  Let's put aside the question of whether such a law would be invalid on free speech or equal protection grounds.  Instead, we want to know whether any particular federal law governing the manner by which qualifications are assessed is invalid on the ground that it extends into the state realm of setting substantive criteria for voting rather than just regulating manner.  So suppose that Arizona asks the EAC to include on its application form ten particular multiple-choice questions about the Federalist Papers and further asks that only those applicants who correctly answer at least seven questions be permitted to register.  The EAC refuses.  Instead, it adds the following to the form:

Arizona law only permits persons who have read the Federalist Papers to register to vote.  By signing this form, you attest that you have read the Federalist Papers.

There is at least a plausible case to be made that this manner of enforcement is so lax that it fatally undermines the state's substantive requirement of reading the Federalist Papers.  Arizona makes the same claim with respect to citizenship back here in reality.

But note that in my hypothetical example, the signer merely "attests" to having read the Federalist Papers.  The actual federal form for Arizona requires the signer to attest under penalty of perjury.  Is that enough to convert what (by hypothesis) is an otherwise impermissible manner regulation into a permissible one?

Maybe not.  Still, I think that the best argument against Arizona's position goes like this:

States do indeed get to decide the substantive criteria for voting.  And while the line between a substantive criterion and a procedure for enforcing that criterion is admittedly fuzzy, it is one that must be drawn because it appears in the Constitution: Congress has power to enforce the "manner" by which elections are held but not to make the substantive criteria.  The choice between attestation under penalty of perjury and documentary evidence pretty clearly falls on the "manner" side of the line.  For Arizona to win, it needs to do more than simply show that attestation is less effective than documentary evidence.  Arizona needs to show that attestation is so ineffective that it does not even count as enforcement of Arizona's citizenship requirement.  But if that's true, then attestation is insufficient in all of the other states that make citizenship a criterion for voting--and so the EAC-approved federal form would be invalid as to all of those other states as well.  Arizona's argument, if successful, would mean that federal forms for EVERY STATE would have to demand documentary evidence of citizenship.  And that's plainly not true.  QED.

I think that's a very effective response to Arizona's argument.  We will now have to wait for the administrative appeal and/or litigation that the Supreme Court invited to see whether it succeeds

Law, Politics, Right Answers, and Basketball

By Mike Dorf

Yesterday's ruling in Alleyne v. United States produced an interesting division on the Court.  The majority opinion by Justice Thomas was joined by the Court's liberal wing, whereas the four other conservatives dissented.  The case holds that factual findings necessary to the imposition of a mandatory minimum sentence must be found by a jury, not a judge, thus overruling Harris v. United States.

It's easy to see the votes of eight of the Justices in conventional liberal/conservative terms, but not the vote of Justice Thomas.  He has been a consistently strong supporter of a broad jury trial right.  Why?  Investigating that question may shed light on a long-running debate in jurisprudence--or at least provide an opportunity for some cheap jokes.

Whatever the reason for Justice Thomas's strong views about the jury, they clearly aren't conventional left/right ideology.  Here, as in other cases--like Justice Scalia's writing a dissent re DNA testing of arrestees that was joined by the three female Justices in Maryland v. King--one is tempted to say that we have evidence that Supreme Court Justices are not simply politicians in robes.  And they aren't.

But just because politics is not driving the way any particular judge or Justice votes, we should not conclude that law is doing the work.  Here we might recall two branches of legal realism.  One branch--which we might consider the predecessor to what became critical legal studies--points to political and perhaps other broad social factors (like race, sex or class).  In this view, individual judges or Justices are avatars for causes.  A second branch of legal realism was more focused on the individual psychology of particular judges or Justices.  The pointillism of this view is summed up in the familiar (if silly) idea that a judge's decision is as much the product of what he or she had for breakfast as it is of the legal arguments in the case.

If one thinks that each branch of legal realism holds part of the truth, then one might think that where ideology does not drive a judge's vote, idiosyncratic factors do--but in neither case is the decision driven by law.  After all, in a case like Alleyne, five Justices think the Constitution requires juries, while four justices think it does not, so it appears that the law is indeterminate.

Yet Ronald Dworkin famously argued that even in hard cases, there are right answers.  In that way, he disagreed with legal positivists--and most centrally with H.L.A. Hart--who thought that in hard cases judges exercised discretion.  Although I find myself functionally closer to Hart, I now think that the terms of their debate tended to confuse matters.  To explain why, it may help to introduce an analogy.

