Thursday, June 30, 2016

National Constitution Center SCOTUS End-of-Term Wrap-Up

by Michael Dorf

In this podcast, I discuss the big cases, the trends, and the near-term future of the Supreme Court with National Constitution Center President Jeffrey Rosen (host) and Carrie Severino of the Judicial Crisis Network. We agree on some points and disagree on others. Discuss among yourselves.


Strieff, Innocence, Targeting, and Overcriminalization

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of Utah v. Strieff. The Court held in Strieff that although a police officer had stopped a suspect without any reasonable suspicion (as the parties conceded), and this stop was what led the officer to ask for identification and ultimately to learn of an outstanding arrest warrant against the suspect, the evidence found in the course of the search incident to the arrest (on the basis of the warrant) is properly admissible under the "attenuation doctrine."  The Court found that the pre-existing arrest warrant for the suspect constituted an "intervening circumstance" that attenuated the causal link between the initial illegality and the discovery of the evidence on the suspect.

In my column, I criticize this opinion but in particular, I take issue with a line in the decision in which the Court hints at the possibility that the initial stop, performed without any reasonable suspicion, might nonetheless have been lawful under the Fourth Amendment because there was an outstanding warrant in existence for the suspect's arrest.  I suggest that this post-hoc rationalization for a stop could, if taken to its logical conclusion, spell the end of the exclusionary rule, since one could argue that anyone with evidence on him or her retroactively justified whatever seizure and search of her that turned up that evidence.

In this post, I want to explain why I believe such a retroactive approach would be a problem.  Years ago, I wrote an article in the Columbia Law Review, entitled "Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence."  There, I proposed that in some sense, guilty people have forfeited their right to the privacy that conceals their guilt.  On this theory, if a police officer happens to stop and search someone who, it turns out, has evidence of crime on his person, then no privacy harm has occurred.  I think that there is still a sense in which this is true, but I would add two caveats, one of which is in my Columbia article and the other which is not.

The first caveat is the targeting harm.  I argue in the Columbia article that although people forfeit a privacy right in the area that they use to conceal evidence of crime, they do not forfeit a right against being arbitrarily targeted by the police, an interest that is part of the Fourth Amendment right against "unreasonable" searches and seizures, just as privacy ordinarily is.  Police do not truly randomly stop people when they decide to seize someone against whom they harbor no reasonable suspicion or probable cause.  Police instead have some "feeling" about the person, a feeling that is likely to correspond--as Justice Sotomayor eloquently explained in her Strieff dissent--to race and ethnicity. Therefore, although a person against whom an outstanding warrant exists is, in some sense, not entitled to be free from detention or arrest (or a search incident to arrest), it is also true that the same person is entitled to be free from arbitrary governmental behvior aimed at him for the wrong reasons. The harm of such activity is what I call "the targeting harm" in my article, and I think that if the Court picks up on its hint and decides that an unknown outstanding warrant can justify a suspicionless stop, then that will open the door to tremendous numbers of targeting harms directed at minority communities and individuals, a very undesirable outcome from the perspective of both the Fourth Amendment and Equal Protection values.

A second caveat is that in my article, I assumed for purposes of argument that anyone who is guilty of a crime or against whom there might be an outstanding warrant is in fact deserving of detention or search or ultimate prosecution.  But as Justice Sotomayor also pointed out in her Strieff dissent, many of the outstanding warrants out there are for relatively minor traffic offenses for which no one should be going to prison or otherwise being severely punished.  In other words, the assumption under which I was operating in suggesting that guilty people forfeit the privacy that conceals their guilt is that the guilty people are truly "guilty" in some meaningful sense.  But as I argued in a different piece, "Stopping A Moving Target," that assumption is often not well founded, and not every traffic violation is serious enough to be worthy of authorizing even a stop, never mind the criminal justice consequences that could follow an arrest.  Lots of people who commit minor, trivial traffic offenses end up with outstanding warrants for their arrests, and likewise, people who are "guilty" of technical violations or crimes may in fact have done something relatively trivial that should not make them eligible for humiliation, degradation, or the other experiences that accompany police search, seizure, and arrest.

