Wednesday, September 21, 2016

Wedge Issues in the Courts

by Michael Dorf

In my new Verdict column, I consider the various ways in which the future path of SCOTUS jurisprudence does not depend on the outcome of the 2016 presidential and Senate elections. For what I imagine are a majority of DoL readers and, indeed, for myself, the column is intended partly as a form of therapy. There are many potentially terrible consequences of a Trump presidency, should it come to pass, but, my column suggests, a terrible Supreme Court is not really one of them. Trump would almost certainly nominate a conservative to fill the current vacancy and additional conservatives to fill future vacancies. That, in turn, could lead to a conservative Supreme Court for a generation. And that, in my view, would be quite bad on a range of issues I care about, including abortion, affirmative action, campaign finance regulation, federal regulatory power, gun control, and more. But so far as the Supreme Court is concerned, Trump poses no greater threat than would a generic Republican president. So yes, a Trump victory would be (for liberals like me) terrible for the Supreme Court but not in a distinctly Trumpian way.

The Verdict column offers three reasons for some measure of equanimity if not quite optimism about the Supreme Court. First, the Court does not play a significant role in some of the most fundamental questions our polity addresses, including whether to go to war, tax rates, interest rates, treaty negotiation and ratification, and much more.

Second, in many areas the Court proceeds from consensus. This includes free speech, which, in the event of a Trump presidency, could be important. It is possible to imagine the Roberts Court standing up to a censorial Trump administration in some contexts.

Third, new issues could arise without a clear ideological valence or with one that cuts across existing divisions. In the column I discuss surveillance, robots, and animal rights as possibilities.

Having said all of that, I also want to acknowledge that there could be new issues that reinforce existing ideological patterns. For a recent example, consider the ideological division on the Court in NFIB v. Sebelius, the challenge to the so-called individual mandate of the Affordable Care Act. The Court split 5-4 on the permissibility of the mandate under the Commerce Clause (against) and 5-4 on its permissibility under the Taxing Power (in favor). At the time, everyone was focused on the fact that CJ Roberts was willing to vote to uphold the mandate as a tax, but that framing overlooked a more basic question: Why was the case ideologically polarizing at all?

Based on prior cases, there was nothing unexpected about the more conservative justices being more skeptical of federal power than the more liberal justices, but that doesn't really tell us why the issue was controversial. After all, the question whether Congress could issue mandates hadn't really arisen before. Once we knew it was going to be ideologically divisive, it was easy to predict how, but there are lots of federal statutes that do something a little new that don't create ideological divisions on the Supreme Court. And the core idea for the mandate was originally embraced by some Republicans as a market-oriented alternative to government-run single-payer health insurance.  Conversely, one could imagine an alternative history in which a Republican Congress and president adopted the mandate over the objections of libertarian-minded liberals. Indeed, during the 2008 primaries, then-Senator Obama sounded objections in this register.

Thus, the mandate became an ideologically polarizing issue on the Court, but it wasn't inherently polarizing on left/right grounds. It was contingently polarizing. It is possible to imagine lots of issues that could have that characteristic--where ideological opposition mostly originates from the fact that the other team is behind the program, not from the nature of the program itself.

There are also issues that are inherently polarizing. Many of the ideologically polarizing issues with which we are familiar have this characteristic and few of them are likely to go away. Abortion, affirmative action and race more broadly, campaign finance, the death penalty, gun regulation, and various other divisive issues will likely remain so for the Court for the foreseeable future, even if they end up dividing 6-3 rather than 5-4.

I suspect that LGBT rights as a wedge issue will increasingly fade. That's true for same-sex marriage already and could soon be true for trans rights. Notably, Ted Cruz tried to run on an anti-trans-accommodation platform in the primaries and got little traction. In the Republican primary.

That's not to say that politicians won't attempt to mobilize around anti-LGBT issues. The challenge to the Obama Title IX policy is already dividing the justices on predictable left/right grounds. But I think that, as with gay rights, so with trans rights, eventually this issue will lose its ability to raise the blood pressure of enough social conservatives to make it worth pursuing for wedge purposes--with an important exception to which I'll come in a moment.

