No Matter What They Take From Me

by Michael Dorf

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

Responding to Justice Kennedy's repeated invocation of the petitioners' right to equal dignity, Justice Thomas writes in dissent:

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity. 

Human dignity has long been understood in this country to be innate.  . . . The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

Let's take this one step at a time.

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

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

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

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

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

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

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

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

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

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

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

Evolving Standards of Decency That Mark the Progress of Maturing Justices

by Michael Dorf

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

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

As Justice Scalia says in his concurrence today in Glossip v. Gross "Welcome to Groundhog Day." Justice Scalia says that in response to what he regards as tired and unpersuasive arguments against the death penalty. I disagree with his characterization of those arguments but he is right that the case has an element of deja vu about it. Once again, Justices conclude after a long career of applying the Court's death penalty precedents that it's time to give up and declare the whole thing unconstitutional. Here is the takeaway from Justice Breyer, joined by Justice Ginsburg:

In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.

Justices Scalia and Thomas, in separate concurrences each joined by the other, fight back. Here I'll bracket the disagreement over specifics to note the broader phenomenon. We now have five Justices who started out accepting that at least some death sentences could be imposed consistent with the Constitution but eventually concluded that none could. This is a phenomenon worth studying.

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

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

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

In Defense of Justice Kennedy's Soaring Rhetoric in Obergefell

by Michael Dorf (cross-posted on SCOTUSblog)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Link Between Liberty and Equality in Obergefell

by Michael Dorf

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

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

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

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

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

by Eric Segall

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

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

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

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

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

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

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

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

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

by Michael Dorf

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

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

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

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

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

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

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

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

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

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

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

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

Retirement Security Options: Liberal and Neoliberal

by Neil H. Buchanan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Gender Imbalance in Blog Readership

by Neil H. Buchanan

In my two most recent posts (here and here), I discussed the apparent gender imbalance on the comment board here on Dorf on Law.  I noted in passing that the apparent mix of our overall readership is about 65-35 (men-to-women), based on several sources of data that are surely imperfect but that are consistent with each other.  Today, I want to offer a few thoughts about that imbalance.

Before Professor Dorf collected the data, what did I think the numbers would look like?  I think I can honestly say that I expected it to be about 50-50.  In part, this is because law students constitute our biggest group of readers, and the gender mix in law schools overall is close to balanced, with even the most skewed law schools enrolling more than 40% women.  True, this blog also has a fairly large readership of professors, who (as one of the commenters on my post last Wednesday pointed out) are still living in a 70-30 world.  But we seem to trend younger in our readership, even among professors and lawyers, so I expected something approaching 50-50 to prevail.

Knowing now that our blog has roughly twice as many male readers as female readers, is there an obvious explanation?  I will start with one of the most well known possible reasons, which is the use of sports metaphors and examples.

Research has shown that sports is often a dividing line in workplaces, with men using sports talk as a way to exclude women from the in-group conversation.  Because of that research, I try scrupulously to avoid using sports examples when I teach.  Sometimes that is unavoidable, as the post-Super Bowl controversy about the tax treatment of the Most Valuable Player's free pickup truck was so obviously a topic that merited discussion in a Federal Income Taxation class.  Generally, however, it is a good idea (especially because my law school has a fairly large group of non-U.S. students) to forgo sports discussions.

As it happens, this blog's two main writers are middle-aged men who did grow up immersed in standard American sports culture.  Although we have lost a great deal of passion about our sports loyalties over the years, the interest and the historical knowledge is still very much there.  Thus, a year and a half ago, I wrote "Create Moronic Chaos!" which was an extended basketball analogy, in the service of discussing Republican political strategies.  Similarly, Professor Dorf's posts will occasionally use sports analogies, but only occasionally.  I also sometimes write about the educational and financial aspects of college sports.

In any case, although the sports content is not zero on this blog, it is rare, and when it does happen, we try to include enough information for people who do not know the background story.  (This is important even for our younger readers who are sports fans, because so many of our sports stories are so badly dated.)

