Monday, June 30, 2014

Three Thoughts on Hobby Lobby, a Not Very Important Case

By Michael Dorf

Today's Hobby Lobby ruling raises all sorts of fascinating questions. Here I'll just record three thoughts.

1) The case just is not that important.  We tend to focus on Supreme Court cases one Term at a time, but some Terms have more important cases than others. Even if one regards Hobby Lobby as the most important case of this Term, this is a relatively sleepy Term.

To be sure, a ruling that publicly traded for-profit corporations are entitled to religious exceptions under RFRA would have been potentially important. Indeed, it's even possible to read the decision as having that implication. Justice Alito writes: "No known understanding of the term 'person' includes some but not all corporations." So even though the case only formally addresses closely-held corporations, it is possible to read it as implying RFRA rights for publicly traded corporations too, as Justice Ginsburg says in dissent. But even if a later case extends Hobby Lobby to publicly traded corporations, there will be little practical effect. As Justice Alito's majority opinion notes, major corporations are highly unlikely to avail themselves of exceptions because it would be so difficult to justify doing so under the business judgment rule (even if the corporate board were to want to do so). Moreover, the bad public relations would affect the bottom line and thus anger shareholders.

Meanwhile, the federal government now likely will move to extend the exemption regime that applies to religious organizations to firms like Hobby Lobby: with the government and/or the private insurers picking up the tab. The main potential of the case was always that it could be a symbolic victory for exemptions, and that this could then give momentum to the campaign against antidiscrimination law. But the Court goes out of its way to warn against that sort of generalization. Perhaps that distinction is unprincipled, but it nonetheless undermines any symbolic lift the case could have given to religiously-inspired bigots.

My one caveat here concerns the way that the Court distinguished anti-discrimination law. It said: 
"The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." What about sex discrimination, age discrimination, and most importantly, sexual orientation discrimination? My view is that anti-discrimination law is also compelling and narrowly tailored to these evils, but it's not obvious that (all members of) the Hobby Lobby majority agree. 

2) Some, but not enough, clarity on RFRA.  In my contribution to the SCOTUSblog Symposium on Hobby Lobby, I noted that the Court had paid inadequate attention to how it is that RFRA remains valid against the federal government. I explained that there is no good affirmative power argument against RFRA, and Justice Alito's opinion makes the same point. That is an advance. But I also raised the question of how it is that the Court is competent to apply the RFRA test--which is in most relevant respects the pre-Smith test--when in the Smith case it said that it was not competent to apply that test. The question is most acute for Justices Scalia and Kennedy, the two members of the Smith majority still on the Court and in the Hobby Lobby majority. The Hobby Lobby opinion doesn't answer that question. At the very end of the opinion, the Court says that Congress reached a contrary judgment in RFRA, but Justice Scalia's Smith opinion had implied that the test imposed a judicially impermissible task, as to which the Constitution should trump a statute. As I explained in my earlier essay, I think there are ways to get around this point, but the Hobby Lobby Court simply ignores the issue. (Let me add that the best way to get around the issue may be one I neglected in my original SCOTUSblog piece: As amended by RLUIPA, RFRA does not require inquiry into the "centrality" of religious belief, and Justice Scalia's judicial competence point in Smith can be read to be restricted to the centrality determination.)

3) Implications for the Little Sisters Case

A casual reading of the opinion might lead one to think that it is bad news for the plaintiffs in the Little Sisters case and the other cases in which people argue that the government's required procedure for obtaining an exemption is itself a violation of RFRA. After all, the Court rules in Hobby Lobby that the challenged rule violates RFRA because it is more restrictive than the opt-out procedure by which the insurers themselves pay for contraception (and ultimately recoup its cost because it's cheaper than paying for the health impacts of pregnancy). If that is the less restrictive alternative, then surely that alternative satisfies RFRA, and so the Little Sisters and like plaintiffs are out of luck, right?

Wrong. Justice Alito's footnotes 9 and 39, together with the following statement, make clear that he is not foreclosing the Little Sisters challenge: "We do not decide today whether an approach of this type", i.e., the opt-out combined with insurance coverage being directly supplied by the insurer, "complies with RFRA for purposes of all religious claims."

Meanwhile, elsewhere in the opinion, Justice Alito makes crystal clear that the question of whether the connection between a compelled act and its consequences is too attenuated to implicate RFRA is one as to which the religious claimant's own views are determinative (except perhaps in tax cases). Accordingly, I read Hobby Lobby as quite favorable to the Little Sisters and similar plaintiffs. And I think that explains why Justice Alito offered reasons for thinking (although did not ultimately rely on the conclusion) that RFRA was not narrowly tailored for a second reason: the government could just pay for contraception insurance directly. If that's also a less restrictive alternative, then that will greatly help the Little Sisters in their case.

Sunday, June 29, 2014

The Fallacy of the Claim That "Research" Shows That "Humane Meat" Brings People Closer to Veganism

by Sherry F. Colb

Over the last few months, I have repeatedly heard  a peculiar claim articulated by a variety of vegan advocates on different vegan outlets.  The claim is this:  Even though it might seem that people consuming so-called "humane" animal products poses an obstacle to the movement for veganism, "research" shows that the opposite is true.  "Research" shows that when people decide to purchase "humane" animal products, this choice increases the odds that those same people will eventually decide to become vegan.  When I first heard this claim, I was intrigued.  Could it be that animal farmers encouraging people to purchase their "local, sustainable, and [allegedly] humane" animal products were actually helping the vegan cause?

The answer is that the research on which people have based this conclusion gives us no reason to imagine that "humane" animal products bring people closer to veganism.  My own conclusion, based on a combination of logic, experience, and my own anecdotal observations, leads me to believe that in fact, the opposite is true, that encouraging people to consume so-called "humane" animal products poses a major obstacle to the continuing spread of veganism.  But quite apart from what I think, the research that supposedly supports the utility of encouraging the consumption of "humane" animal products in moving people closer to veganism does no such thing.

How can I say this?  Well, let us consider what the research actually shows and why the conclusions people have drawn from that research do not at all follow from it.  Here's the supposedly revolutionary finding:  It turns out that people who purchase animal products labeled "humane" (or "compassionate" or some other equally misleading adjective) may be more likely eventually to become vegetarian or vegan than are people who do not purchase these products.  That is, there is a correlation between people buying animal-derived products labeled "humane" at point 1 in time, and people reducing or ending their consumption of animal-derived products at point 2 in time.

As everyone knows, a correlation does not necessarily indicate causation.  But the problem with drawing the inference that vegan advocates have been drawing from the above finding goes well beyond the "post hoc ergo propter hoc" fallacy.  Enter "selection bias."  Selection bias is the reality that people will often self-select to engage in an activity at time 1 and whatever motivated that self-selection can also fully account for the same people's choice to engage in another activity at time 2.

Consider the following observational study.  I observe that one group of people spends a lot more money at the grocery store on luxury items such as truffle oil and saffron than other people do.  I decide to keep an eye on these people, because I want to know what the impact of all of this supermarket-spending might be.  Eight months later, I observe that this same group of people is embarking on much more exotic and expensive vacations in places much farther away from home than other people who did not spend as much money at the supermarket as this group did.  I conclude from these observations that buying expensive food at the supermarket helps enable people to be able to go on exotic and expensive vacations eight months later.  Wanting to go on such a vacation myself, I immediately begin to spend a lot more money on groceries.

This hypothetical example helps illustrate selection bias.  The act of spending a lot of money at the supermarket did not help to make an expensive vacation possible.  If anything, this act would appear to hinder one's ability to take an expensive vacation, all things being equal, by depleting one's bank account.  However, the people who choose to spend a lot of money at the supermarket are often doing so because they have a lot of money.  Their having a lot of money has caused them to feel free to spend a lot on groceries.  Then, eight months later, because they started with a lot of money, more than other people have, they also had enough money to pay for an expensive vacation that the rest of the population cannot afford.  If I were to take my observations as evidence that spending a lot on groceries enables one to take an expensive vacation, however, then I would probably end up undermining my own goal, and I would be doing so because I ignored selection bias.

A very similar dynamic seems likely to be in play when we observe that the people who purchase "humane" animal products at Time 1 are more likely than people generally to be purchasing only vegan products at Time 2.  Buying supposedly "humane" animal flesh and secretions is something that many people do when they are driven to try to act more mercifully and ethically toward their fellow sentient beings.  Years ago, before I became vegan, I tried to buy containers of cows' milk (or what would more accruately be called the "lacteal secretions produced by a mother for her baby calf") that said "grass fed" and "organic" on them, because I thought (erroneously, as it turned out) that this meant that the cows from whom the milk was taken (a) did not encounter human violence and cruelty during their lives and/or (b) were allowed to live out their lives in peace, eating grass, never having to be slaughtered.  Eventually, I learned that my beliefs were nonsense (nonsense amply cultivated by those who sell animal products), and I made the decision to become vegan.  It is hardly the case, however, that consuming (mis)-labeled animal products helped move me closer to veganism; if anything, it slowed me down by falsely assuring me that I was already "doing right by the animals" by avoiding "factory-farmed" products.