To put the point differently, to the extent that we have a serious problem of overcriminalization, which many of us would acknowledge that we do, it is no longer the case that anyone who commits a "crime" has thereby forfeited the right to either privacy or liberty.  Overcriminalization calls into question the legitimacy of the whole system, which means, at the very least, that we want to reign in police power to interfere with apparently innocent individuals as they go about their business.  The unspoken premise, then, of the majority opinion in Strieff, is that a crime is a crime is a crime.  But this is no longer true (assuming it ever was), and the toxic mix of racial profiling and overcriminalization means that we should, at the very least, make sure that police have dotted all of the i's and crossed all of the t's before they are able to interfere with the liberty and privacy of individuals, even those individuals who have outstanding arrest warrants against them.  The line between innocence and guilt, then, might not be so clear as the majority believes.  For that reason alone, the possibility that an outstanding warrant unknown to a police officer might retroactively justify the officer's decision to stop an individual with no reasonable suspicion is a truly threatening prospect.

Wednesday, June 29, 2016

The Wages of Guerrilla Warfare Against Abortion

 by Michael Dorf

My latest Verdict column tackles the procedural issues in Whole Woman's Health v. Hellerstedt. The dissenters say that the procedural obstacles to the plaintiffs' case are so great that the majority's decision to reach the merits can only be explained by a set of special relaxed procedural rules for plaintiffs challenging abortion regulations. I explain why this claim is false.

I chose to write about the procedural aspects of the case because I had already opined about the substance, both to reporters (e.g., here) and in my own contribution to a SCOTUSblog symposium. I'm sure I'll have more to say at a later point, but for now I'll just republish the SCOTUSblog piece. Here it is:

The Wages of Guerrilla Warfare Against Abortion

During the oral argument last year in Glossip v. Gross, Justice Samuel Alito accused the lawyers arguing that Oklahoma’s lethal injection protocol was unconstitutional of trying to take advantage of a “guerilla war against the death penalty” by pressuring companies to make tested drugs unavailable and then challenging the untested substitute drugs as too risky. Alito apparently believed that the case against lethal injection was pretextual, that the real target was capital punishment itself. Because neither he nor the other four Justices in the Glossip majority were willing to invalidate the death penalty itself, they were not inclined to take seriously the arguments that the Oklahoma protocol was unconstitutional either.

Something similar happened in Whole Woman’s Health v. Hellerstedt. The challenged provisions of the Texas law known as HB 2 were defended by the state and pro-life activists as promoting the health of women seeking abortions. On their face, that was a just barely plausible claim. The requirement that a doctor performing abortions have admitting privileges at a nearby hospital seems related to health. So does the requirement that abortion clinics satisfy the state’s regulations for ambulatory surgical centers.

      But everybody knows that the Texas legislators who enacted HB 2 did so to limit abortion – not because they think abortions pose unacceptable health risks to women but because they think that abortion is immoral. HB 2 and similar legislation in other states that impose onerous restrictions on abortion facilities in the name of women’s health operate as guerilla warfare against abortion itself. Accordingly, Justices who believe that the Constitution protects a right to abortion were understandably inclined to view HB 2 skeptically, just as the Justices who believe that the Constitution permits the death penalty were likely to view the Glossip challenge skeptically.

In comparing Whole Woman’s Health to Glossip, I do not mean to suggest anything like precise equivalence. For one thing, as a recent Radiolab podcast explores, pharmaceutical companies themselves, rather than anti-death penalty lawyers, may be chiefly responsible for the unavailability of the previously used drugs. Moreover, even the old protocols are problematic, sometimes leading to hideously painful botched executions. And even if one thinks that there has been a guerilla war by anti-death penalty lawyers to render relatively safe lethal agents unavailable, that hardly justifies the ultimate decision in Glossip upholding the Oklahoma protocol, because condemned inmates should not be tortured as a means of disciplining anti-death penalty lawyers.

      Meanwhile, one does not need to question the motives of the Texas legislature to reach the result that the Court reached in today’s decision. The very first sentence of Justice Stephen Breyer’s majority opinion quotes the plurality opinion in Planned Parenthood v. Casey for the proposition that a law restricting pre-viability abortion is invalid if it has the “purpose or effect” of placing a substantial obstacle in the path of a woman seeking an abortion (emphasis in original). Yet the opinion does not in any way seek to uncover evidence of an illicit subjective motive on the part of the Texas legislature. It doesn’t need to. Despite the superficial connection to health, upon inspection, the challenged provisions of HB 2 bear no actual relation to women’s health.
      