It thus seems fairly safe to conclude that the "culture" on this blog is not uninviting to those who care nothing for sports.  (Yes, there are plenty of women who care about sports, but we are dealing with statistical probabilities in this instance.)  That brings us to the main question: Is there something about the general content of this blog that draws more male readers than female readers?  I think the answer is yes.  Both constitutional law (the field in which Professor Dorf and Professor Colb most often write their blog posts) and tax law (my field) are, for reasons that I do not fully understand, male-dominated.  I also very often write about economics and fiscal policy, which as academic fields are even more gender imbalanced.  The result, I think, is that our readership skews male.

Each semester, I teach a large section of the basic income tax course, with about one hundred students enrolled.  The typical enrollment is about 60% to 65% male.  The legal tax professoriate is, especially in the younger age ranges, quite gender balanced.  However, on the top ten law faculties, I can only think of two women whom one could call primarily tax scholars.

The short, unsatisfying explanation for this is the old story that "math is hard," and that by the time students enter law school (many of them, male and female, consciously avoiding other fields that require knowledge of math), the socially driven imbalance between boys and girls in math skills drives course selection and interests.  Although I use very few numbers in my posts about tax and economics, the subject matters themselves would tend to draw people who are comfortable with numbers-oriented topics.

As I noted above, however, constitutional law is also generally thought to be a male-dominated field.  There, I am at a loss.  There is almost no math involved.  The topics are universal, and the field often involves topics that are likely to be particularly interesting to students who care about gender issues.  Even so, the evidence that I have seen suggests that Con Law draws more men than women.

This post is not designed to draw a judgment.  I believe that what we write here is generally interesting (when it is interesting at all) to both women and men.  I did find it surprising that our readership is as skewed male as it is.  The most plausible explanation certainly relies on sexist social conditioning writ large, which plays out more generally in our classrooms and on blogs.  That will someday change, one hopes.

Raisins Are Not Like Oysters But Maybe They Are Like Searches

By Michael Dorf

With the Supreme Court Term winding down, this is a good time for me to issue a caution I have issued before (here). The flood of opinions in June and the need to wrap things up leads commentators to discuss themes in each Term of Court, but the natural unit of analysis for the work of the Supreme Court is not a Term. That's why no casebooks are organized chronologically year by year. Even if we want to think about case law in a temporal way (which can be quite sensible) the natural unit of analysis is something more on the scale of a decade or longer.

With that disclaimer in mind, the juxtaposition of cases decided during the same Term or even on the very same day can provide interesting insights. And so I shall take the coincidence that the Court handed down two seemingly very different cases today to address a common issue that they raise. The first case is Los Angeles v. Patel--by a 5-4 vote allowing a facial challenge under the Fourth Amendment and then invalidating a Los Angeles ordinance requiring hotels and motels to maintain guest records and turn them over on demand to the police, even absent a warrant or probable cause, and without the opportunity for a pre-enforcement challenge. The second is Horne v. Dep't of Agriculture--depending on the issue, either 5-4 or 8-1--finding that the government violated the Takings Clause by appropriating raisins. After what may seem like a long windup, I'll suggest that Justice Sotomayor's approaches in the two cases are in tension with one another.

The Court in Patel holds that the L.A. ordinance is invalid because it provides hoteliers with no pre-enforcement opportunity to challenge an order to turn over a register. When conducting an "administrative search," the government does not need individualized suspicion but some pre-enforcement opportunity for challenge is required. Justice Scalia (joined by CJ Roberts and Justice Thomas) dissents because he thinks that this particular kind of search falls into an exception for closely regulated industries. I'll bracket that merits question to focus instead on the disagreement between the majority in an opinion authored by Justice Sotomayor and the separate dissent of Justice Alito (joined by Justice Thomas) regarding facial challenges.

Los Angeles had argued that facial challenges are categorically forbidden under the Fourth Amendment because the logical focus of the Amendment is each particular search or seizure. The majority rejects this position and all of the dissenters assume that some facial challenges under the Fourth Amendment could succeed. However, Justice Alito accepts the argument of the city that this facial challenge must fail because there exist circumstances in which a search pursuant to the ordinance would be valid. Citing oft-quoted language from United States v. Salerno, Justice Alito thus concludes that the facial challenge must fail.