If you think about it, it is not at all surprising that people who feel moved to act ethically and mercifully toward animals will make up a disproportionate share of the people buying supposedly "ethical" animal products and a disproportionate share of the people becoming vegan.  A third variable -- consciousness about one's obligation to refrain from inflicting unnecessary suffering on other beings -- can fully account
for people's desire to do both things.  Similarly, if you observe someone buying a vegan frozen pizza, such as Tofurky, at Time 1, you may be more likely than otherwise to observe that same person adopting a dog from a shelter (rather than purchasing a dog from a breeder) at Time 2.  Yet no one would claim that eating a slice of vegan pizza causes a person to adopt a dog from a shelter.

Ordinarily, it might seem harmless when people assume that performing act 1 causes a person to perform act 2, just because we observe that the same people who perform act 1 later perform act 2.  But if the goal of citing this research about "humane" animal products is to alter the way that people conduct their advocacy, then it is anything but harmless.  If someone tells me that he buys all of his flesh from a "humane" butcher and all of his lacteal secretions from a "humane" dairy farmer, this tells me that he is the sort of person who cares about animal suffering and wants to do what he can to reduce it.  He has, howeve, been misled into thinking that what he is purchasing is the product of merciful treatment towards animals, when it in fact involves tremendous cruelty and harm to animals, and he is also (from a logical standpiont) less likely to become vegan than he was before, because he has managed to mollify his conscience by purchasing the "humane" product.  Indeed, that is presumably why suppliers create the "humane" product in the first place -- to keep animal consumers consuming animal products and to distract them from the actual humane alternative, vegan products.  The purveyors of "humane" products could hardly be expected to label their products "humane" if they believed that such labeling would lead people closer to veganism.

I know that there are many people who are far more interested in the phenomenon of selection bias than I am and who have much more to say on the subject.  I have nonetheless decided to write this post about selection bias, because I have felt an increasing amount of frustration upon hearing this claim about the counterintuitive results of "research" that should be altering the way animal advocates engage with the public. The research may tell us that the people who consume humane animal products are, all things being equal, more likely to become vegan than the general population.  But this plainly does not mean that consuming "humane" animal products moves people closer to veganism.  And if you are hoping to take an expensive, exotic vacation, I would strongly recommend against spending large amounts of cash at the supermarket between now and your vacation time.  You're welcome.

Thursday, June 26, 2014

Disagreeing to Agree on Recess Appointments and Buffer Zones

by Michael Dorf

The Supreme Court "unanimously" decided two cases today. In NLRB v. Noel Canning, the Court invalidated President Obama's use of the recess appointment power while the Senate was in pro forma session. In McCullen v. Coakley, the Court invalidated the Massachusetts 35-foot buffer zone around entrances to facilities (other than hospitals) where abortions are performed.

I put "unanimously" in quotation marks above because each case produced a 5-4 split with a heated concurrence in the judgment that read more like a dissent. Thus, in both cases, the majority consisted of the four liberals plus one of the two slightly less conservative conservatives. In Noel Canning, Justice Kennedy joined the majority opinion of Justice Breyer and in McCullen, CJ Roberts reprised his role from the 2012 Health Care Case, writing a majority opinion joined by the liberals. (In McCullen, Justice Alito wrote his own concurrence in the judgment rather than joining Justice Scalia's. Although Justice Alito's tone was less incendiary than Justice Scalia's, his grounds for disagreeing with the majority were largely the same.)

I'll have more to say about Noel Canning in my Verdict column next week. Here I want to make a brief observation about the lineups in these cases and then add two thoughts about the possible implications of McCullen.

1) Lineup:  There was much speculation in 2012 about whether CJ Roberts voted as he did in the Health Care Case for political/pragmatic reasons. That speculation tended to overshadow what should have been at least as much of a puzzle: Why did two of the liberals (Justices Breyer and Kagan) join the conservatives in striking down the Medicaid expansion as a coercive use of the Spending Power? The obvious answer for conspiracy theorists was this: Breyer and Kagan made a deal with Roberts; they would vote to invalidate the Medicaid expansion in exchange for his vote to sustain the individual mandate under the Taxing Power, which would give him something valuable while also preserving the Court's institutional legitimacy as non-political.

I don't think much of the conspiracy theory. My observations both as a law clerk a long time ago and as a Court watcher ever since lead me to think that Justices do not explicitly trade votes, nor do they even permit themselves to believe that they are implicitly trading votes. Having said that, however, I do think that there is strategic voting on the Supreme Court, which is perhaps best explained by subconscious mechanisms.

In any event, for the moment let's run with a political model. The idea would be that one or more of the liberals would have preferred to uphold the Massachusetts law in McCullen, but realizing that they didn't have the votes for that, they made a deal with CJ Roberts: He would get a unanimous decision invalidating the buffer zone and they would get a ruling that left states and localities with some flexibility to erect buffer zones in future cases. Likewise, in Noel Canning, we might assume that one or more of the liberals would have liked to uphold the President's use of the recess appointment power, but realizing that they lacked the votes for that, they made a deal with Justice Kennedy: He would get a unanimous decision invalidating these particular recess appointments and they would save the recess appointment power for future cases.

Even putting aside my enormous skepticism about the possibility of such deals, I find the argument for a deal in Noel Canning even less plausible than the argument for one in McCullen. While the Chief Justice has some interest in unanimity, it's hard to see that Justice Kennedy does. And even in McCullen, the unanimity that the Chief got was pretty hollow, with Justice Scalia going after him hammer and tongs. So I'm left thinking--in both cases--that the lineups simply reflect the Justices' respective views.

2) Implications of McCullen

a) The fundamental disagreement between the majority and the concurrences in the judgment concerned the question of whether the Massachusetts law was "content-neutral." Because it regulates speech on sidewalks--a "traditional public forum"--the precedents require that it must be content-neutral to be valid. The majority says the law is content-neutral because on its face it is not directed at speech and it addresses speech-neutral concerns--namely, "public safety, patient access to healthcare, and the unob­structed use of public sidewalks and roadways." The concurences in the judgment say that the law is both content-based (because it singles out facilities that perform abortions and thus abortion-related speech) and viewpoint-based (because various exceptions for facility employees, including "escorts", mean that within the buffer zone patients can be told to enter the facility and have the abortion but not to change their minds and forgo the abortion).

Despite finding that the law is content-neutral, the majority nonetheless invalidates it on the ground that it is not "narrowly tailored," a further requirement for a law that regulates speech in a public forum. Although the concurrence pooh-poohs this portion of the majority opinion as easily evaded, to my mind, this is a potentially far-reaching doctrinal development. Prior to McCullen, the narrow tailoring prong of the test for evaluating content-neutral time, place and manner restrictions of speech in a public forum used the language of narrow tailoring but applied that test in a very deferential way. The McCullen majority notes that distinction as follows:
Such a [content-neutral] regulation, unlike a content-based restriction of speech, need not be the least restrictive or least intrusive means of serving the government’s interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. [Internal quotation marks and citations omitted].
Thus, the version of "narrow tailoring" applicable to content-neutral time, place and manner regulations of speech has traditionally looked a lot like what is sometimes called "intermediate scrutiny." But as I noted quite a few years ago, even that is an overstatement. Although lower courts have sometimes applied this version of narrow tailoring to invalidate content-neutral laws, the Supreme Court itself rarely does so. To the extent that McCullen signals a more robust version of the narrow tailoring requirement for content-neutral time, place and manner restrictions, that may be a significant development in the Court's free speech jurisprudence.

b) Meanwhile, I confess that I am of two minds regarding the majority's conclusion that the law should be regarded as content-neutral, for reasons that track the arguments set forth by Justice Scalia in his concurrence in the judgment. In our forthcoming book, tentatively titled Beating Hearts: Abortion and Animal Rights, Professor Colb and I explain that we do not think that people generally have a right to remain ignorant of the consequences of their actions. We make the point with respect to both abortion and animal rights in a chapter that considers the use of visual imagery in the pro-life and animal rights movements. Of course, there is a point where attempts to inform people who clearly do not want to be informed become harassment, and so there must be limits, but one should not assume that every effort to shield people from information is an effort to protect their safety.

I do not read either the majority or the concurrence in the judgment in McCullen as disagreeing that the right line distinguishes between shielding people from information (impermissible) and shielding them from harassment, assault, etc. (permissible). The disagreement on the Court appears to be over the question of how closely to scrutinize the state's assertion of a speech-neutral reason. The majority accepts that the Massachusetts legislature was motivated by concerns about congestion, ingress and egress, and safety, whereas the concurrence in the judgment contends that these were not the real motives of the legislature; shielding women seeking abortions from anti-abortion messages was the real motive, Justice Scalia claims.

In addition to wondering whether the majority too readily accepted the state's assertion of content-neutral grounds for the particular Massachusetts law, I worry a bit about the application of a too-deferential approach in other contexts. In particular, various state legislatures have enacted or proposed "ag-gag" laws that forbid various forms of documenting what happens to animals on farms. The actual purpose of these laws is to prevent animal rights and animal welfare activists from exposing how animals are treated but the laws could potentially be justified by generic references to safety, privacy, and property. Under the majority approach in McCullen it is possible that such laws would be deemed content-neutral because of these generic invocations, despite their implausibility as an actual account of the legislators' purpose.