      To show that the Texas law does not promote women’s health, Breyer’s opinion relies heavily on the findings of fact by the district court. The evidence is overwhelming. As a statistical matter, abortion is substantially safer than various other procedures that are not subject to either the admitting-privileges requirement or the surgical-center requirement. Indeed, these requirements are downright perverse.
      
      For example, Breyer explains that doctors whose practice consists chiefly of performing abortions will not be able to meet the admitting-privileges requirement, because hospitals only confer such privileges on doctors who regularly see patients in the hospital. Yet because abortion is so safe, such doctors almost never bring patients to the hospital. The very safety of abortion precludes satisfaction of a requirement that is justified on the ground of protecting women from the supposed risks of abortion.
      
If the unconstitutionality of HB 2 should be clear even if one does not begin with skepticism of the Texas legislature’s motives, then why wasn’t today’s decision unanimous? Because the dissenting Justices think the Court’s abortion jurisprudence fundamentally misguided. They were thus inclined to view a challenge to any abortion regulation unfavorably.

      The dissenting Justices today purported to apply the cases that find and define the abortion right, but they did so uncharitably. For example, Justice Clarence Thomas objected that whereas the Court in Casey had evaluated whether a law imposed an undue burden by looking to its impact on women seeking abortions, today’s majority sought to balance each legal provision’s burden against its supposed health benefits. Such balancing, Thomas said, was ruled out by Casey. But this is a strange objection. Even if Casey can be read to say that a law’s benefits are irrelevant to whether its burdens are due or undue, it certainly should not be read that way. Implicit in the very notion of an “undue burden” test is some comparison of costs and benefits. Only a Justice who is hostile to abortion rights could think otherwise.

Taken together, Glossip and Whole Woman’s Health may hold lessons for both litigators and legislators. In each case, lawyers whose real goal may have been much broader – abolition of the death penalty in one case, overturning Roe v. Wade in the other – made ostensibly narrow arguments within the existing legal framework. They succeeded in signaling to their allies on the bench which side they were on. Thus, in Glossip, Breyer wrote a dissent urging that the constitutionality of the death penalty itself be reconsidered. Likewise, in today’s case, Thomas repeated his view that abortion is not a constitutional right. But in each case, the lawyers failed to persuade Justices on the other side to rule for them on narrow grounds.

That should not be surprising. Justices know where they stand on ideologically fraught issues like the death penalty and abortion. Lawyers should be on notice that Justices cannot be tricked into ruling against their druthers, at least if the law leaves any wiggle room at all.

Meanwhile, legislators who seek to resist a regime of constitutional doctrine should also be put on notice that passing pretextual laws is risky. Even when they do not strike a law down based on the lawmakers’ illicit motives, the Justices will see through such motives.

For years, the pro-choice movement has argued that abortion restrictions are against women’s interests. More recently, pro-life activists and legislators have sought the enactment of restrictive abortion laws while claiming that such laws protect women from abortion. Today’s decision shows the limits of this approach as a legal strategy.

Still, one should not expect the so-called woman-protective rationale for abortion restrictions to disappear, even if laws enacted under this rationale continue to be struck down by courts applying today’s decision. The argument that abortion must be regulated because abortion harms women was never entirely a legal argument. It was also an effort to persuade the public that the anti-abortion movement is not anti-woman. With one vacancy already on the Court and a presidential election featuring a pro-life man against a pro-choice woman, the battle for public opinion about abortion is also, ultimately, a battle for the meaning of the Constitution.

Tuesday, June 28, 2016

Trump Reveals What He Really Cares About, and It Is Not American Greatness

by Neil H. Buchanan

Why, really, is Donald Trump still running for president?  Many commentators have opined that he surprised himself with his success, that he was originally following the same strategy as the other no-chance candidates who were angling for something other than the presidency -- a cabinet position, a slot on Fox News, more book sales and higher speaking fees, and so on.

In this telling, path dependence now finds Trump almost a victim of his own unexpected momentum.  He might well know, deep inside his addled brain, that he has no business being president.  In fact, he might not really want the job, but he is too proud now to walk away.  Besides, his ego will not allow him to give up on pursuing the greatest personal validation of all, becoming the leader of the most powerful nation on earth.