Justice Sotomayor hints at but doesn't elaborate on an argument that has been advanced in various writings by Dick Fallon and (separately) by me that questions the Salerno language--which says that a facial challenge can only succeed if there is "no set of circumstances" in which the challenged law would be valid. We (and in a different way Nick Rosenkranz) have argued that the Salerno language overstates the difficulty of bringing a facial challenge. Justice Sotomayor appears sympathetic to that criticism (she cites one of Fallon's articles) but she then effectively pivots and says that even if Salerno is taken at face value, the L.A. ordinance still fails because the supposedly valid applications of the ordinance are not really applications at all.

How so? L.A. and Justice Alito in dissent gave examples of circumstances in which, consistent with the Fourth Amendment, a hotelier could be required to turn over the register without any opportunity for pre-compliance review. For example, Justice Alito describes a scenario in which the police have reason to suspect that a criminal has kidnapped a woman and is raping her in a hotel room. Surely then the invocation of the ordinance would not violate the Fourth Amendment, he says. Justice Sotomayor agrees that the exigency would justify a warrantless inspection of the register without any pre-compliance review but she says that in these circumstances the exigency itself, rather than the ordinance, is what satisfies the Fourth Amendment.

Most interestingly, Justice Sotomayor cites a portion of the Court's analysis in Planned Parenthood v. Casey, in which the majority there invalidated a provision of law requiring married women seeking abortions to notify their husbands. The state had argued that the provision was facially valid because most married women voluntarily notify their husbands but the Court said that those applications of the law don't count because voluntary acts are not compelled by law. Similarly in Patel, the Court discounts consent searches and indeed all searches that would be permissible even in the absence of the ordinance. The denominator for evaluating whether the invalid applications of the law sufficiently predominate over the valid ones to result in facial invalidation includes only circumstances where the law has bite.

Now onto Horne. The federal government requires raisin growers and "handlers" to set aside a substantial fraction (47% in one of the years in question) for the government, which then disposes of those raisins as it sees fit, remitting to the growers/handlers the net proceeds if any from subsequent sale of the government's reserve raisins (although in the two relevant years there were no net proceeds). Eight Justices in Horne agreed with the Hornes (growers and handlers of raisins) that by appropriating a substantial fraction of their raisins, the government had affected a Fifth Amendment taking of their property. Five of those Justices (CJ Roberts for the conservatives) thought that this entitled the Hornes to a full rebate of the market value of their raisins, while three Justices (Justice Breyer for the liberals minus Justice Sotomayor) thought the case should be remanded for a calculation of how much if anything was due to the Hornes after subtracting from the market value of the raisins the dollar value in benefits conferred upon the Hornes by the price support accomplished through the quota system. That's an interesting disagreement but I'll put it aside to focus on Justice Sotomayor's disagreement with the rest of the Court.

In his majority opinion (for 8 Justices on this point), the Chief Justice explained that the government program could not be considered a kind of conditional regulation, distinguishing various other programs. For example, he distinguished a 1929 case upholding a requirement that oyster harvesters set aside 10% of their oyster shells for the government on the ground that the oysters in the water belonged to the government, whereas the raisins originated as private property. "Raisins are not like oysters" the Court announces (in what I hope will become an internet meme).

Okay, but are raisins like searches? Justice Sotomayor apparently thinks they are not. Her solo dissent in Horne says that the Hornes did not suffer a per se taking of their raisins because the government did not take every stick in the bundle of rights in those raisins. In particular, the government left them with an important stick: The right to receive pro rata compensation in the event that the government obtains net proceeds from the disposal of the reserve raisins. She also says that the raisins are like oysters in the sense that the government can condition entry into the raisin market on a grower's forking over a fraction of raisins to the government, but I'll put that aside here to focus on the "stick" in the bundle that Justice Sotomayor says the raisin growers retain.