Suppose you and I are having a discussion about who was the greatest NBA center of all time.  There are a number of plausible candidates, depending on how one weights various criteria: Bill Russell played great defense and won the most championships; Wilt Chamberlain had the greatest individual statistics; Kareem Abdul-Jabbar scored the most points over the course of the longest career; Shaquille O'Neal physically dominated opponents in a way that none of the others did.  One could make some kind of a case for any of them.  But there are some NBA centers who clearly do not belong in the conversation, including Hall-of-Famers like Willis Reed and Robert Parish.

When you and I agree that Wilt Chamberlain was a better center than Robert Parish, we base that judgment on basketball criteria.  We use the same criteria when we argue about whether Chamberlain or Russell was the best center ever.  You point to Russell's nine championships and success in head-to-head matchups with Chamberlain; I point to the fact that Russell had better teammates and to Chamberlain's truly incredible stats: In a 14-year career, he averaged 30 points and 23 rebounds per game.

Dworkin was interested in basketball, so I regret that I didn't think to pose this example to him during his lifetime, but we can reconstruct roughly how he might have reasoned about it.  His point about hard cases was that courts use the same legal tools to decide hard cases that they use to decide easy cases; thus, Dworkin concluded that just as there are right answers in easy cases, there are right answers in hard cases.  But thinking about the greatest-center question shows where this reasoning goes wrong.  Just because one is posing a basketball question in both the Chamberlain-or-Parish example and in the Chamberlain-or-Russell example does not mean that one is posing a determinate basketball question in both cases.

In the Chamberlain-or-Parish comparison, all but one of the plausibly relevant criteria favor Chamberlain, and the outlier is easily explained away.  The outlier is championships.  Parish won 4 to Chamberlain's 2, but Parish was at best a third-banana on his Celtics teams, whereas Chamberlain was the franchise player on his teams.

By contrast, in the Chamberlain-or-Russell comparison, reasonable minds can disagree over how much weight to give various criteria. The debate is still a debate about basketball.  If someone said that Chamberlain was better than Russell because Chamberlain (by his own account) had vastly many more sexual partners, we would rightly say that this is not a legitimate basketball criterion.  That would be like a Justice voting for Bush or Gore in Bush v. Gore because the Justice thought that he would be the better President.

Dworkin was right that in both hard cases and easy cases, judges are guided by law.  But it certainly does not follow that judges are as much guided by law in the hard cases as in the easy cases.  What makes the hard cases hard is the very fact that the legal guidance is unclear.  Basketball criteria rule out Willis Reed or Robert Parish for the title of best center of all time, but they do not clearly settle on Chamberlain or Russell (or perhaps Abdul-Jabbar or O'Neal).

Hart fares better on substance but not in presentation.  As Roger Shiner elegantly argues in a recent paper, in The Concept of Law, Hart writes as though the exercise of judicial gap-filling is an exercise of judicial discretion in the sense of a completely unguided decision--what Dworkin called strong discretion.  But what Hart should have said--what would have been more consistent with his own position as best articulated--is that discretion itself is guided by law, albeit loosely.  That is, Hart only needed to say that judges exercise what Dworkin (later) called weak discretion.

And that brings me to some exciting news (well, exciting for law geeks, anyway): Geoffrey Shaw recently discovered a previously lost paper by HLA Hart on the topic of Discretion.  The paper was written for a faculty seminar when Hart was a visiting professor at Harvard during the 1956-57 academic year.  In a 2003 paper, I noted that Bill Eskridge and Phil Frickey speculated that Hart's paper may have argued that "much discretion cannot be controlled by law."  But it turns out that the paper in fact views discretion as much more subject to guidance than that.  Hart had in mind weak discretion after all.  The lost paper, along with an analysis by Shaw, will be published in the Harvard Law Review shortly.  I have seen advance copies of both, but they are not yet in general circulation.

"All Deliberate Speed" for Same-Sex Marriage?

By Mike Dorf

Although it's always tricky to predict outcomes of SCOTUS cases, the betting among the cognoscenti is that the Court will invalidate DOMA in the Windsor case and either uphold Prop 8 in the Perry case or find some way to duck the question.  Among other tea leaves we SCOTUS-watchers have been trying to read are Justice Ginsburg's repeated recent statements criticizing the Court for going "too far too fast" in Roe v. Wade.  As I've explained before, I disagree with her analysis of Roe, but there's no denying that she continues to infer from the experience of the last 40 years that the Court ought to tread lightly and go slowly where divisive social issues are at stake.  It's a fair (if not ironclad) inference that her recent statements regarding Roe are meant to prepare supporters of SSM for disappointment.  After all, if Justice Ginsburg thinks that it's too soon to recognize a right to SSM, it's hard to see how one gets to five without her.