All of that might well be true, but if even if it is, the story is highly incomplete.  There is no good theory explaining why Trump says the outrageous things that he says, especially since so many of his statements are contradictory.  (Sometimes, even a single sentence will include opposing claims.)  Could he really be running for president while having no policy goals that he really cares about?

And if he has become besotted by the idea that he actually could win this thing, then it becomes even more difficult to explain why he would do the things he does that have caused his poll numbers to plummet, such as attacking a federal judge because of his ethnicity, or gloating about his purported ability to predict the Orlando murders.

The best explanation available, I suppose, is that Trump now refuses to change his approach to politics, because his instincts have taken him this far.  Why follow the advice of people who said that he would lose?  Again, there is something to that explanation, except that Trump has regularly backtracked on some of his more outrageous comments.  See, for example, his awkward repudiation of his assertion that women who get abortions should be criminally prosecuted, or his weird walk-back of his claim that the national debt can be renegotiated.

In short, almost everything that Trump has said and done seems to be contingent on little more than his mood, making the question about what he really wants to do as president all the more mystifying.  What does he really care about?

Trump's supporters appear to believe his claim that he will take the country back to its former greatness, no matter that he has never said how he would do that.  Trump's campaign has been a classic America-first sales pitch.

If American greatness were really his goal, however, he would view every issue through the lens of how it would affect the United States.  He would favor things that are good for us, whether or not they are good for anyone else.  And if something is good for us and bad for our rivals, then all the better.

This is why I was so surprised by Trump's positive comments about last week's vote in Britain to take the U.K. out of the European Union.  His comments -- which have already been widely mocked -- included the assertion that Brexit will "end up being a great thing."  The mocking of Trump, however, has mostly focused on his lack of awareness that he was speaking from a country -- Scotland -- that had voted strongly not to leave the E.U., that he was only there to promote one of his failing golf courses, and other eminently laughable aspects of his comments.

In my recent post lamenting the long-term political and economic dangers of the Brexit vote, I took only a few moments to mention Trump.  I noted: "If logic mattered at all, Trump should not care about that issue.  What, after all, does it have to do with making America great again?"  In the days since then, I have tried to put this question into a broader context, and the implications are even more worrisome than I initially described in that post.

Two of the countries that are have shown great interest in undermining the E.U. are Russia and China.  Although Trump has been rightly criticized for his positive comments about Russian President Vladimir Putin, that infatuation has seemed to be based on admiration of Putin's tough-guy style.  Trump before now has not actually said anything to indicate that he supports things that weaken the U.S. and strengthen Russia.  And Trump's list of supposedly anti-American threats always includes not just Mexico and Islam, but China.  China, after all, is the major country that Trump blames for stealing Americans' jobs, and whose goods Trump would tax heavily.

When Trump said that the Brexit vote will be "a great thing," he explained that "the people have taken the country back and there’s something very, very nice about that."  But again, what in Trump's avowed worldview should make that nice at all?  One group of non-Americans voted to harm themselves, based on unfounded fears about other groups of non-Americans who have moved into a country that is not the United States.  Even if it were not highly likely that this will end up harming the U.S. -- especially the struggling American working class that Trump is conning -- nothing about EU-UK relations should matter to Trump at all.

As I noted above, Trump has been notably inconsistent about his actual policy views throughout the campaign.  The only consistent aspect of Trump's candidacy to date has been unrelenting bigotry.  He has attacked immigrants, Muslims, and women.  When confronted, he raises the stakes rather than backing down.

And that thoroughgoing bigotry explains Trump's views on Brexit, too.  It is not just that some people somewhere have taken their country back from some unspecified outsiders.  No, it is older, angry, white people in England and Wales (who generally identify as Christians, although typically only in the nominal way that Trump himself claims to be a Christian) who acted on their fear and hatred of non-white, non-Christian people because their sense of superiority and power is threatened

If, by coincidence, it had appeared that the Brexit vote would somehow be good for the U.S., then we would not have been confronted with this moment of clarity.  But the closest allies of the U.S. will be harmed, and the countries that are the biggest threats to global stability have been strengthened by the chaos in Britain.  The U.S. will likely be harmed economically, but perhaps even more significantly, the foreign policy challenges facing the next president will now be immeasurably more difficult to navigate.