Ultimately, however, it may not much matter (in the context of abortion, animal exploitation, and other areas) that McCullen affords substantial deference to state assertions of content-neutral interests if, as suggested by the narrow tailoring analysis in McCullen, the Court follows through by demanding a reasonably tight fit between those asserted interests and the actual operation of the law. Honestly applied, that analysis would invalidate ag-gag laws.


Okay, that's all for now.  As this is my second post today, there will be no new post tomorrow. Next week, there will be a new post early Monday morning, probably followed by a mid-day post on Hobby Lobby.

Technology and Methodology in Aereo and Riley

by Michael Dorf

The SCOTUS decided two technology cases yesterday, each of which may be more interesting for what it says about methodological issues than for what it says about how the Court evaluates technology.

1. ABC v. Aereo: In my prior post on this case, I said that I thought the crucial question was the one identified by Judge Chin in the district court: whether there is any non-copyright-evading reason for Aereo to structure its technology and business the way it does. I suggested an analogy to the substance-over-form doctrine of tax law. The majority appeared to be thinking along the same lines. By a vote of 6-3, the Court, per Justice Breyer, ruled against Aereo on the grounds that Aereo's retransmission of broadcast television is a "public performance," notwithstanding the fact that it only retransmits one subscriber at a time through a dedicated tiny antenna and storage.

The lineup in Aereo is interesting. The majority consists of the liberals plus CJ Roberts and Justice Kennedy, with a dissent by Justice Scalia, joined by Justices Thomas and Alito. If we code CJ Roberts as just slightly less conservative than Justice Alito (which I think is fair), then the case can be said to have divided the Court ideologically left/right. But that makes little sense. Conventionally, it is the left that argues for less protection for intellectual property, through the open source movement, "copyleft," etc. So what gives?

Well, for one thing, the left/right coding of debates over IP is imprecise. For example, Justice Ginsburg--perhaps influenced by her daughter (and my former colleague), copyright scholar Jane Ginsburg--takes a pretty robust view of what are sometimes called the moral rights of authors, and thus ends up as a copyright hawk. (See, e.g., her opinion in Eldred v. Ashcroft, from which both Justices Stevens and Breyer dissented.)

Perhaps more directly to the point, I think that Aereo divided the Court methodologically. There's some disagreement between the majority and the dissent over whether Aereo's business is more like a cable tv provider (majority) or a "copy shop that provides its patrons with a library card" (dissent). But the real divide seems to be over familiar questions of statutory interpretation. The majority says:
Considered alone, the language of the Act does not clearly indicate when an entity “perform[s]” (or “transmit[s]”) and when it merely supplies equipment that allows others to do so. But when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo’s performs.
That's good old-fashioned purposivism, here accepted by six Justices. But the three Justices who dissent are the three most hostile to purposivism (although Justice Alito is, in other contexts, less hostile to purposivism than are Justices Scalia and Thomas). Thus Justice Scalia responds with the textualist creed: "It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes."

Accordingly, the lineup in Aereo is best understood as reflecting purposivist versus textualist sympathies on the Court.

2. Riley v. California: Together with United States v. Jones, Riley displays a cross-ideological consensus on the SCOTUS for using the probable cause and warrant requirements of the Fourth Amendment to protect privacy against threats from new techonology. In Jones (decided in 2012) the Court unanimously treated continuous GPS monitoring of a car as a "search" requiring probable cause and a warrant, whereas in Riley, the Court unanimously holds that police may not routinely search the contents of a mobile phone after arresting a suspect, placing the mobile phone outside of the warrant requirement exception for a search incident to arrest.

The news, if there is any, is that the methodological differences among the Justices in this area appear to be narrowing. Although Jones was unanimous in result, the Court divided over rationale. For Justice Scalia and the majority, the case turned on extrapolation from Founding Era tort law, wheras for Justices Alito, Ginsburg, Breyer, and Kagan, it turned on the more modern approach regarding reasonable expectations of privacy.

Riley, by contrast, is nearly fully unanimous. The Court gets there by the following nifty move in the majority opinion by CJ Roberts:
Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
Thus, the Chief Justice gets Justices Scalia and Thomas onboard by making the functional analysis a backup to be consulted only where there is no "precise guidance from the founding era." And because the founding era will virtually never provide more than analogical guidance where new techonologies are involved, the Chief's move makes the relevant jurisprudence functional rather than historical.

The only hiccup is the partial concurrence/concurrence in the judgment of Justice Alito. He first says that he thinks the search incident to arrest doctrine was not always about safety of the officer, but he doesn't really run with that. His more interesting statement is he says that he might be prepared to reach a different conclusion if Congress weighed in with a well-crafted alternative. Although Justice Alito cites no academic authorities for this proposition, it sits at the intersection of two arguments: one by Orrin Kerr to the effect that the Court ought to be cautious and defer to Congress in the face of new technology (critiqued by Professor Colb here); and another, by Barry Friedman and me, arguing that in the context of the Fifth Amendment Miranda warnings, judicial remedies might be deemed default principles that can be superseded by Congress, where the latter provides alternative remedies that are at least as effective as those they supersede. It would be interesting to see how deferential to Congress the Court would be under Justice Alito's approach, but because he was the only Justice proposing it in Riley, it looks like we won't find out.

Wednesday, June 25, 2014

Not Suitable For Mediation?

By Sherry F. Colb

My Verdict column for this week discusses mediation as a modality for dispute resolution, a modality in which I have begun training for volunteer work.  The column examines some ways in which mediation offers more than litigation does and  may also reflect a more optimistic and empowering perspective on human interaction than the litigation approach does.  In this post, I want to focus on areas in which mediation might be viewed as inappropriate.

Let me begin by recalling my first encounter with the idea of mediation.  As a law student, I joined the Battered Women's Advocacy Project, in which I had occasion to assist women seeking restraining orders against their batterers.  During my training, one of the things I learned was that judges who faced a woman seeking a restraining order sometimes directed the woman to first try mediation.  At the time, I did not know what mediation was, but I was told  that mediation is completely inappropriate for battered women and their batterers because of the power imbalance between a violent abuser and his victim.  Upon hearing a judge's inclination to order mediation, I was directed to argue against this approach.  Because this was my first exposure to the idea of mediation, I came to think of it as something that works only in the narrow (or perhaps even non-existent) circumstance in which equally powerful parties have a dispute.

Last week, I learned much more about mediation.  In the beginning of the training, our teacher asked us whether we thought mediation would be appropriate for all disputes.  I immediately brought up the battered woman in conflict with her batterer as one context in which it mediation would be ill-advised.  This turned out to be an uncontroversial proposition.  As I discuss in my column, the practice of mediation has various core values, and one of those values is safety, while another is voluntariness.  To the extent that one of the two parties is physically frightened of the other's ongoing violence, there can be no safety, and anything the victim says will likely be driven -- at least in part -- by the desire to mollify her abuser and avoid further abuse.

Beyond putting the case of victims of violence to one side, my mediation training presented me with the surprising notion that parties can mediate despite an apparent (or actual) power disparity.  Mediators-in-training talked about our inclination to give more support to the less powerful party, whether the apparent disparity concerned race, sex or gender, sexual orientation, financial resources, education, or some mix of these and/or other dimensions of inequality.  In mediation, however, our job is to remain as impartial as we can and to have faith the in the parties -- despite their disparate positions -- to direct their own conversation, with mediators providing equal support to both.  We were told that leveling the playing field would not be our job (though, like the parties, we could decide to end a mediation if we felt too uncomfortable with the parties' interpersonal dynamic to continue).

Initially, I resisted the idea of standing on the sidelines while one party seemed to be bullying the other.  If one person spoke much more than the other, then why not turn to the other and say "Do you have something to say too?" or "Why don't we hear from you now?"  But our instructors reminded us that relationships between individuals are far more complicated than we can pretend to know from our seeing the parties and observing some of the disparities between them.  Power dynamics too can be complicated, and the person who says almost nothing might be the one who is less invested than the other in working things out and who therefore, in that one sense, is more powerful and less vulnerable in the conversation.  Stated differently, power disparities may not be what they seem to us.

Furthermore, as mediators, we do not become permanent fixtures in the lives of the disputants, available to step in and "rescue" the less powerful party whenever the more powerful party wields his privilege.  To use the metaphor of a river, we step into a river that flowed long before we came along and that will continue flowing long after the brief moment in which we stepped in.  Instead of trying to "save" the weaker party, then, mediation theory suggests that we can be far more productive and helpful by remaining equally present to each party and by supporting the conversation that the two (or more) of them are able and willing to have with each other.  By doing so, we not only earn the trust of the parties, but we permit each of them to better understand the others' perspective (in a way that is much harder to do when one is listening to an "advocate" or adversarial representative of the other side) and to communicate his or her own feelings and needs in his or her own way.