I simply want to note the tension between her approach to raisins and her approach to searches. A consent search does not count in validating the Los Angeles hotel ordinance because the hoteliers by definition don't object to a consent search; the ordinance is thus not really in play. But in Horne one could say that the "stick" retained by the Hornes--the right to the possibility of some pro rata return from the raisins the government takes--also shouldn't count because it's not a stick that the Hornes want. Moreover, by focusing on what the Hornes ostensibly retain, Justice Sotomayor in Horne (in contrast with her opinion in Patel) seems to overlook what they give up. Suppose that the government program stipulated that in years in which the reserve raisins produce net proceeds, each grower will be entitled to half his pro rata share of those proceeds, with the other half going to other government programs. Would that be no taking because the Hornes would still be left with a stick (albeit a shorter one)? In part of her dissent, Justice Sotomayor complains that the majority doesn't offer a non-arbitrary substitute for the no-sticks approach, but her own view of the no-sticks rule is susceptible to the same criticism.

To be clear, I don't want to say that Justice Sotomayor's majority opinion in Patel logically contradicts her dissent in Horne. I do want to say that questions of "what counts"--whether we are talking about abortions, searches, or raisins--are very often presented as matters of logic and arithmetic, but that these cases illustrate that values and policy druthers probably play a large role as well.

A Few More Thoughts on Women, Men, and Blog Comments

by Neil H. Buchanan

In my Dorf on Law post last Wednesday, I wondered aloud why the people who contribute to the comment board on this blog seem to be almost all men.  I initially noted my longstanding interest in gender issues, driven in part by an undergraduate experience that featured an unusual level of gender balance in the classroom.  By contrast, the evidence is clear that all too many classrooms in U.S. universities (and especially in our law schools) are dominated by young male blowhards, reflecting a more general socialization process that leads to women too often being silenced in public forums.

The most interesting question, to me, was how this process carries over from the classroom to a comment board on a policy blog like this one.  In an atmosphere that is (with extremely rare exceptions) respectful and issue-oriented, and with the number of comments per post quite low, one might imagine (or I did, at least) that the bad in-person gender imbalance of the classroom would not replicate itself on our comment board.  After allowing for the possibility that the gender imbalance might actually be a statistical illusion, I tentatively concluded that "the gendered norms in school and on the more Wild West-ish internet sites have made commenting on a blog something that women simply do not think about doing."

Before discussing two interesting comments that we received on that post, I must take a moment here to expand on that "Wild West-ish" nature of many internet sites.  In my post, I noted in passing the recent news about the "gamer" harassment of female writers, but I did not appreciate just how awful and pervasive this problem is.  By coincidence, the main story on John Oliver's "This Week Tonight" last night was an investigation of online harassment of women.  The second part of the segment was about so-called revenge porn, which is truly horrifying but not obviously relevant to the discussion here.  Before getting to that issue, however, Oliver described in grim detail the pervasiveness of the problem of male attacks on women via the internet.  Although I was aware of the problem, the degree and intensity was still shocking.

Had I seen Oliver's piece before I wrote my post last week, I would have been much more likely to conclude that the disturbing norms across far too much of the internet are more than enough to explain the apparent absence of female commenters on any comment board, anywhere.  I used the somewhat lighthearted phrasing of "a guy thing" to describe the practice of commenting on blogs, but there is nothing light or humorous about it.  If I were a woman, I would surely be acutely aware of the risks that sadly accompany any online forays, and possessing that knowledge alone would be enough to cause me to forgo making comments.

Consider a somewhat similar problem, relating to race.  At at conference last month, I heard a professor (who teaches at a university in St. Louis) describing the full range of racist ways in which some cities in Missouri raise revenue through fines, along the lines of the practices in Ferguson that were recently cited by the U.S. Department of Justice.  During Q&A, I asked what coping mechanisms were available, by which African-Americans could attempt to minimize their exposure to this toxic enforcement atmosphere.  I noted NYC Mayor Bill de Blasio's comment about the type of discussion that he would have with his mixed-race son, to help the young man navigate a world filled with race-based traps.  I wondered, for example, whether scrupulously obeying the speed limit (which is apparently not necessary for white citizens in Missouri) would allow one to avoid the unwanted attention of the police.  The speaker replied that the system there is set up so that it is impossible not to do something wrong, which leaves police officers with the discretion to stop virtually anyone from whom they might want to extract money.