In short, if Trump really wanted to make America great again, he would have had every reason to repudiate the actions even of non-Americans who share his bigotry.  Why, from an America-first perspective, should people in this country suffer or sacrifice simply so that some non-American white people can have their way?

But Trump's candidacy is not, it turns out, devoted to the best interests of the United States.  When it came down to a choice between nationalism or bigotry, Trump's instincts told him to cheer for the bigots.  No one can say that he has been subtle about it.

Monday, June 27, 2016

Supreme Ghosts, Snake Oil Originalism, and the 2015-2016 Term

By Eric Segall

The Supreme Court of the United States wrestled with fascinating and at times even bizarre questions this term: Could Texas pass non-medically necessary laws regulating many of its abortion clinics out of existence (short and easy answer, no). Could Texas use race as a "factor of a factor of a factor" for roughly a quarter of its entering class when it previously used whiteness as a 100% factor to exclude all non-white students (hard and complex answer, yes). Could President Obama use the historically large deportation discretion of the Executive Branch to allow non-citizen parents of lawful children to openly perform jobs Americans refuse to do (Court was tied so for now, no). Does the free speech clause of the First Amendment prohibit over twenty states from requiring its workers to pay partial union dues to avoid freeloader problems (Court was tied so for now, no). And, in the most ridiculous Supreme Court case in a long time (well since last term's King v. Burwell), do religiously affiliated not-for-profit companies have the right to refuse to tell the government that they want an exclusion from federal requirements intended to prevent unwanted pregnancies even if they are guaranteed the exclusion once they actually ask for the exclusion (answer, stay tuned).

Although the Supreme Court faced these nationally important issues over the last nine months, this term will likely be remembered mostly for the death of Justice Antonin Scalia in February. His absence loomed large both on and off the Court. 

With the Senate refusing to even let Merrick Garland in the door for a hearing, the Justices had to live with an evenly-divided eight person Court for longer than usual. They seemed to deal with Scalia's absence better than most liberal pundits and commentators, however, who were left to ponder and dream about the possibility of liberals dominating the Court for the first time since most people reading this essay can remember. Personally, I was more sanguine about the depleted Court, thinking that making it harder for either side to push its own political agenda on an institution composed of life tenured judges educated at Harvard or Yale and fed at Georgetown dinner parties might be something folks of all political persuasions should actually get behind. If Trump is elected, just watch both sides quickly flip flop on the "need for nine."

Meanwhile, pundits and commentators, as well as Scalia’s former law clerks, and scholars of all stripes, debated the late Justice's life and legacy. Now that almost five months have passed since his death, I hope it is appropriate to try and be as honest as possible about the most "ludicrously overrated" Supreme Court Justice of his generation who, in the words of Eric Posner "tragically thought he could take politics out of judging but only made things much worse" Meanwhile, Judge Posner has been unsparing in his criticism of Scalia. The rest of this essay will not be for the feint of heart.

Justice Scalia was of course best known for his frequent rants about how important text and history (read original meaning) are to judges who have to decide constitutional law cases. But the truth is that he did not come close to voting in an originalist fashion during his long career. I have set forth the proof of this accusation in long version here, and Judge Posner and I sketched it more briefly on this blog here

In the areas of affirmative action, freedom of speech generally and campaign finance reform specifically, federalism, gun rights, takings, standing, and voting rights, among many others, Justice Scalia voted to strike down laws where neither the text nor the original meaning behind the text supported his votes. Scalia once said he was a "feint-hearted" originalist but later walked that back and then said he was an "honest" originalist. The truth is that he was a snake-oil originalist who sold a product he did not use himself.

One scholarly response to the argument that Scalia constantly voted in a non-textualist, non-originalist way through huge swaths of constitutional law is that in many of the areas of law listed above, there are plausible, even if not persuasive, originalist arguments in support of Scalia's votes (arguments excavated by extremely motivated law professors, not Scalia himself). 