In one sense, the mediation approach may seem conservative.  Rather than intervene in social inequalities, it leaves the status quo in place and appears to act "as if" everything is fine.  I think this appearance is misleading, however.  We can address social injustices through many routes, including legal change, and legal change will necessarily become part of the backdrop of any conversation that people in mediation will have with each other.  For example, if the law requires reasonable accommodation for a person with disabilities, then the existence of the law shifts the power balance between an employer and a disabled employee without the mediator having to do anything.

Conversations, however, are by their nature going to mirror the relationship between the parties to it, and that relationship will thus inevitably carry baggage that includes racial, economic, and other disparities between people. Nonetheless, the ability to sit down and have a conversation with someone -- even and perhaps especially with someone more powerful than oneself -- while a neutral party steadfastly and equally supports both parties to that conversation, can be enormously empowering for all concerned.

One premise of transformative mediation, put in colloquial terms, is that people generally are motivated to (a) experience a sense of mastery and competence and self-determination in their dealings with others, and (b) treat others fairly and recognize others' needs and interests in a respectful fashion.  More simply, people want to avoid being either a sucker or a jerk.  With those motives in place, mediation can allow people to pursue self-empowerment and consideration of the other in their conversation, and those pursuits are worthy ones regardless of what one's view of social justice might be.

As is probably apparent by now, mediators will often mediate between parties who hold dear very different values from those of the mediator.  The mediator may believe in a strong social safety net, while the parties reject it. The mediator might favor abortion rights, while one or both parties to mediation are pro-life.  This difference between the mediator and the parties, like power differences between the parties themselves, are unavoidable and need not detract from the process.  Impartiality means that the mediator occupies a role and persona that differs from her everyday role and persona.  And it is the willingness to do this -- to step outside of herself and occupy, by turns, the worlds of two (or more) very different people -- that sets the stage for transformations in relationships that ultimately can yield a more peaceful world.

Tuesday, June 24, 2014

A Potential Implication of the Greenhouse Gas Case for Hobby Lobby

by Michael Dorf

Yesterday's SCOTUS ruling in Utility Air Regulatory Group v. EPA has implications for such matters as the survival of life on planet Earth. And one suspects that things aren't going to go so well for us Earthlings when Justice Scalia begins his plurality opinion by stating that the EPA "recently set standards for emissions of 'greenhouse gases' (substances it believes contribute to 'global climate change') from new motor vehicles." By using the phrase "it believes", Justice Scalia signals that others do not believe that these substances contribute to global climate change. Indeed, by putting both "greenhouse gases" and "global climate change" in scare quotes, Justice Scalia suggests that the whole subject matter is nonsense. It would be as if the Court were to confront a regulation by the Zombie Violence Prevention Agency and begin its opinion thus: "The ZVPA recently set standards for the containment of 'zombies' (animate corpses that it believes constitute an 'undead menace' to the living)."

Things continue to go badly for Earthlings as Justice Scalia explains why EPA was neither obligated nor permitted to adopt its "Tailoring Rule," under which it regulated greenhouse gases as pollutants, but using a much higher threshold than the statute requires for other, more conventional, pollutants. Adding in the votes of Justices Alito and Thomas--who think the Court was wrong in Massachusetts v. EPA to find that CO2 counts as a "pollutant" at all--to the plurality of Justice Scalia, CJ Roberts, and Justice Kennedy, there is a majority opinion for rejecting the Tailoring Rule: namely, the five most conservative Justices. And so the case looks like another ideological/political breakdown, with the five Republican appointees voting to reject EPA regulation of greenhouse gases and four Democratic appointees voting to uphold it.

But then, miracle of miracles, Justice Scalia, CJ Roberts, and Justice Kennedy mostly save the day for the EPA by upholding EPA regulatory authority under the "anyway" argument: If a source is regulable "anyway" because it produces conventional pollutants above the statutory thresholds, then EPA can also regulate its greenhouse gas emissions, and can do so using the thresholds of the Tailoring Rule. Consequently, EPA gets most of what it wants: 83% according to the plurality's recounting of the government position. How full or empty is that cup? The NY Times called the ruling a victory for the Obama EPA, while USA Today called it a partial defeat.

I'll let readers decide for themselves what they think. Whatever the implications for the environment, the case could also have an implication for Hobby Lobby. In the part of the opinion that rejects direct EPA authority for the Tailoring Rule, Justice Scalia--joined by all of the conservatives--explains that the word "pollutant" can mean one thing for purposes of general regulatory authority but something else with respect to specifics. Here is the key passage:
To be sure, Congress’s profligate use of “air pollutant” where what is meant is obviously narrower than the Act-wide definition is not conducive to clarity. One ordinarily assumes “‘that identical words used in different parts of the same act are intended to have the same meaning.’” Environmental Defense v. Duke Energy Corp., 549 U. S. 561, 574 (2007). In this respect (as in countless others), the Act is far from a chef d’oeuvre of legislative draftsmanship. But we, and EPA, must do our best, bearing in mind the “‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000). As we reiterated the same day we decided Massa­chusetts, the presumption of consistent usage “‘readily yields’ ” to context, and a statutory term—even one defined in the statute—“may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.” Duke Energy, supra, at 574. 
Now recall that one issue in Hobby Lobby is whether the term "person" in the Religious Freedom Restoration Act (RFRA) includes a corporation.  The Court could decide the case without addressing this issue, but it might play an important role. As I discussed in two prior posts (here and here), the Dictionary Act erects a presumption that when a statute uses the term "person" it includes a corporation, unless the context implies otherwise. And as was highlighted in the oral argument by Justice Alito, we would ordinarily think that certain business corporations--a seller of kosher or halal foods, say, or a corporation that prints Bibles--are naturally understood as being capable of having a religion.

Justice Alito's point seemed to be that therefore a corporation is a person for purposes of RFRA. But all that follows is that a corporation can be a person for purposes of RFRA. Just as "pollutant" can be broader or narrower in different contexts, so "person" can be broader or narrower in different contexts: In some contexts, it might include all corporations; in other contexts it might include no corporations; and in still other contexts, it might include some corporations. The language quoted above from yesteray's EPA ruling, if taken seriously in Hobby Lobby, could thus support at least two different lines: one that distinguishes between closely held corporations and publicly traded ones (which would tend to favor Hobby Lobby); and another that distinguishes between corporations organized around a religious business and those that are not (which would tend to disfavor Hobby Lobby).

Do I think that the EPA ruling means that the conservatives are going to slice "person" finely in Hobby Lobby? Not necessarily. But the principle could well apply.

Monday, June 23, 2014

Living Like Kings and Not Loving It (The Inequality List, Part 2)

-- Posted by Neil H. Buchanan

Earlier this month, in "A Taxonomy of Excuses for Poverty and Inequality," I offered a draft version of the series of arguments that conservatives have offered over the years in response to liberals' calls for redistributive economic policies.  The list is set up as a series of fallback arguments -- "A, but if not A, then B, and if not B, then C," and so on.  I have already received some helpful suggestions to add to the list, and I invite further thoughts from readers.

Although I made it clear in that post that I am unpersuaded by the arguments that I was summarizing, that post was more of a listing exercise than anything else.  Having taken that initial step, I now plan to write a long series of posts in which I address the various list items, exploring the theory and evidence in some detail regarding each conservative claim.  This series of posts will be open-ended and of no planned length, and I suspect that I will add to the series frequently over the next year or longer, interspersed with posts on other topics as they arise.  With the initial "taxonomy" post being Part 1, this post is accordingly Part 2 of The Inequality List.  (I have also edited the title of the original post to reflect this new plan.)

Some readers might find it hard to believe, but the first claim on the list is that there is no problem in the first place, that is, that "poverty does not exist."  Surely, one might imagine that Professor Buchanan is building a straw man.  No one seriously claims that there is no problem, or that there is no poverty, do they?!  But no, many conservatives really do make this argument, in varying forms.  Most recently, Fox News's many interchangeable talking heads have spent several years trying to prove that poor Americans are not really poor.  Because, you know, they have refrigerators!  And cellphones!!  And they are not all starving to death.  How can you call them poor?

This argument, in a less embarrassing form, essentially boils down to a statement of relativism and, for lack of a better term, slippery-slopism.  The idea is that one cannot really call someone poor, if it is possible to identify something that they have that is valuable.  If they did not have that thing, then they would be poorer, which means that they are not currently poor.  It is tempting to say that the only thing that would qualify as poverty in this framing is absolute privation, but as I will demonstrate below, even that would not be enough.

First, however, it is important to note how this argument works.  Frequently, it becomes part of a  dance that allows a person to claim to care about human misery, while exculpating us from having to do anything for anyone else.  The dance is a simple two-step: (1) Americans must solve our problems at home first, but (2) if we just look at how much better the poor have it in America than, say, in the poorest parts of Africa, we can see that there is no problem to solve here.  Our poor people are not poor, but the really poor people are not our problem.  It is a tidy argument, in its depraved way.