In that context, in other words, there is apparently no coping mechanism that can allow a vulnerable citizen to avoid the injustice that awaits him.  In the context of gender dynamics on the web, however, there really is an effective mechanism, which is to present oneself as a man.  It is insane and unjust that this is necessary, but the anonymity of the internet does allow people to present themselves in whatever way they like.  One of the comments on my post last week came from such a person, who noted that she has responded to the generally hostile environment of comment boards by using an online pseudonym that identifies her as male.  Especially now, I can completely understand why one would choose to do so.  Again, such strategic planning should not be necessary.  Because it is, however, it suggests that the internet might have become a place where nearly everyone appears to be either male or genderless, even though the reality is quite different.  The underlying statistical reality is thus actually unknowable.

Another reader began her comment by noting that she has never commented on any blog before, nor had she ever wanted to.  I am pleased that she felt comfortable enough to offer some of her thoughts on this blog.  Her hypothesis is that the (apparent) gender imbalance in comments is driven by expertise, which is then driven by generational gender imbalances.  That is, this is a blog that draws wonky comments, and people without sufficiently deep knowledge know not to comment.  (That is clearly an exaggeration, but I see the general point.)  Because the people with deep knowledge on these subjects tend to be middle-aged professors, which as a group is heavily male, even the comment board on Dorf on Law ends up being effectively a male preserve.

The optimistic conclusion that the commenter proffers is that this will change over time, as the legal academy's gender balance rights itself in the future.  One fervently hopes that this is true.  On a related subject, however, I will note the more general phenomenon that women and men have been repeatedly shown to have quite different concepts of what counts as "knowing enough to present oneself as an expert."  In my two years of teaching at selective women's colleges, for example, I noted that my students would hold back when I asked them if they were familiar with a concept or a skill.

For example, in an advanced economics seminar, where I knew from an anonymous survey that almost all of the students had taken advanced mathematics courses, I once asked, "Remind me, how many of you know how to do partial derivatives?"  Not one hand went up.  When I stopped and said that I was certain that some of them should have raised their hands, one student finally said, "Well, I have successfully completed some problem sets with partial derivatives, but I can't say that I know how to do partial derivatives."  I thought to myself, "Is there any guy on the planet who would be that scrupulous about what counts as expertise?"  Among other things, this explains the phenomenon of "mansplaining."

What this means, I think, is that increasing balance in credentials is necessary but not sufficient to change the culture.  Even so, I certainly hope that the generational trends continue and accelerate.  My thanks to our commenters for their insights.

Thursday Racial Thursday

by Eric Segall

Race was all over America on Thursday. Of course, the Charleston tragedy dominated the headlines with most thoughtful folks reflecting on how someone could be so full of hate that he would kill nine innocent people in cold blood and also thinking about our gun policies and how we can prevent such massacres in the future. Shame on those who showed sympathy but suggested we shouldn’t use the incident to discuss issues of race and gun control. If not now, when?

Race was also all over the Supreme Court on Thursday. The Justices ruled that Texas (yes, Texas) could refuse to issue a special license plate with a Confederate flag on it even though Texas permits all kinds of symbols and messages on its plates and this was the first time an application for such a plate was turned down. The stated rationale for the denial was that the Confederate flag could offend many Texans (you think?). The suspect in the Charleston murders had a Confederate flag on his plate.

The legal issue in the Texas case was complicated, involving fine distinctions between private speech (which the government can’t normally regulate), government speech (which the government can control with little limitation), and mixed or hybrid government/private speech where the legal rules are unclear. The majority found this to be a case of pure government speech (thus allowing the denial), the dissent strongly disagreed, and thoughtful academics like Mike would have labelled symbols on license plates mixed government/private speech (which of course it is).

The most interesting aspect of the case, and where race played a major role, is that Justice Thomas, for one of the few times in his career, sided with the four liberals against the four conservatives and voted to uphold the denial. He didn’t write separately but Court watchers were pretty sure Justice Thomas made an exception to his normal free speech jurisprudence (and his voting patterns) because as an African American who grow up in rural Georgia, he knows all too well the racism and violence the Confederate flag stands for.

Race was also present in Atlanta, Georgia on Thursday. I was a guest on a radio show when two folks called in, one complaining that the media was turning the Charleston incident into a race baiting episode and the other arguing that he felt bad for the victims but why couldn’t “those people” get their act together and stop committing crimes and living in poverty. The host, a liberal, and I tried to explain to them the context of race relations in America but to no avail.