Even if there are such arguments, which I seriously doubt, such speculations were not available to Scalia, who also spent much of his career arguing that life-tenured federal judges should not invalidate decisions by other political actors absent clear text or strong historical evidence. For some so-called New Originalists like Randy Barnett or Ilya Somin, who openly admit that they believe in strong judicial review by, in Scalia's words, "a committee of nine unelected lawyers," maybe reasonable historical evidence may be enough to sustain judicial aggression. But Justice Scalia never argued for that position. Instead, in most of the areas of law listed above, he simply either ignored or mischaracterized historical evidence while often stridently accusing other Justices of playing fast and loose with the rules of the constitutional game.

One of the most important cases this term demonstrates Scalia's hypocrisy. In his thirty years on the bench, Justice Scalia voted to strike down every affirmative action  plan he ever saw, and no doubt he would have done the same in Fisher v, Texas. Scalia always argued that the Constitution is color-blind, and thus the government using racial criteria to foster diversity and equality was constitutionally indistinguishable from the government using racial criteria to completely exclude an entire race of people from a government benefit. But at no time in his career did Scalia try to justify this strong policy preference with reference to the original meaning of the text of the Fourteenth Amendment. Given the ambiguous text of the that Amendment (which does not mention race) and the fact that the Amendment did not stand for color blindness from 1868-1954, and given Scalia's dislike of the "living Constitution," when exactly did the meaning of the 14th Amendment change? Scalia never provided an answer, which would be fine for "living constitutionalists" but not for someone who thinks the Constitution is frozen in time.

One former Scalia clerk claims he presented originalist evidence to Scalia that the ratifiers would have thought affirmative action to be constitutional (or at least would not have deemed it unconstitutional) only to have that data completely ignored. This tactic of overlooking unhelpful historical evidenced was the hallmark of the man who yelled that the Constitution is "dead, dead, dead" while consistently voting to strike down laws based on the Justice's very current perspective on what the Constitution should mean today.

Justice Thomas, who seemed very lonely this term often dissenting all by himself, ended his dissent in the abortion case Monday with a quotation from the man whose shadow hung over the term so darkly: "The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application." The constant finger pointing and chest thumping by Scalia and Thomas over the years that they applied "law" but the other Justices were doing something else marginalized both of them throughout their careers. Constitutional law is now and has always been about the clash of values. Maybe Thomas wouldn't have been so lonely this term, and maybe Scalia would have authored a few more majority opinions, if they had been more transparent about their own values.

And, speaking of values, as usual Justice Kennedy's values and the Court's values were one and the same. In the two biggest cases of this year's term (affirmative action and abortion) Justice Kennedy slid to the left in ways that would have prompted personal rebukes from Justice Scalia heard from Stone Mountain, Georgia to the curvaceous slopes of California. With Justice Kennedy in the majority this term over 97% of the time, we are again (actually we never left) living in Justice Kennedy's America, and gone are the good old days when Chief Justice Roberts jumped ship to save both the Affordable Care Court and the legacy of his, excuse me, of the Kennedy Court.

United States v. Texas: The Supreme Court’s Silent Endorsement of Trumpisprudence

By Anil Kalhan

United States v. Texas, summarizedIt may be tempting to regard the Supreme Court’s deadlocked decision last week in United States v. Texas, the Republican lawsuit challenging the Obama administration’s 2014 immigration initiatives, as something of a “non-decision” or “punt.” The Court’s one-line opinion—which, by convention, affirms the lower court’s judgment but has no further precedential effect—does not address any of the substantive issues presented in the case. Nor does the opinion itself disclose how any of the justices voted on any of the questions before them, although there seems little mystery as to which justices were likely on each side of the decision. And especially since the case came to the Supreme Court at the preliminary injunction stage, the litigation may be far from over—making it even more plausible to understand the Court’s decision as one that defers ultimate resolution of those issues.

At the same time, to characterize the Court’s decision as merely an “inability to decide” misses something consequential and troubling about that disposition. It is not merely the case, as Jack Chin and other legal observers have understandably lamented, that the Court “missed an opportunity here to give some guidance” on the controversial legal questions before it—which of course it did. Nor is it only the case, as Walter Dellinger has powerfully observed, that with the lives of millions of U.S. citizens and non-U.S. citizens at stake in this litigation, “[s]eldom have so many hopes been crushed by so few words”—about which he, too, is unmistakably correct.