Although less explicit than in its Fox form, the argument in step (2) still relies entirely on the idea that a problem can be defined out of existence by trying to say that "poor" must mean something absolute, and then showing that there are no absolutes.  And honestly, once one has decided that it means something to say, "It could be worse," then there is no stopping.  People living on $2 a day in Somalia, for example, could be living on $1 a day, so how can we call them poor?  Besides, most of them are living better lives because various diseases have been wiped out, so that even the poorest people are much less likely to die prematurely of, say, the plague than they might have at another time.

Which brings me to the title of this post.  The most interesting relativist move here is in comparing the living standards of people alive today to people in earlier eras.  This argument comes in many forms, but the first time I heard it (about thirty years ago), the claim was that poor people today are not merely better off than poor people were a hundred years ago, but they are actually living more comfortable lives than kings lived in Europe for centuries.  How can we call poor people poor, when they have access to things that Louis XIV could not have dreamed about?

Any initial appeal of that logic dissipates rather quickly, precisely because the relativist move unravels the entire argument.  If the relevant comparison is what people would have enjoyed in the Seventeenth Century, why stop there?  Maybe a person is not poor unless they are worse off than someone who lived before the Bronze Age.  But why stop there?  There might have been people at the dawn of time whose children were carried off by saber-toothed tigers.  No one today, no matter how poor, has to worry about that.  Problem solved!  (Or, more accurately, no problem!)

As in so many things, the absurdity of this style of reasoning has been captured by the Monty Python troupe.  In one sequence in "The Life of Brian," the lead character is thrown into a dungeon, only to discover a gray-bearded, grizzled man who has obviously been in the dungeon for years.  When the guard spits in Brian's face, the old hand becomes jealous and says mockingly, "Oh, what I wouldn't give to be spat at in the face!"  He later adds, "I've been here five years! They only hung me the right way up yesterday!"  Brian, he suggests, will "probably get away with crucifixion."

The relativism point, therefore, ends up saying that, no matter how bad someone has it, it could always be worse.  Even if one is going to die, one could die sooner or in a more gruesome fashion.  Always look on the bright side of life!  As a reason to do nothing about people's situations, however, this makes no sense.  It is true that the definition of poverty will actually be a matter of relative inequality and relative privation, but so what?  It certainly should not be acceptable to say that, although a person was born today, when it is quite possible to live much more comfortably than in previous times, "poverty" can only be defined by the standards of rich people in other eras.  Yes, kings relieved themselves in chamber pots, and many poor people today can use flush toilets.  That is a statement of technological progress, not an excuse to allow people to live lives of misery by today's standards.

The problem with this line of reasoning is not merely the amoral relativism, however.  The "living like kings" distraction also proves far too much.  That is, if the argument is that we should do nothing, so long as the government arranges society in a way that allows everyone to enjoy more creature comforts than Genghis Khan experienced, then it must be acceptable for the government to reorganize society in any way that it likes, too, so long as it meets that low bar.

So, if the government were actually to make the current rich and the current poor trade places ("punishing success" in a quite literal way), the formerly rich could have no complaint, because they too would be living better than medieval kings and princes.  Especially given that the government could do such a thing without even using tax or spending policies, because it can simply change the various laws that enable the economy to function to the differential benefit of people in various situations, then there could be no objection to even the most aggressive redistributive plans.  We would not be talking merely about the standard modern liberal redistributionists' preference to compress after-tax income and wealth, without reordering where people sit in society, but actually doing anything that comes into the government's collective mind to move people up and down in the pecking order.

In short, the argument that "there is no poverty," because poverty is ultimately relative, is intended to say that people who worry about supposedly poor people should stop trying to get the government to reorganize its rules to improve the lot of the least well-off, because things could be worse.  There are, however, plenty of ways in which the government could set up the rules, and in which the resulting group of have-nots could be told that it could be worse.  "Sure, you were rich last year, and now you feel poor.  But hey, you're not really poor, because William the Conqueror had it worse than you in a lot of ways.  Suck it up!"

To be very clear, I am not at all arguing in favor of changing the laws to make the rich poor and the poor rich.  I do remain committed to the idea of raising up the least among us, and to limiting the extreme advantages conferred by wealth.  But if the argument is that everything is relative, then everything really must be relative, and anything that we do short of putting people back into "continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short," must be acceptable.  Except that it is always possible for life to be ever more solitary, poorer, nastier, more brutish, and shorter.  Somehow, I cannot imagine that people would be counting their blessings that things could always be worse.  In any event, that is hardly a basis for public policy.

Friday, June 20, 2014

More Thoughts on the Disposability of the NYT Op-Ed Roster

-- Posted by Neil H. Buchanan

In my Dorf on Law post last Friday, I argued that all of the twice-a-week columnists for The New York Times op-ed page should be fired.  Further, I suggested that they should not be replaced by better permanent columnists, even though my reason for wanting to dump the existing group is that so many of them are so bad.

If it were simply a matter of improving the quality of the home team, it would have made sense to keep the acceptable-to-good (which, in my view, would be limited to Charles Blow, Gail Collins, and Paul Krugman) and find replacements for the others. That was apparently what Salon's Alex Parreene was arguing, when he wrote: "Blow up the Times Op-Ed page, and start again!"  Instead, I questioned why the Times would even want to maintain a group of regulars, virtually none of whom have any known expertise, to continue to write stale commentary, when it would be quite easy to print guest commentary in their places.

A commenter on my post alerted me to a very nice reply to my piece on PrawsBlawg by Professor Paul Horwitz (of the U. of Alabama's Law School).  Professor Horwitz offered some further thoughts that deserve serious consideration.  He did not disagree with me on my larger point, but he did probe a few of the pieces of my argument.  Having had almost a week to think about his questions and comments, I will do my best to respond here.

I especially like Professor Horwitz's explanation of how the Times selects its columnists.  Whereas I, ever the recovering economist, imagined in my reductionist way that it was all about selecting columnists to sell newspapers, Professor Horwitz points out that there are very non-economic reasons why people land on the op-ed page.  For example, he says that the op-ed page is often the consolation prize for the losers of internal promotion battles.  His cynical explanations make a lot more sense than mine, and I am happy to be enlightened.

More substantively, although Professor Horwitz does not directly raise this point, I should be clear on the threshold question of why this subject matters at all.  When I wrote my blog post last Friday, after all, I thought of it as a bit of a relaxing digression, clearing my head from all of my recent writing about inequality, the corruption of economics departments, and so on.  Professor Horwitz, reading my vibe correctly, called it a "fun post."

Yet I do think that this is an important matter, even though there is a very strong argument that the op-ed world matters not at all.  Consider, for example, the question of Paul Krugman's influence.  Here is a man, the only economist ever to win the top two prizes in his field, who is given a prized platform from which to argue about economic policy.  His columns are read by millions of people.  He happens to possess writing skills that make him uniquely capable of capturing complicated ideas and explaining them in persuasive, even catchy, prose.

Moreover, Krugman sits on this perch at a time when his advice is most needed, during and after the greatest threat to the global economy since the Great Depression.  He has spent that time repeatedly explaining why the policy responses in the U.S. and Europe have been almost universally wrong-headed and disastrous, and he has repeatedly laid out a better path, relying on evidence and logic in a world in which his opponents offer neither.

And what impact has he had?  Europe's elites dismiss him, Republicans revile him, and the Obama Administration pointedly ignored him.  If Krugman cannot leverage his NYT slot to make a difference, how does any of it matter?  Maybe having Maureen Dowd imagine internal conversations in politicians' heads is no worse than anything else.  Maybe the op-ed page is all about entertainment, with any thought of real-world impact a conceit of people who think that arguments matter, or at least that they ought to.

Even if that were true, however, it is not clear why we would have to settle for bad entertainment.  If we are sitting in a virtual waiting room, can we not at least ask the receptionist to turn off the muzak and play some decent music?

But it really is not true.  Krugman's impact has not resulted in 180-degree shifts on policy, but he clearly changed the conversation.  Policies really have changed over the last few years, with the European Central Bank acting more like a central bank, the Obama people backing off of austerity, and even the U.K.'s government dialing back on the sadism.  We cannot know how much of this was connected to Krugman's influence, but I suspect that it is not negligible.  (I am confident that his impact would survive being fired by the Times.)

On the negative side, consider the influence that the usual suspects have on the national conversation.  My post this past Friday began with a lament about a column by Frank Bruni, who joined the "deficits are destroying our children's and grandchildren's futures" chorus.  This is one of the best examples of the damage that generalists do, when they are expected to opine twice-weekly about something.  They invariably end up saying pompous, safe things within the conventional wisdom, reinforcing nonsense about which they know nothing.  Most of the NYT columnists have written something along the lines of what Bruni wrote last week, and the drip, drip, drip of the conventional wisdom becomes ever more entrenched with each repetition -- no matter how well Krugman argues the contrary position.  We are still living in an austerian world, with ignorant columnists filling space by saying what other people like them have said many times before.

In short, I think that there is a negative impact from having a half dozen or so people put in positions from which they can set the policy agenda, or at least reinforce damaging orthodoxy.