Okay, so suppose you are a SCOTUS Justice who thinks, as Justice Ginsburg may be thinking, that the Constitution is best read to protect a right to SSM, but you worry that if the Court so holds now, there will be a backlash, perhaps even a violent one.  What are your options?

1) Bickelian Passive Virtues 

Following the analysis of the late Alex Bickel, you could exercise the "passive virtues" by deciding not to decide.  The best way to do that would have been simply to deny certiorari.  While that option wasn't available in Windsor--because a federal appeals court struck down a federal statute--it was certainly available in Perry.  It's not too late to deny cert retroactively now, by dismissing as improvidently granted (DIGging), but the betting seems to be running against that course.  Accordingly, the most likely "passive virtues" approach would be for the Court to find that the ballot initiative sponsors lacked standing to defend Prop 8.  I don't like that solution as a matter of standing law but the argument for no standing is plausible enough for the Court to hang its hat thereon.

2) Rule Against the Plaintiffs in Whole or in Part on the Merits

A partial victory for the plaintiffs along the lines of what the 9th Circuit did in Perry would address Justice Ginsburg's concern.  Per the 9th Circuit, the Court could say that there is a right to SSM only in states that once recognized, but then took away, SSM, i.e., California.  Or somewhat more broadly, the Court could follow the suggestion of the federal government and hold that there is a right to SSM in states that recognize same-sex domestic partnerships with all (or nearly all?) of the rights of marriage.  Either approach would avoid Justice Ginsburg's worry of sparking backlash because neither approach would require SSM in the most conservative states.  But during the oral argument, the Justices did not seem at all persuaded by either of these relatively narrow paths to victory for the Prop 8 plaintiffs.  At least at that time, it looked like the only merits positions that the Court was interested in was either a complete victory or a complete defeat for the plaintiffs.  If THOSE are the only choices, then a decision on the merits that doesn't spark backlash (on the supposed Ginsburg/backlash theory), would be a complete defeat for the plaintiffs.

3) All Deliberate Speed

If those are the only options for addressing the backlash fear, I would think that it's more likely that the Court denies standing in Perry than that it out and out denies any right to SSM on the merits.  A ruling along the latter lines is, after all, exactly what the LGBT rights community has been worried about all along, and the reason why the Boies/Olson lawsuit did not originally have the support of the larger LGBT rights litigation community.  They/we worried that taking the case to the Court too soon would result in a rights-denying ruling that would then delay an eventual rights-recognizing ruling.

But maybe there's a third option.  Is there some way to avoid a merits decision that denies the right to SSM and to avoid a (mostly) bogus opinion denying standing?  Maybe the Court could write an opinion along the lines of Brown v. Board II.  Having decided in Brown I that de jure racial segregation is unconstitutional, the Brown II Court nonetheless gave localities some time to address the supposed local variations in conditions needed to provide a remedy--under the supervision of the federal district courts exercising traditional principles of equitable discretion.  In the famous, albeit somewhat oxymoronic, phrasing of the Brown II Court, school districts were to desegregate "with all deliberate speed."

Brown II is generally regarded as an act of weakness bordering on cowardice by the Supreme Court.  Fearful that states and localities would disregard their mandate, the Justices blinked, and thus tacitly signalled to recalcitrant segregationists that they could drag their feet.  They did just that and as a consequence, desegregation cases remained in the courts for dedades.

Accordingly, I realize that it is odd to invoke Brown II as a model.  I am not suggesting that the Court should model a ruling exactly on Brown II.  Rather, my idea is that Brown II indicates another way of ducking backlash:  Vote for the plaintiffs on the merits with respect to liability but give the defendants some time to provide a remedy--say, five years to get to civil unions and another five to get to marriage.

The great virtue of this approach is that it's honest.  The Court would not have to make up bogus arguments against standing or worse, to rule against the Perry plaintiffs on the merits.  The Justices would say the following: We think that the Constitution is best read to protect a right to SSM but we realize that this issue is still very controversial and so we will give people time to adjust.

