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.