Professor Horwitz points out, however, that there is much more to the NYT op-ed world than merely this rotating group of columnists.  There is also the online world, which includes a lot more pieces by non-NYT writers.  This is obviously true, but I do not think that it undermines my larger point.

First, the printed page still matters.  Maybe not for long, but at least for now, the printed version has much more impact.  Just as a bit of anecdotal evidence, I can report that I have been cited in pieces on the Times's electronic pages, and I have even been published in the "Room for Debate" feature on the Times website, but I have never been contacted by anyone following those mentions.  When my name was dropped in an op-ed piece in the printed newspaper, however, I heard from friends who had disappeared from my life years ago.

For those who do not want to rely on one anecdote, however, I can make the argument in the form of a question: If the Times told Thomas Friedman that it was going to stop printing his column in the hard-copy newspaper, moving him (without a pay cut) to the online site only, would he view that as a good thing or a bad thing?  Exactly.

Second, the non-print op-ed site of the Times is just an expanded version of the print page, with another set of usual suspects mixed in with guest commentary.  Some of these guys show up on the printed page every now and then, the worst example recently being Timothy Egan's uniquely moronic "The Commencement Bigots."  Egan, Roger Cohen, Steven Rattner, and so on are just shadow Brookses and Kristofs.  As on the printed page, there are some whom I like (June Lapidus, David Firestone), but the whole enterprise is still the same: People with no apparent qualification filling space because they have to fill space.

Which brings me to an important question that Professor Horwitz raises: "It's not clear to me whether the replacements he envisions would only be experts opining on subjects ostensibly within their expertise, or whether he would also run a mix of opinionated generalists who would at least be more varied and surprising and entertaining than the existing limited stock of permanent columnists."  I definitely favor the former.  Now, this will still mean that the Times would be free to pick "experts" who say things that make no sense.  For example, I recently took issue with a guest piece by a scholar who tried to argue that inequality is no big deal because of income mobility.  Even though I took strong exception with that piece, it was a vast improvement on, say, finding yet another column in which Gail Collins asks, "Are you with me, people?"

More generally, however, my suggestion could be undermined by the simple fact that the unseen powers at the Times, who currently tolerate the low quality of their op-ed page, would simply follow my advice by dumping their high-profile columnists, but replacing them with guest columns from safe and boring alternatives.  I can only say that even that could not be any worse than what we have now.

Finally, Professor Horwitz wrote: "I cannot resist taking issue with a couple of his judgments along the way. Pace Buchanan, losing Charles Blow would not be a blow. By the time he left, Frank Rich was not a loss. (I am surprised that Buchanan laments stale, predictable column writing but exempts these two.) And he's wrong about Manohla Dargis."  I can completely understand that this is a matter of personal preference.  I think Blow is saved by his efforts to try to report and analyze polling data, but maybe that is just the stats nerd in me coming out.  Rich never bored me, but he might not be everyone's cup of tea.

On the other hand, I think Professor Horwitz's keyboard must have malfunctioned when he was typing that last sentence.  Somehow, "And he's completely right about Manohla Dargis," was rendered as "And he's wrong about Manohla Dargis."  Notify tech support!

Thursday, June 19, 2014

Justice Scalia's Stand Against "Degenerate" Music

by Michael Dorf

Dissenting from the denial of certiorari in Elbrook School Dist.  v. Doe (scroll down), Justice Scalia, joined by Justice Thomas, began thus:
Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.
Justice Scalia's analogy conflates two different meanings of the word public. The word sometimes refers to the government. Thus, cases that limit the expression of religious views on public property, i.e., government property, do so because some such expressions risk conveying the message that the government is endorsing a religious view. But "public" can also mean something like the opposite of private. And nobody thinks--as a matter of constitutional law--that religion must be a personal matter in the sense that individuals are forbidden from expressing their religion in public, even on public property, so long as it is clear that they are speaking for themselves rather than for the government.

So when Justice Scalia says that individuals have at least as much right to express religious views in public as people have to sing Let It Be or to play The Firebird in public he is expressing a truism with which no one disagrees.

It does not follow, however, that government religious expressions raise no more constitutional concerns than do government endorsement of rock music or Stravinsky. That's because the First Amendment forbids an establishment of religion, but no constitutional provision forbids an establishment of music. A New Jersey law declaring Born to Run the official state song might be a good idea or a bad idea (okay, it's a great idea), but a New Jersey law declaring Roman Catholicism the official state religion would violate the Establishment Clause.

As I noted in my post on the Town of Greece case, Justice Thomas thinks otherwise. He believes that the Establishment Clause forbids the federal government from interfering with a state establishment and maybe forbids the federal government from enacting a coercive establishment itself. Although Justice Scalia did not join the key parts of Justice Thomas's concurrence in Town of Greece, he may now agree with it, because he writes in his Elbrook dissent that "the First Amendment explicitly favors religion and is, so to speak, agnostic about music." One can indeed read the Free Exercise Clause of the First Amendment to explicitly favor religion, but unless one takes something like the view that Justice Thomas takes in Town of Greece, the First Amendment also explicitly disfavors religion.

Some observers thus understand Justice Scalia's Elbrook dissent to read the Establishment Clause out of the Constitution, and taken on its own, the statement that the First Amendment favors (but does not also disfavor) religion could be said to do just that. But I don't think Justice Scalia meant to go that far. Instead, I believe that his comparison of religion to music shows that even he thinks that the Establishment Clause plays some role in limiting state and local government. But the threshold for him is very high. He means the religion/music analogy to illustrate his view that Town of Greece and other cases demand coercion as the threshold for an Establishment Clause problem, not mere offense. Mere offense may connote endorsement of religion by government, but Justice Scalia thinks that such endorsement is constitutionally permissible.

Yet the analogy seems inapt for that purpose as well. Is Justice Scalia really offended by rock music and Stravinsky? His elaboration on the point demonstrates annoyance, but annoyance does not necessarily equal offense.

I certainly can imagine that Justice Scalia might be offended by the lyrics of some rock songs: Let's Spend the Night Together, for example, or, to use a loose definition of rock (as I'm guessing Justice Scalia doesn't distinguish genres of pop music), Wiggle might offend his views about appropriate sexual morality. But Stravinsky? I can see how Justice Scalia might not like Stravinsky; and that therefore having to listen to The Rite of Spring while riding on a municipal bus would annoy him; but even in the fantasy world in which Justice Scalia rides on the DC buses (which play Stravinsky!), why would he be offended rather than merely annoyed by the music he dislikes?

To be offended by music is to be offended on behalf of music. The sensibility goes something like this: Great music--as in the symphonies of Beethoven or the operas of Verdi--is the culmination of centuries of civilization. When people choose to listen to atonal noise rather than the classics, they degrade themselves. Their tastes are primitive, base, degenerate.

I doubt that there are many lovers of music or art who don't sometimes think something like the foregoing. Indeed, it would surprise me if every members of every generation did not think something like that about the generations that follow them. Baby boomers whose own parents decried the "noise" emanating from "long-haired hippies" now find themselves at a loss to understand how their children or grandchildren can prefer Ke$ha to Creedence. But it is one thing to find the music of younger generations unpleasant. To find it offensive requires a stronger moralistic sensibility.

And what are we to make of Justice Scalia's attack on Stravinsky, whose music is not being blasted by some young punk whose headphones leak R&B as he trespasses on Justice Scalia's lawn? (Get off my lawn!) Stravinsky was born in 1882, more than half a century before Justice Scalia.

I think the best explanation is that Stravinsky represents modernism for Justice Scalia. Justice Scalia's mission may sometimes seem like it is a fight against the legacy of the 1960s but his grievance goes deeper: He is fighting modernism (and, a fortiori, postmodernism). For Justice Scalia, Stravinsky's modernism--his departure from the order of baroque, classical, and (by comparison, at least) romantic music--is of a piece with, and perhaps not coincidentally occurred simultaneously with, the breakdown of formalism in law. Stravinsky stands in for the likes of legal realist Karl Llewellyn, who was Stravinsky's rough contemporary.

There is irony here. In his own day, Stravinsky campaigned against what he regarded as degenerate music, namely the atonalism of the so-called Second Viennese School of Schoenberg, Webern, and Berg. That juxtaposition--in which Stravinsky was the defender of the grand tradition in music against the degenerates--partly explains why the Nazis, who sought to stamp out degenerate art and music, appeared to be ambivalent about Stravinsky. (On the complexity of Stravinsky's own anti-Semitism, see this heated 1989 exchange in the NY Review of Books.)

I want to be extremely clear that in saying that Justice Scalia's offense-taking at modern music is reminiscent of Nazi attitudes towards degenerate art and music, I am in no way saying that Justice Scalia is like a Nazi in any morally relevant sense. I am saying, however, that there is in his moralization of musical taste an unpleasant combination of intellectual snobbery and reactionary politics.

Wednesday, June 18, 2014

Exceptions for Religion, Conscience, Culture, and Disability

by Michael Dorf

My new Verdict column discusses how secular liberals (like me) ought to talk to religious conservatives. The column was inspired by my experience speaking on a panel on the Hobby Lobby case in which all three panelists (including me) approached the issue by asking how the secular society ought to treat religious claims for exceptions from general rules. The column explains that there is something peculiar about that framing, given that we non-believers are actually a minority. I note how this approach is pervasive among secular liberals, as captured by the title of Brian Leiter's book, Why Tolerate Religion?