That is actually what the Brown II Court was really up to--although the Court couched its ruling in terms of the complexities of coming up with new districting plans.  There are no complexities with respect to SSM.  A state or locality can just start issuing same-sex marriage licenses.  So the Court would have to be honest about what it's doing.

The disadvantage, of course, is that while the delay-the-remedy approach is honest, it's not clear that it's exactly legal.  The Court has sometimes stayed its rulings to allow political actors to adjust.  For example, after the Court invalidated the bankruptcy jurisdiction in the Northern Pipeline case, it gave Congress over a year to come up with something else, allowing the bankruptcy courts to operate unconstitutionally in the interim.  But there, and in other similar cases, complex details needed to be worked out in the interim period.  To my knowledge, the Court has never stayed its judgment in this way to allow society to adjust to its substantive ruling.

Anyway, I offer this idea simply as a kind of thought experiment.  With a decision imminent, and with no one having argued for the "Brown II option", the Court will almost certainly not come up with it on its own.  Moreover, as I said, I think the risk of backlash is very much overblown, so I would prefer to see a ruling simply finding a right to SSM, full stop.

The Burden of Proof and Tax Law: Deja Vu Silliness

-- Posted by Neil H. Buchanan

In my Dorf on Law post yesterday, I described the simply embarrassing "fact check" provided by PolitiFact regarding the following statement from a Republican Congressman: "The IRS doesn't have to prove something against you. They can walk in and you've got the burden of proof."  The statement is clearly false, and I had even provided the PolitiFact reporter with the statutory language demonstrating it to be false.  Even so, PolitiFact ended up deeming the statement "mostly true."  As a matter of journalism, this really was an embarrassing episode.

What is, in some ways, even more interesting is the underlying story behind the current rule regarding the IRS's burden of proof in legal proceedings.  It turns out that this silly Republican talking point -- that the tax system is un-American, because only there do citizens bear the burden of proof, rather than being presumed innocent -- was already the source of much Republican chest beating back in the mid-1990's.  The current version of the law is, in fact, directly the result of that contrived claim by the Gingrich-led forces (of Contract on America fame) during their relentless attacks on the IRS.  Now, as then, the underlying assertion -- that in tax cases, citizens are presumed guilty until proven innocent -- turns out to be simply meaningless.

As the current IRS non-scandal-scandal continues to demonstrate, most of the real problems with our tax collection agency date from passage of the "Internal Revenue Service Restructuring and Reform Act of 1998" (RRA98).  That law followed a series of show trials, where Republican-led congressional hearings trumpeted lurid (and false) charges of IRS abuse of innocent citizens.  After RRA98 was passed, and in the 15 years since then, the IRS has been under increasingly intense attack, with an inadequate budget and decreasing morale.  This has led to, among other things, undertrained staff being told to process thousands of applications for nonprofit status by "social welfare organizations."  Nothing could go wrong with that, right?

But back to the burden of proof question.  As part of the Republicans' 1990's attacks on the IRS, someone in the pre-Karl Rove netherworld noticed that the Internal Revenue Code placed the burden of proof on the taxpayer.  That is, the Code said that the taxpayer had the burden of production of evidence, as well as the burden of proof of the legal claim.

Horrors!!  Un-American!  Guilty until proven innocent!  And what about the Magna Carta?!?!?!  (In the PolitiFact article that I ridiculed yesterday, they lead off with a ringing defense of the presumption of innocence, tracing it to "ancient times," citing a Supreme Court case from 1895 that takes the concept back to "the Bible, Sparta, Athens and Rome.")  So the self-styled defenders of American freedom in the mid-1990's decided to flip the burden to where they thought it should be, on "the accuser," which is supposedly the government -- although, as I described yesterday, what is really happening in tax cases is that the taxpayer is the one who is making affirmative claims, not the government.

The problem is that flipping all of the burdens in tax cases would have created havoc.  That is, imposing both the burden of proof and the burden of production on the government would have been insane, because doing the latter would have led to untenable situations like this: a taxpayer says that he has $50,000 in miscellaneous unreimbursed expenses, and the IRS has to produce evidence proving that the taxpayer's assertion is not true.  Short of invasions of privacy that would make this month's revelations about NSA spying look like child's play, such a legal rule would simply mean that every taxpayer could make any assertion that came to mind, knowing that the IRS could not produce evidence to disprove the claim.  Taxable incomes would quickly go to zero -- for everyone.