In light of these events, it may be useful to recount some basic history about race in America. Thomas Jefferson’s original draft of the Declaration of Independence contained an anti-slavery clause but he had to remove it at the insistence of the Southern colonies. Later, when the framers met in Philadelphia to write our Constitution, slavery was a major issue leading to the infamous 3/5 clause and the entrenchment of the practice of slavery (not specifically named) until 1808.

Race generally and slavery specifically led to the Civil War where over 600,000 American soldiers were killed. After the War, and despite the 13^th, 14^th, and 15^th Amendments, the Supreme Court both prohibited Congress from prohibiting segregation and allowed the states to entrench Jim Crow, leading to generations of racial apartheid in our country. In my lifetime (1964), restaurants and hotels went to the Supreme Court arguing that they had a constitutional right to refuse service to African Americans.

A typical response to this history from many people is something to the effect that “that was then and this is now.” Not so and here is why. Between 1934 and 1962, the federal government allocated approximately 120 billion dollars backing home mortgages with 98% going to white families and neighborhoods. This led directly to whites owning houses that appreciated in value which led to white wealth increasing and being handed down from generation to generation. In addition, this wealth brought good schools and good jobs creating more wealth and more good schools. All of that prosperity for “Whites Only” led to separate neighborhoods for whites and blacks in most cities and states across the country and the resulting cycle of poverty and desperation. While all this was occurring, blacks were excluded from many jobs and other important economic opportunities. As of 1970, to cite just one example, Alabama had never had a black trooper.

The important point is that these tragic events did not occur naturally or by accident but because of intentional governmental and private choices. First there was slavery, then segregation, then racist economic policies and exclusionary employment practices. Anyone who believes that the effects of hundreds of years of formal legal discrimination and racial abuse can be ameliorated in one or two generations of formal (but that’s all) racial equality is living in a world of fantasy and make-believe.

There are no easy answers to our racial problems. But, as Thursday demonstrated so tragically and vividly, we are far away from a post-racial society. We must all accept that fact categorically if real progress is going to be made.

No Middle Ground in Confederate License Plate Case

by Michael Dorf

Justice Breyer's majority opinion in Walker v. Texas Div., Sons of Confederate Veterans (SCV) is so badly reasoned that it cannot be taken seriously at face value. After explaining why I think Justice Alito's dissent is more persuasive, I'll explore why both the majority and dissent disregarded proposals for an intermediate category of mixed government/private speech.

First, a quick overview. For a substantial fee, Texas, like many states, offers "specialty" license plates. There are hundreds of off-the-rack plates expressing support for various civic organizations, causes, leisure-time activities, etc., and also the possibility of approval for a custom-designed plate. SCV applied for a specialty plate with its name and a Confederate Battle Flag logo but the relevant Texas agency rejected it after a public hearing on the ground that it would be considered offensive to many Texans. SCV sued, claiming censorship.

The SCOTUS ruled 5-4 in favor of the state, with Justice Thomas joining the four most liberal members of the Court in the majority. The lineup is interesting, no doubt, but I'll mostly leave for others the job of speculating about why Justice Thomas broke ranks from the other conservatives. (One possibility is that despite his general conservatism, Justice Thomas, as only the second African American ever to serve on the Court, has a special understanding of the meaning of the Confederate Battle Flag.)

As I explained in a Verdict column when the Supreme Court granted review in SCV last December, the case appeared to turn on whether the Texas specialty license plate is understood as government speech or private speech in a limited public forum. And that is in fact how it came down. The majority says it's government speech, so the government wins because "SCV cannot force Texas to include a Confederate battle flag on its specialty license plates." The dissent says it's private speech on a government-created forum for tiny billboards and that the viewpoint-based restriction is invalid.

The majority opinion makes some sound arguments for why government speech in general should not be subject to the same restrictions as government regulation of private speech. But it is really quite unpersuasive in showing that the Texas program is government speech.