So what will be the next big wedge issue? Another way to ask that question is this: If I were an evil genius working for Republican candidates for office, what looming social change could I tap to energize fear and outrage? Fear of terrorism seems like an obvious choice, but that's not really a new issue.

Meanwhile, the Trump campaign has shown that to mobilize reactionary impulses, one doesn't really need a coherent plan or an objection to a particular plan by opponents. It's notable that most of what Trump complains about from Clinton is imaginary: her imagined plans to disarm America; her imagined plan of open borders; etc. These imaginary outrages may be good for mobilizing voters but it's hard to see how they translate into court cases.

Or maybe it's not so hard. For some years now, conservative pundits and politicians have been mobilizing against the imaginary War on Christmas. Even though there is no such thing happening, the courts are already facing significant polarizing litigation based on the premise that laws granting contraception benefits and requiring public accommodations for LGBT persons infringe the religious rights of religious conservatives. Religious accommodations aren't exactly a new wedge issue, but they promise to be a potent one.

Interested readers are invited to propose their wedge issues. Bonus points to anyone who proposes good wedge issues for Democrats.


Joseph said...

"Trump would almost certainly nominate a conservative to fill the current vacancy and additional conservatives to fill future vacancies. That, in turn, could lead to a conservative Supreme Court for a generation."

Are you trying to give a minority of your readers a reason to vote for him?!

Do you think the stakes are sufficiently high and certain, that if the roles were reversed, you would vote for a Trumpian candidate? Or take some solace that maybe the things aren't so dire as you do in this post?

Michael C. Dorf said...

In answer to Joseph Simmons: I sympathize with those of my readers who are horrified by Trump but are generally conservative, because they must trade off the various economic, military, and moral catastrophes that a Trump presidency risks against their vision of the Supreme Court. To answer your question, if Trump or his equivalent had somehow gotten the Democratic nomination but promised to nominate liberals to the Supreme Court, and the GOP had nominated a conventional Republican like Bush or Kasich, I would vote for the conventional Republican, albeit with great reluctance.

Joe said...

I share Dorf's sympathies though it's tempered by the fact I don't think Clinton is the caricature some put her out to be. Some liberals are wary just for that reason on the ideological side of the ledger. I realize this pushes against the hypo. I might vote for the Gary Johnson candidate in that scenario. I don't live in a swing state.

I do wonder what the next generation will bring. Trans issues seems like a good choice here -- there are a mix of fact scenarios there. Gay and lesbian issues still might have some bite left such as the selling cakes to same sex couples / free speech or free exercise claims. Something like an evenhanded right to benefits (if they are given, must be given equally) including in areas like health care and education.

Jim said...

Would immigration count as a somewhat new wedge issue? I guess this counts in part as contingently polarizing, since DACA/DAPA opposition undoubtedly is based in part on resistance to anything President Obama tries to accomplish. But it could be viewed as a wedge issue for Democrats trying to appeal to an increasing share of the voting population -- even Republicans briefly realized (but then quickly forgot or ignored) that they were hurting their chances in presidential elections by alienating (pun intended) Hispanic voters.

Also, Joe's reference to an evenhanded right to benefits seems like a good prediction of a wedge issue looming on the near horizon. A lawsuit was recently filed claiming that the State of Michigan is depriving Detroit schoolchildren of an equal opportunity to achieve even a basic level of literacy.

Asher Steinberg said...

Is the emerging conservative movement to overrule Chevron (joined by Justice Thomas and Judges Gorsuch and Kavanaugh - also note the planted gossip from former Scalia clerks and Scalia-adjacent types that Scalia was mulling overruling Chevron before his death) contingently polarizing, where the contingency is Obama's presidency and the likelihood of a Clinton presidency, or inherently polarizing? And is there (isn't there) an excluded middle here where an issue is neither, but non-politically-contingent trends in the conservative (or liberal) legal movement cause an issue to become polarizing that isn't inherently polarizing in the sense that legal conservatives and liberals would inevitably divide over the issue at any moment in time?

Joe said...

A post over at Concurring Opinions makes me think that various family issues will arise, not only involving same sex couples.

Asher Steinberg raises something for debate though might need to read the sentences a few times to get the whole gist.