Of course, for some of the crazier Republicans at the time (and for the entire base of the party now), that was the point.  In the 1990's, however, cooler heads prevailed.  Maybe, they suggested, we could keep the burden of production on the taxpayer (to prevent mass tax evasion), but switch the burden of proof so that it is formally on the government.  The result was section 7491, from which I quoted in my post yesterday.

For a Republican Congressman now to be complaining about the burden of proof, therefore, is a bit like complaining about, say, the supposed evils of the Interstate Commerce Commission.  Whatever one thinks about the ICC, it was abolished in 1995!  Maybe Rep. Forbes is also angry about Prohibition, or the Works Progress Administration.  Republicans still like to repeat Ronald Reagan's apocryphal story about the burglar who fell through a skylight and sued the homeowners, so maybe the burden of proof in tax cases is just something that Republicans feel the need to complain about.

It is not just a matter of deja vu, however.  When RRA98 shifted the burden of proof, it did not "fix" anything.  Even though the burden of proof really had been on the taxpayer prior to 1998, it did not matter, because these are civil cases, not criminal cases, which means that the standard of proof is "by the preponderance of the evidence."  That means that, once the relevant evidence has been heard, the party that bears the burden of proof only has to barely surpass the 50/50 breaking point.

In tax cases, what does that mean?  In some instance, the question is never going to be close to 50/50.  For example, if a taxpayer claims to have given $80,000 to charity, and takes a deduction for that amount, the evidence would show whether he gave $80,000 to an entity, and whether that entity is authorized as a 501(c)(3) organization.  There is no 50/50 call involved at all.  It is all or nothing.

On the other hand, suppose that a taxpayer wants to claim certain expenses as medical deductions.  Section 213 allows deductions for money spent " for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body."  As one might imagine, that is a very blurry area of the law.  A famous Tax Court case involved a guy who wanted to deduct the cost of paying a kid to mow his lawn, because his doctor told him that his hay fever was worsened by exposure to mowed grass.  Was this within the definition of "medical care," for tax purposes?  The court said no, but reaching that conclusion -- though clearly correct -- was still not a 100% call.

Suppose, then, that you are a taxpayer who is in a legal dispute with the IRS.  Does it matter to you whether, under a preponderance standard, you bear the legal burden of proof?  I suppose that one could imagine a truly close case, where the decision was actually 50/50, and you would lose if you bore the burden of proof, but you would win if the government bore that burden.  In the real world, however, it is never that close (in tax cases, or in any other civil case, as my CivPro-teaching colleagues can attest).  In fact, a study in 2008 (ten years after RRA98) showed that shifting the burden of proof under the 50%-plus-a-tiny-amount standard simply makes no difference in tax cases.  The outcome is the same, no matter who formally bears the burden of proof.

This, by the way, is why the PolitiFact article that I discussed yesterday was especially confused.  They described Rep. Forbes's assertion as only "mostly true" because the government bears the burden of proof in criminal cases.  That, however, is not the point.  What matters is that the standard of proof in criminal cases is "beyond a reasonable doubt."  If it were the preponderance standard, then the legal burden would not matter there, either.

I considered, by the way, mentioning all of this history briefly in my reply to the PolitiFact reporter last month.  I decided not to do so, however, because the answer to the question at hand is so blatantly clear under current law.  I also guessed that saying that "it really doesn't matter who bears the burden, under a preponderance standard" would merely confuse the people who ultimately wrote the story.  It is now clear that I was right about that.

In any event, the return of Republican wailing about the burden of proof in tax cases demonstrates that they cannot even take yes for an answer.  As unnecessary as it was, Congress in 1998 shifted the burden of proof onto the government, leaving the burden of production where it should be.  Now, the claim is that the burden of production and the burden of proof are the same thing, kind of, and it is all un-American.  And the press goes along.  Is it any wonder that the political system is broken?

Bad Journalism, Again: Fact Checkers Think That Facts Are a Matter of Opinion

-- Posted by Neil H. Buchanan

Two weeks ago, in a Dorf on Law post, I discussed "a small example, with larger implications" of some truly sloppy work by a highly regarded journalist (the White House correspondent for NBC News), who mindlessly took a quote out of context, regarding the ACA supposedly being a "train wreck" waiting to happen.  It was a shameful moment, but hardly the worst that we have seen from our free press recently.