The Court says: "The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider." That's true as a general matter, but as Justice Alito explains with some devastating examples, the evidence is really overwhelming here that the government is not seeking to convey, as its own, the various messages that it approves for specialty plates. Here is just one of Justice Alito's illustrations: The state issues specialty plates "with the names of the University of Texas’s out-of-state competitors" in collegiate athletics, including "Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, [and] Iowa State." Yet it cannot possibly be inferred "that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents."

Justice Breyer really provides no answer to this example and others like it. He merely concludes that the specialty plates are government speech because Texas exercises the power to deny plates that it disapproves of. But while that may be technically relevant to whether Texas has created a "forum" for speech, it does not show that Texas is conveying as its own just those messages that Texas car owners pay to have displayed on their license plates.

Meanwhile, although Justice Alito does an excellent job of showing why the majority is wrong to conclude that Texas is engaged in anything like pure government speech, his opinion does not really confront the basic problem. Justice Alito is right that even in a limited public forum the government cannot engage in viewpoint discrimination, but in most limited public fora it is clear to the public that the speech at issue is wholly private. State-issued license plates are potentially different, however. Although Justice Alito's examples show that Texas does not intend to convey as its own all of the messages on specialty license plates, there is nonetheless a substantial risk that Texas nonetheless will convey some level of government endorsement of the private speech on the specialty plates. During the oral argument, the lawyer for SCV contended that the state could respond to that risk with a disclaimer, but Justice Sotomayor was rightly skeptical about finding room for such a disclaimer on a license plate.

Given the record, it is understandable that Justice Alito characterized the government interest here as one in avoiding offending the public. The First Amendment does not permit the government to engage in viewpoint discrimination to protect the public against offensive speech by private speakers. However, the government does have a real interest in avoiding being seen by the public to endorse offensive messages. Justice Kennedy asked the SCV lawyer during the oral argument whether the First Amendment obligated Texas to issue specialty license plates containing racial slurs. He bit the bullet and said yes, but that strongly suggests that this is the dissent's position as well: If the government cannot censor racist slurs on bumper stickers--and it cannot--then it must issue specialty license plates containing racist slurs (or issue no specialty plates at all). Can that really be the meaning of the First Amendment?

In the end, both the majority and the dissent are unsatisfying because, as Professor Caroline Corbin has argued, specialty plates fall into an intermediate category of "mixed" government/private speech. In my December Verdict column, I acknowledged that recognizing such an intermediate category would not magically turn hard cases into easy ones, but I argued that it would be less artificial than pretending that mixed speech is pure government speech (as the SCV majority does) or that it is pure private speech (as the SCV dissent does).

No one on the Court opted for the mixed-speech category, either in SCV or in the Summum case, on which the majority relied heavily. Justice Souter's concurrence in Summum came close to recognizing a mixed-speech category but even he concluded that the government's decision whether to accept a monument in a public park was ultimately government speech and, in any event, Justice Souter retired from the Court shortly after that decision.

Why are there no takers for mixed speech? I'll suggest two possible explanations. First, it is almost always easier to write an opinion (or dissent) that applies existing doctrinal categories. Minting a new category would be bolder and would be harder to disguise as the mere application of pre-existing law.

Second, despite the Justices' disagreement here and from time to time on other First Amendment issues, the Roberts Court generally is a strongly pro-free-speech Court across the ideological spectrum. And for roughly the last half century, strong protection of free speech has been closely associated with rules rather than with standards or balancing. To create a category of mixed government/private speech would almost inevitably be to adopt a balancing approach. That is what Professor Corbin proposed (intermediate scrutiny) and that is also what Corey Brettschneider and my colleague Nelson Tebbe proposed in their NY Times op-ed endorsing a mixed-speech approach.

Although it can be argued that numerous Supreme Court doctrines tacitly balance the good of speech against other goods, express balancing has long been associated with the sort of inadequate protection for speech championed by Justice Frankfurter. Thus, the Court's rejection of any middle ground in SCV can be understood as ultimately speech-protective, even as the free speech side of the case lost.

Harmful and Harmless Deceptions In Dating

by Sherry F. Colb

In my column for this week, I consider the question whether there is an ethical/moral duty for a transgender person to disclose his or her transgender status to a potential partner prior to engaging in sexual intimacy.  I present some arguments and points of view offered by a number of my colleagues (anonymized to protect the innocent) as well as some arguments of my own on both sides of the question.