In addition, by affirming the legally flawed and deeply politicized lower court decisions blocking the Obama administration’s immigration initiatives—the substance of which I have previously discussed in several essays for Dorf on Law (here, here, and here), an essay for Yale Journal on Regulation Notice and Comment, an essay for Washington Monthly, and an article in the UCLA Law Review Discourse—the Supreme Court’s decision necessarily embraces modes of legal analysis and adjudication that the Court should have openly and decisively repudiated. And by doing so instead under the cover of an opaque, unsigned opinion that reports only the bare fact of the Court’s stalemate, the four justices who voted to affirm those decisions—presumably Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—obscure their own roles from public scrutiny at the expense of transparency and accountability. (Which, as it happens, are among the very rule of law values that the Obama administration’s immigration initiatives themselves, by contrast, actually help to promote.) Both the continuities with and the contrasts to what has been transpiring in the political process this year are striking.

* * *

Who Said It: Donald Trump or Andrew Hanen?Like Donald Trump, Judge Andrew Hanen—whose preliminary injunction was affirmed by the Supreme Court’s 4-4 decision—is a man with some longstanding, violently hostile opinions about immigration and the Obama administration. In a series of cases dating back to 2010, Judge Hanen has issued impassioned but entirely gratuitous commentaries excoriating the Obama administration’s immigration policies and its policymaking officials at every turn—in each case exhibiting an unusually high degree of personal interest, animosity, and emotional involvement in immigration-related matters far afield from any of the issues that were properly before him as a judge. In a number of these opinions, Judge Hanen has exhibited a somewhat tenuous grasp of reality. For example, at one point Judge Hanen angrily (and wildly) accused the Obama administration’s immigration policymakers of hatching a “criminal conspiracy” with “evil individuals” to violate the immigration laws.

It is no secret that the Republican plaintiffs challenging the Obama administration’s immigration initiatives—well aware of Judge Hanen’s outspoken criticisms of the Obama administration—filed their lawsuit in Brownsville, Texas, precisely in order to steer its assignment to him. The claims in the lawsuit were rather weak—so weak, in fact, that in the meantime the plaintiffs largely abandoned the arguments that they originally advanced. Nevertheless, Judge Hanen vindicated the plaintiffs’ forum shopping by enjoining the Obama administration’s initiatives, in a sweeping 123-page ruling littered with provocative assertions about the ills of unauthorized migration. To substantiate the lawsuit’s weak claims, the opinion played fast and loose with the facts—for example, by repeatedly claiming that the initiatives “award legal status” to millions of “illegal aliens” when, in fact, they do no such thing. While the two appellate opinions by Judges Jerry Smith and Jennifer Walker Elrod affirming Judge Hanen’s injunction sought to rearticulate Judge Hanen’s clumsy and bombastic assertions in more refined terms, their analysis reproduced many of the same basic flaws that appear in Judge Hanen’s own decision.

Later, in denying the government’s motion for a stay, Judge Hanen doubled down on the false assertions in his original opinion and added the new, wildly untrue assertion that President Obama personally “ordered that the laws requiring removal of illegal immigrants that conflict with the 2014 DHS Directive are not to be enforced, and that anyone who attempts to do so will be punished.” To support this assertion, Judge Hanen pointed to extrajudicial information that he appears to have found on the Internet.

Given Judge Hanen’s obvious hostility towards the Obama administration and its immigration policies—along with an angry and emotionally involved approach to judging in these cases that at times seems to regard facts and truth as optional—it should hardly be surprising that some have characterized him as the Donald Trump of the federal judiciary. Interestingly, just as Trump has found it difficult to “pivot” to a more restrained and less controversial campaign for the general election, Judge Hanen, too, has found it difficult to tone things down and stay out of the headlines—even as the litigation has been pending before the Supreme Court.

Just last month—after oral argument had been held before the Supreme Court, but before its decision was issued—Judge Hanen issued a bizarre, almost paranoid order accusing Justice Department lawyers of intentionally lying to him about the manner in which the Obama administration’s 2014 initiatives were being implemented. As Stephen Legomsky and David Leopold have discussed at length, the factual basis for Judge Hanen’s accusation is highly dubious. Remarkably, in the course of his order, Judge Hanen proved incapable of even reciting the question presented to the Supreme Court in an impartial manner—maintaining that “the resolution of whether the Executive Branch can ignore and/or act contrary to existing law or whether it must play by the rulebook now rests entirely with [the Supreme] Court.” (The order also quotes at length from two movie scripts.)