I am by no means, of course. the only person who has been disappointed, and sometimes stunned, by the disastrously low standards of the current media culture in this country.  It is even worse when one sees such incompetence first hand.  Last summer, for example, I described the completely predictable media circus that surrounded the release of the Supreme Court's decision in the ACA case.  I was asked by a media outlet to be one of the idiots standing on the Court's steps, reading the decision in real time and shouting at the camera as I was reading.  I declined.

Another such example, perhaps even more disturbing, occurred a few weeks ago.  During the first day of my "Basics of U.S. Federal Income Taxation" course, which I was teaching to a group of Austrian students, I explained the legal standards for the burden of proof in tax cases under the Internal Revenue Code.

Not ten minutes after the class ended, I received an email from a reporter for PolitiFact, one of the self-appointed fact-checking groups of reporters in the U.S.  It seemed that a 7th-term Republican Congressman from Georgia, Randy Forbes, had gone on Fox News and said, "The IRS doesn't have to prove something against you. They can walk in and you've got the burden of proof."  The reporter wanted to know if this was true or false.  I replied, in part:

"Rep. Forbes is completely wrong.  Sec. 7491(a)(1) of the Internal Revenue Code clearly places the burden of proof on the government, not the taxpayer, when the taxpayer produces evidence that would allow a court to make a legal determination: 'If, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary [of the Treasury] shall have the burden of proof with respect to such issue.'"

Now, PolitiFact has a spotty record, at best, in its assumed role as the nation's arbiter of truth and lies.  Almost every one of their analyses that has crossed into areas with which I have any familiarity has been wrong.  The group even declared a true statement by President Obama in 2012 not only false, but they awarded it their "lie of the year" award, which strikes me as a jump-the-shark moment for any journalistic operation, much less one that is specifically trying to separate facts from falsehoods.

Be that as it may, the burden-of-proof issue is a crystal-clear example of a legal question for which there is simply a right answer.  The congressman says the taxpayer has the burden of proof.  The law says the government has the burden of proof.  The congressman's statement is false.

To its credit, PolitiFact does recognize that some statements have nuances that make it more difficult to call them simply true or false.  Context matters, words can have multiple meanings, and so on.  PolitiFact's reports, therefore, do not merely label every statement as "true" or "false," but sometimes "mostly false," "pants on fire," and so on.

For reasons that I will explain in a moment, I would have been unsurprised if the report on Forbes's false claim had concluded that he was "Perhaps Understandably Wrong," even though it is absolutely correct to call his statement simply "False."  How did PolitiFact actually describe his statement?  "Mostly true"!  As the kids say: wtf?!  This conclusion is actually even worse, because the only reason they added "mostly" to their verdict is that they discovered that criminal tax cases place the usual "guilty beyond a reasonable doubt" burden on the prosecution, which is true but irrelevant to the inquiry.

In other words, for non-criminal tax cases, PolitiFact declared that Forbes's false statement was true.  How could they reach that completely incorrect conclusion?  This is where I would have been willing to say that the congressman's statement was "perhaps understandably wrong."  In the statutory language that I quoted, the (extremely clear) declaration that the government bears the burden of proof is preceded by the requirement that "a taxpayer introduce[] credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed."

What does that mean?  In my email to the reporter, I explained: "This means that the 'burden of production' remains on the taxpayer to produce evidence, but that's exactly as any sensible person should want it: If the IRS had the burden to produce evidence, it would have to be given access to individuals' private files, in order to find that evidence.  Is that what we really would want the IRS to be doing?  The taxpayer usually possesses evidence of donations, expenditures, and so on.  If they want to claim that, say, they donated $25,000 to a charity, they can surely produce a canceled check to support that assertion."

I was happy to see that the PolitiFact piece quoted my rhetorical question from that email ("Is that what ... ?"), but they still completely missed the point.  They seem to have been thrown off by a statement from an IRS webpage (from the small business and self-employed taxpayers section of its website), which incorrectly uses the term "burden of proof" to describe both the burden to produce evidence and the burden to prove the legal issue in court.  As I explained in my email to the reporter:

"[W]hen the IRS says (from your email), 'The responsibility to prove entries, deductions, and statements made on your tax returns is known as the burden of proof. You must be able to prove (substantiate) certain elements of expenses to deduct them,' they're apparently trying not to confuse non-lawyer citizens with the difference between 'burden of proof' and 'burden of production.'  Having the 'responsibility to prove entries, deductions, and statements' is simply to say that you, the taxpayer, have to show up in court and show your evidence that backs up what you say."