The column doesn't attempt to answer Leiter's question, instead focusing on how that sort of framing limits the conversation. And to be clear, I didn't and don't mean to single out Leiter. I make plain in the column that I am as guilty as he is of the framing problem. Nearly all secular liberals approaching the problem of religious exceptions are. Notwithstanding what I say in the column, here I do want to come back to the problem of religious exceptions as seen through the lens of the secular state--recognizing that, in light of what I say in the column, I will be limiting my audience by doing so.

To oversimplify a great deal, there are three main approaches to the problem of religious exceptions. One view, taken by Justice Scalia for the majority in Employment Division v. Smith, is that no one should be entitled to exceptions from otherwise valid general laws. A second view, taken by Michael McConnell and others, is that religious claimants--but only religious claimants--should be presumptively entitled to exceptions. A third view, taken by Leiter, by Chris Eisgruber and Larry Sager, and recently by Micah Schwartzman, is that insofar as religious claimants are entitled to exceptions, so are other people making non-religious claims of conscience.

The foregoing paragraph mixes views about the Constitution with more purely normative views. That's not strictly right, of course. One might think on historical and/or textual grounds that the Constitution authorizes exceptions for religious but not non-religious claims of conscience, but also think that as a first-order normative matter, a well-designed constitution ought to treat religious and non-religious conscience claims equally. That used to be my view, although in recent years I have come closer to the view that our existing Constitution is best construed to treat religious and non-religious conscience claims equally. In any event, for the balance of this post, I'll focus on the normative question, rather than the question of constitutional law.

There is a tendency in the literature to model exceptions for conscience on religious exceptions. We tend to ask whether the non-religious claimant has a sincerely held belief that taking some legally required action, or refraining from some legally forbidden action, would be wrong. We ask whether the felt obligation of conscience plays a role similar to the role played by religious obligations for religious people. But there are at least two other ways of thinking about both religious and non-religious conscience claims. Considering them may broaden our understanding of what's at stake in exceptions cases.

One way to understand exceptions claims is best captured by Brian Barry's discussion of claims for cultural exceptions. Take the case of the Hmong immigrant to a Western country, charged with kidnaping and rape for what, in his culture, would be the accepted practice of marriage by capture. Barry offers a powerful set of arguments against a cultural defense for persons in these circumstances, but note that even if we are inclined to think that a defense should be available, very few people will say that it is acceptable for a Hmong immigrant to a Western country to engage in marriage by capture. At most we might say that his culture provides an excuse for his behavior, perhaps to mitigate punishment or to reduce the charge.

Claims for exceptions based on religion or conscience are not identical to claims for cultural defenses, but there may be a useful partial analogy: Just as someone who was educated to think that there's nothing wrong with marriage by capture can be thought not to know any better than to attempt it, so we might think that religion or conscience also acts as a kind of excuse.

The difference, however, is that a cultural defense need not be rooted in cultural relativity; the mainstream culture still thinks that marriage by capture is really wrong, even for the Hmong; it's just that we forgive recent immigrants for not internalizing that view. (I realize that there are some accounts of cultural defenses that do rest on cultural relativism, but I'm not considering them here.)

By contrast, at least up to a point, we do engage in a kind of religious or conscience relativism. Someone who objects to working on her sabbath or to fighting in a war does not simply get a lighter sentence. She is excused from the obligation to work on her sabbath or to fight in a war. Religious and conscience objections vindicate the legitimacy of the underlying objections in a way that cultural defenses (where they are available) generally do not. As noted, however, the vindication only goes up to a point--as expressed in the compelling interest test in RFRA and similar regimes.

Another possible analogy for objections rooted in religion and conscience might be disability as treated under the Americans with Disabilities Act (ADA). Whereas most antidiscrimination laws require same treatment, the ADA (in some circumstances) requires a "reasonable accommodation." That requirement is roughly analogous to the obligation on the state to satisfy the compelling interest test where religious or conscience objections are in play. A worker who uses a wheelchair may be unable to perform certain tasks in light of how the employer has configured the job, but the burden is on the employer to try to reconfigure the job so that the worker can do it, just as in a RFRA regime, an employee who observes the sabbath may be unable to do a job that the employer has configured to require work on seven consecutive days, but the burden is then on the employer to show that the job cannot be reconfigured.

Conceiving of religious claims and conscience claims as a kind of disability ultimately shows respect for such claims. It's a way of recognizing that a person who feels a religious obligation or an obligation of conscience really is incapable of complying with the law--although she may well be able to comply with a modified version of it that still serves the law's background purpose. But note that conceiving of religion and conscience as like disability raises the bar for what counts as a substantial burden on religion (or conscience). It means that compliance with the unmodified law must be pretty nearly forbidden by the religion or conscience, not merely frowned upon or deemed vaguely bad. Some of the more aggressive claims being made in Hobby Lobby and other cases probably don't meet that standard.

Tuesday, June 17, 2014

Precedents for a Limited Alliance with Iran

by Michael Dorf

One of the seemingly stranger possible outcomes of the ISIS advance in Iraq is an alliance between the United States and Iran to stabilize Iraq (as discussed here). But the outcome only seems strange. Here I'll very briefly explain why.

From 1990, when the U.S. decided to confront Saddam Hussein's Iraq for its invasion of Kuwait, the U.S. has been in an on-again-off-again informal alliance with Iran. President George H.W. Bush launched Operation Desert Shield less than two years after the ceasefire that ended the Iran-Iraq War, at a time when Iran and Iraq remained bitter antagonists. The first Gulf War, by weakening Saddam, and the second Gulf War, by removing him from power and replacing the Sunni-dominated Baath Party with a Shiite-dominated government, did a great deal to further the regional interests of Iran. Promoting Iranian interests can hardly have been the purpose of the U.S. in going to war in Iraq, but that was its foreseeable and actual consequence.

To be sure, it was easy to miss the de facto alliance between the U.S. and Iran in Iraq because, soon after the fall of Saddam, Iran began to give support to Shiite militias that were hostile to the U.S. occupation. But that only shows that the Iranians believed that once the U.S. had removed Saddam, we had served our, that is to say, their, purpose.

Now it is one thing to take note of the fact that nations that may be antagonists in general sometimes have shared interests or unwittingly serve each other's aims. It is something else to say that a nation will form an actual alliance with a seemingly implacable ideological foe. Yet that too is something that the U.S. has done at least once before, during the Second World War. At no time during World War II did U.S. cooperation with the Soviet Union reflect anything more than the shared belief that Nazism posed an existential threat to both countries.

Likewise now in Iraq, limited U.S.-Iranian cooperation or coordination in supporting the Iraqi government against ISIS would not necessarily herald any broader or longer-term cooperation. Recall that while the first strategic meeting of Churchill, Roosevelt, and Stalin (in late 1943 in Tehran, interestingly enough) focused mostly on coordinating the fight against Hitler, by the Yalta Conference a little over a year later, the U.S. and U.K. were already jostling with the U.S.S.R. for dominance in post-war Europe. Alliances of convenience tend to last only so long as they are mutually convenient.

Although I have given only one example of an ideologically awkward alliance of convenience with the United States, depending on how one defines terms, there are countless others. During the Cold War and even today, the U.S. worked with and continues to work with non-democratic countries that advance their own interests, often interests antagonistic to ours.

Meanwhile, broadening our focus still further, we can see numerous instances of fierce rivals temporarily putting aside their differences to fight the common enemy. Virtually every major revolution includes this dynamic, including: the 1789 French Revolution followed by the Jacobin Terror turning on Girondists; the 1917 Russian Revolution followed by White versus Red Civil War; Chinese resistance to Japanese occupation followed by the civil war pitting the Kuomintang versus Communists; the somewhat broad-based Iranian Revolution followed by the consolidation of power by the Khomeini faction; and most recently, the same pattern in Egypt, followed by a quick restoration (in all but name) of the ancien regime.

The last 225 years show how ideological enemies can come together to bring down a regime before turning on one another. There is no reason to think that the phenomenon cannot operate in reverse: ideological enemies coming together to prop up a regime before turning back on one another.

Monday, June 16, 2014

A Very Brief, Cynical, Comment on Abramski v. United States

by Michael Dorf

A few minutes ago, the SCOTUS handed down Abramski v. United States. The Court holds that a person who falsely states on a federal form that he is purchasing a firearm for himself when he is actually purchasing it for someone else has made a "materially" false (and thus criminal) statement, even if the person for whom the firearm is really purchased is lawfully entitled to own firearms. I haven't looked at the issues closely enough to figure out what I think about the decision, but I will note that the Court divides 5-4 (with Justice Kennedy joining the liberals to make the majority).