In this post, I want to consider an issue that arose during the course of my discussions with my colleagues as well as in conversations with friends to whom I also posed the original question.  The issue is deception in general among sexual partners.  Only one of my colleagues said that that people have an ethical duty to disclose all information that they predict would matter to a partner, no matter how "unreasonable" we might consider the partner's desire to have that information.  At the same time, all of my colleagues agreed that there is a duty to disclose that one has a sexually transmitted infection ("STI"). I want to raise doubts about the answers to both of these questions.

When one is involved in a casual sexual encounter (rather than, say, sexual relations as part of a long-term, committed relationship), it is probably a good idea to act "as if" the other person has an STI (and thus to practice safer sex).  This is because not only do people lie about their health status, but many people do not know their health status (and that includes their HIV status).  Many who are sexually active with numerous partners decide not to get tested for STI's, including HIV, because they prefer not to know.  This form of denial is quite similar to the behavior of people who eat unhealthfully and never exercise but choose not to inquire with a doctor about whether they are suffering from one of the chronic diseases that plague those with unhealthful eating habits who live very sedentary lives.

Once we understand that many of the people upon whom we might place a "duty to disclose" an STI are unaware of having an STI, it arguably becomes all the more reasonable to say that parties have a duty to protect themselves from illness rather than placing the obligation on a sexual partner to take necessary precautions and provide a warning.  This calculus might change if there is an affirmative lie, such as "You don't need to use a condom because I am disease free" when the speaker in fact has an STI and knows it or "Birth control is unnecessary because I had my tubes tied" when in fact the speaker had no such surgery and is fertile.  But otherwise, the worried partner should perhaps take on the responsibility of asking the question about STI's expressly or, better yet, of assuming in the absence of contrary proof that the answer is yes and acting accordingly.

Now turn to the other question on which there was near-unanimity.  Do people violate their ethical/moral obligations by deceiving partners on a whole range of seemingly unimportant (but material-to-the-partners) facts about themselves?  Almost everyone says no.  You can tell your potential sexual partner that you are much younger than you are (and wear the makeup, hair color, and whatever else helps support your deception).  You can announce to  your partner that you hold a better (and better-paid) position at work than you actually do.  And you can claim to your partner that you have many more friends and have had more lengthy romantic relationships in your past than you really do and have actually had, respectively.

I wonder, though, whether these really are harmless deceptions that there is no ethical duty to avoid.  One colleague suggested, vis-a-vis the transgender disclosure duty, that if a couple remained together long term, then a moral duty to disclose would emerge at some point (although he thought that no duty existed for a one-time encounter).  Assuming that some number of the sexual relationships develop into something long-term and committed, people might well feel betrayed (and angry) that at their first encounter, their now-long-term partner lied to them.  Perhaps the couple is now suffering financial problems, and the lie about financial security now seems like a fraudulent scheme.  Or maybe one of the partners was hoping to have children and would have known that was unlikely (and may have made a different decision about getting involved) if the other partner had been honest about her age.

My first reaction to the idea that all material-to-the-other-person information should be disclosed, as an ethical matter, was to think "no way."  But in thinking more about it, perhaps the deceptions we take for granted in short-term intimacies can have a corrosive and harmful effect if the relationships develop into something more permanent, which is always a possibility (and perhaps even a goal for many people who decide to become sexually intimate with someone).  And it is hard to know when the "correct time" is to disclose something about which one has lied in the first place.  At some point, it might well feel "too late" to disclose, because the initial lie plus the time that has passed has amounted to a correct accusation by the partner that "you have been lying to me all of these years."

Part of what makes the whole question of a moral duty to disclose interesting is that whether we are talking about an STI or something that appears to be a trivial deception, there are compelling arguments both for and against embracing a duty.  There are so many circumstances in which people find themselves that it is difficult to know, ahead of time, whether it is truly "harmless" or "harmful" to pretend, by omission or expressly, to be "more than" or "different from" the person you truly are. Perhaps we would have a more ethical world if people erred on the side of disclosure rather than concealment.