Think about the reaction if the IRS included on its public pages a legal distinction between production of evidence and proving points of law.  Congressman Forbes would surely say something like, "How is a regular person supposed to understand that?!  This is why people hate the IRS!"

Even so, it is true that one of the IRS's web pages does conflate the two concepts, which is why I think one could call Forbes's statement "understandably wrong."  (Why a statement on the "Small Business and Self-Employed" section of the website should be viewed as definitive for every taxpayer is another matter, but I will let that go for now.)

Nevertheless, PolitiFact then completely garbles the analysis by saying: "In other words, the IRS is presumed to be correct unless the taxpayer 'produces "credible evidence"' to counter the agency’s finding. ... So, for the most common interactions with the IRS, the burden of proof is indeed on the taxpayer."

No, that is not what it says "in other words."  The production of evidence is a matter of supporting an affirmative statement on the part of the taxpayer, not a matter of "counter[ing] the agency's finding."  The agency has not "found" anything that the taxpayer must disprove.  The taxpayer is making an affirmative claim about a fact of the world that (she hopes) will allow her to reduce her tax bill.

For example, suppose that there are two taxpayers whose employers have correctly reported that their respective salaries are both $80,000.  One taxpayer then says, "But I don't have to pay taxes on that income, because I gave it all away to a charity.  So the other guy should pay taxes, and I shouldn't."  At that point, the taxpayer would be legally obligated to produce credible evidence demonstrating that he has, indeed, given $80,000 to a charity.  Doing so would involve demonstrating that the charity is a legitimate charity, donations to which are tax deductible.  (There will also be legal analyses regarding annual limits on the total charitable deductions that Congress allows under the tax laws, and other issues.)

The point is that the taxpayer's requirement to produce evidence is not a "presumption of guilt," or "forcing the taxpayer to counter the agency's finding," or anything like that.  It is a requirement that, when a taxpayer claims that her tax computation should be based on certain facts, she must be able to produce evidence to support those factual claims.  The IRS is not presumed to be correct, because it is not making any claim other than, "Unless the facts are otherwise, this is your tax liability."  And the taxpayer has the ability to bring those additional facts to light.

PolitiFact dismisses as a mere technicality the production/proof distinction, and then claims that, for "the most common interactions with the IRS," Forbes's statement is correct.  But how do they get around the clear language from Section 7491, that "the Secretary [of the Treasury] shall have the burden of proof," even in (as PolitiFact describes it) "the most common interactions with the IRS"?  The article quotes a tax litigator as saying: "Nothing the congressman said on the burden of proof would strike me as outside of the norm or the general rule if I or any other tax litigator heard it in everyday conversation."

So, even though the law is absolutely clear that the burden of proof is on the government, PolitiFact is satisfied that this is not true, because one lawyer told them that tax litigators often hear people make the same mistake?

This, it seems to me, perfectly captures -- and then takes to a surreal level -- the modern media's obsession with a perverse notion of "balance": If you can find two people who disagree about something, simply report it as he-said-he-said.  Anything else is "biased reporting."  Critics of the media have joked that this will surely lead one day to absurdities like this: "Scientists say that the sun rises in the East.  Others say no.  The debate has not been resolved."  We now have something even worse: "The law clearly says X.  One lawyer tells us that some people say not-X.  So those people are right."

Here, as I stated above, one could acknowledge that it is easy to become confused about the meaning of the burden of proof, and conclude that this is not a "pants on fire" lie from a Congressman.  It is surely interesting that even some tax lawyers are sloppy in their language (or, more accurately, hear such sloppiness often enough that it is no longer remarkable).  But, we actually have a fact staring us in the face -- and PolitiFact is a fact-checking organization!  (Note, among other things, the organization's name.)

And just as clearly, we know for sure that taxpayers do not have to disprove any assertions by the government, but must only support their own assertions of fact.  That is not just a technical statement of the law, but a description of a system that respects taxpayer/citizens' presumption of innocence.

This, like the "train wreck" comment about the ACA, is not an error by the media that will alone change history.  Still, it is especially depressing to see that a fact-checking organization -- even when directly supplied with the most relevant fact -- does not even bother to report the facts as they stand, and instead invents its own notion of what happens "most commonly" on the ground.  A statement cannot be "true" -- mostly or otherwise -- if it is false.  And Forbes's statement is false.  Perhaps understandably false, but false.  And our media watchdogs (seemingly deliberately) missed another one.