Thus, with the exception of Justice Kennedy, the result exactly tracks the justices' respective views about the Second Amendment. That would be unremarkable if the dissenters thought that the law needed to be construed narrowly to avoid raising a constitutional issue under the Second Amendment, but they didn't. The disagreement between the majority and the dissent purports to be simply about statutory construction. (The dissenters do say that the law should be construed in favor of the defendant to reflect the rule of lenity, but that's not an explanation for the ideological divide, because in non-firearms contexts, liberals are at least as likely to favor the rule of lenity as are conservatives.)

To be sure, policy considerations frequently influence statutory construction too, and one sees that phenomenon at work in Abramski. For example, the majority says that the federal statute aims not only to keep guns out of the hands of persons ineligible to own them, but also to facilitate crime solving (and prevention) by enabling the government to keep track of whose guns were used in crimes. Etc.

Still, it's notable that at no point do the members of the majority come out and say "we favor gun control", nor do the dissenters say "we don't like gun control (except for keeping guns out of the Supreme Court building)." But those sorts of views are undoubtedly playing a very large role in Abramski. So score another point for the predictive power of simple-minded cynical legal realism.

Sunday, June 15, 2014

Iraq, Where History Began in January 2009

by Michael Dorf

A little bit less than a year ago, I wrote a post comparing the circumstances of a sports fan deciding which non-home-town team to favor to the circumstances of U.S. foreign policy makers deciding on which side, if any, to support in a foreign armed conflict. I made special reference to the Spurs-Heat NBA Finals and to the conflict in the Middle East. Now, a year later, plus ça change, plus c'est la même chose.

I can be brief about basketball. I reported that in last year's NBA Finals I was initially ambivalent about the outcome but found myself cheering for the Spurs. This year my enthusiasm for the Spurs has been unequivocal based partly on the sense that they deserved it, having come so close last year, and partly on my admiration for their team play. I don't hate the Heat--and I found the criticism of Lebron James for getting severe muscle cramps in game 1 idiotic--but having watched way too much basketball in my lifetime, I have rarely seen a team that moves the ball as beautifully as the Spurs do.

From the sublime to the tragic. Last July, I (along with a whole lot of other people) worried that proposed U.S. military intervention in the Syrian civil war--which was then being urged by various pundits and politicians--could have serious unintended consequences: The most serious of these would be that the overthrow or serious weakening of Assad probably would not lead to multi-party multi-ethnic democracy but to the partial substitution of a brutal al Q'aeda-linked government for Assad's brutal Iranian-backed regime. Something like that appears to be happening now, except that it has happened without further U.S. intervention and mostly not in Syria but next door in Iraq.

I have repeatedly heard American commentators use words like "tangled" or "twisted" to describe the situation in Syria and Iraq. What they mean is something like this: In Syria, the U.S. has been very tepidly supporting mostly Sunni rebels against the Iranian-backed Alawite regime of Assad, while trying to keep its distance from al Q'aeda, al Nusra, and ISIS Islamists; meanwhile, in Iraq, the U.S. and Iran are both scrambling to find ways to support the mostly Shia government of Nouri al-Maliki. There are further complexities, such as the role of the Kurds (for now mostly appreciated by the U.S., al-Maliki, and Iran), even as Kurdish movements elsewhere are viewed warily by the U.S. (in Turkey) and Iran (in Iran). And all of this is going on while the U.S. and European allies are engaged in negotiations with Iran over its nuclear program, with Russia helping to broker those talks and the chemical weapons deal in Syria, even as Russia and the West are in conflict over Ukraine.

Confusing? Sure, but only if you view all international political and military conflict as rotating around an American axis. In fact, there are multiple axes, including: Shia versus Sunni; Secular versus Theocratic; Western versus non-Western; and many more. Given the complexity and local specificity of these conflicts, expecting it to be easy to identify which side to support on a consistent basis would be a little like going to the Amazon rain forest at the height of the Cold War, finding an inter-tribal war, and deciding to support the "anti-communist" side or still more preposterously, the "pro-U.S." side. There is simply no such thing.

Perhaps the most ridiculous claims over the last week have come from the anti-Obama right. The leading such claim goes like this: By failing to leave a critical mass of U.S. supporting troops in Iraq when the U.S. withdrew in 2011, Obama squandered the progress that had been made in stabilizing Iraq, thus opening the door to just what we are now seeing. The fact that this claim comes mostly from the shameless politicians and pundits who were so specatacularly wrong about Iraq in the past is galling enough. The claim also tends to ignore the fact that the Iraqi government would not grant U.S. personnel immunity from Iraqi jurisdiction--a condition on which the U.S. military insisted--but even if we put that issue aside, the whole argument is mostly based on magical thinking. Here is David Brooks on Friday (unwittingly vindicating Prof. Buchanan's simultaneous call for the abolition of the job of NYT regular columnist):
We now have two administrations in a row that committed their worst foreign policy blunders in Iraq. By withdrawing too quickly from Iraq, by failing to build on the surge, the Obama administration has made some similar mistakes made during the early administration of George W. Bush, except in reverse. The dangers of American underreach have been lavishly and horrifically displayed.
The best thing that can be said for that whopper is at least Brooks didn't say that the Obama adiministration's worst foreign policy blunder was in Benghazi.  Still, Brooks, who has carved out a niche for himself as a "moderate" or "reasonable" conservative, here displays his "moderation" by tempering his criticism of Obama with criticism of Bush, but the equivalence itself shows how low the bar is for counting as a moderate. Obama's failure to press harder for terms under which to leave a rump U.S. force in Iraq in 2011 may or may not have played some role in emboldening ISIS now, but the Bush/Cheney/Rumsfeld decision to invade Iraq in 2003 and then to dismantle the Iraqi army was a tsunami in comparison.

Even assuming with Senators McCain and Graham (cited by Brooks as prophets and called out in the story linked above for being wrong many times before) that Iraqi history began in January 2009, suppose that the U.S. did still have a few thousand troops on the ground in Iraq right now. Would their presence have prevented the Iraqi army from melting away in the face of the ISIS advance? President Bush said in 2005 that "as the Iraqis stand up, we will stand down." That's right, 2005. The Brooks-McCain-Graham view of the world says that although eight years of occupation (from 2003 to 2011) was not enough to get the Iraqis to "stand up," another three years under (reduced) American tutelage (2011 to 2014) would have been just the ticket to transform them into a coherent fighting machine--the San Antonio Spurs of warfare. Isn't it MUCH MUCH MUCH more likely that the Iraqi army would have remained ineffective, and that a continued U.S. troop presence now in Iraq would have led to a direct confrontation between U.S. troops and ISIS? Would American troops be fighting in joint missions with Iranian al quds brigades?

None of this is to suggest that I think President Obama's Middle East policy is perfect. But two points seem clear. First, it is wildly unfair to contrast the actual messy world that emerges from any decision to the hypothetical fantasy world that might have emerged from a contrary decision. (And yes, I admit that this is also true with respect to the counterfactual world in which Saddam Hussein remained in power; it too could have been very ugly.)

Second, as between the risks of too-eager use of military force and too-hesitant use, the hawks should have the burden of proof. The history of U.S. military engagement in the Muslim world over the last half century is filled with blowback: support for two generations of Shahs metastasizing into the Islamic Republic of Iran; support for the mujahideen in Afghanistan giving rise to the Taliban and training grounds for al Q'aeda; support for dictators in Egypt, Iraq, and elsewhere fueling anti-Americanism everywhere; overthrowing one of those dictators (in Iraq) unleashing sectarian violence and empowering other U.S. antagonists; and that's not even mentioning the Israel/Palestine conflict.

Is it possible that the next use of U.S. military force in the Middle East could actually work out well? Sure, it's possible. But given the strong possibility that any such use of force would cause more harm than good, is it worth spending American blood and treasure on such a mission? As between the risks of military overreach and what Brooks calls "underreach", any president would be wise to prefer the latter.

Barack Obama is president today in no small part because of a speech he gave in October 2002, stating that while he was not against all wars, he was against "dumb" ones, by which he meant the then-looming invasion of Iraq. What made that war "dumb" was partly the lack of a legitimate casus belli: Saddam has nukes (he didn't); Saddam is linked to al Q'aeda (he wasn't); Saddam violated the human rights of his own people (he did, but for much of the relevant period he was a U.S. ally); toppling Saddam will bring a flowering of democracy to the Middle East (it didn't, and when democracy came, it led back to military dictatorship--Egypt--or civil war--Syria--or, at best, hard times--Tunisia).

But the lack of a justification for going to war in Iraq was not the only thing that made the war "dumb." Ironically, going back to war in Iraq now would be justified, both legally--if the U.S. were to respond to the elected government's request for help--and morally--because, having broken Iraq, we have some ongoing responsibility to fix it. But that still wouldn't make anything more than the limited use of air power smart. The 2003 invasion of Iraq was dumb because it was not justified (as some of us said at the time), but also because, even if it had been justified, it foreseeably would have led to the post-war chaos to which it in fact led.  (Who foresaw this? Dick Cheney in 1991, among others.) 

There really are no good options for the U.S. in Iraq right now, but that doesn't mean there aren't more and less terrible ones. In general, if the use of military force seems as likely to cause harm as it is to do good, then military force should not be used.