To remedy the government’s supposed misconduct, Judge Hanen took the freakish step of ordering all DOJ lawyers to undergo ethics reeducation, conducted under his own ultimate superintendence, before being permitted to appear in court in any of the twenty-six states that have sued to challenge the Obama administration’s immigration initiatives. Judge Hanen also supplemented that continuing legal reeducation requirement with what effectively amounts to court-ordered doxing, directing the government to provide detailed personal information on over 108,000 unauthorized immigrants for whom deferred action under DACA was renewed prior to Judge Hanen’s February 2015 injunction—without even pretending to offer a plausible rationale that would justify those steps as appropriate remedies for the Justice Department’s alleged misconduct.

* * *

In this context, when the Supreme Court granted certiorari to review Judge Hanen’s preliminary injunction in United States v. Texas, it squarely and necessarily presented itself with the choice of whether it would embrace or reject the trumpisprudence and judicial truthiness that formed the basis for Judge Hanen’s decision-making—just as, in the realm of electoral politics, “mainstream” Republican politicians this year have been forced to choose whether to embrace or reject Trump himself as the party’s presidential standard bearer. In the political realm, that latter choice has caused many Republican politicians to squirm as they struggle to explain and justify their decisions. Or if they can get away with it, to try to have things both ways or to avoid explaining their choices at all. Witness, for example, the cringeworthy spectacle of Paul Ryan criticizing Trump’s attacks on Judge Gonzalo Curiel as “the textbook definition” of racism—before reaffirming his endorsement of Trump due to their “common ground.” And then multiply that by several hundred.

Faced with an analogous choice, Chief Justice Roberts and Justices Kennedy, Thomas, and Alito must be understood as having effectively endorsed Judge Hanen’s anti-immigration trumpisprudence and judicial truthiness. But unlike Paul Ryan’s endorsement of Trump, the justices’ endorsement of trumpisprudence will less easily face public scrutiny, for it has come silently and behind the cloak of a one-sentence per curiam opinion. With no judicial opinions giving reasons for their endorsement (and indeed, without even any formal documentation of how they voted) the justices have evaded any responsibility to explain and justify their decision—an obligation ordinarily understood as central to the judicial role. Ironically, some of the politicians squirming in the face of the choice whether to endorse Trump have performed better than the justices did in United States v. Texas in attempting to give reasons to explain and justify their choices—which is only to say that unlike the justices, at least some of them at times have made minimal attempts to do so, even if unpersuasively and unsuccessfully.

As noted above, the litigation in this case is by no means over—that is, assuming that Paul Ryan’s man Trump does not win the election and moot the lawsuit altogether by rescinding the Obama administration’s initiatives. But assuming that Trump does not win, the litigation will likely proceed to trial, after which it may return to the Fifth Circuit and eventually the Supreme Court, which might or might not by then (or ever) have a ninth justice. In the meantime, Judge Hanen’s other shenanigans, concerning the sanctions he wants to impose upon the Justice Department, will likely result in a separate trip to the Fifth Circuit and perhaps even the Supreme Court as well.

But regardless of what might later transpire in this litigation, public confidence in the judiciary as an institution has been disserved by how the Supreme Court and lower courts have handled this lawsuit to date. The bottom line for many will be this: partisan political actors maneuvered to steer a legally dubious lawsuit—one that seeks to invalidate initiatives that were lawfully instituted by a democratically legitimate president, and that deeply affect millions of people—before a rogue judge with a checkered history of gratuitous, anti-immigration commentaries, and successfully obtained a partisan result from that judge even though the factual and legal bases for their claims were highly questionable. Four justices of the Supreme Court not only endorsed and gave effect to that politicized judicial assault, but also evidently have embraced modes of contention more appropriately relegated to the political process, if even there. And they did so without giving any reasoned explanation for that endorsement. In the process, the traditional norms of judicial fact-finding and reasoned adjudication have taken a significant hit. It is difficult to disagree with Dellinger's conclusion that the result constitutes a “signal failure of democracy.”

Friday, June 24, 2016

Brexit and the Unraveling of Peace Through Prosperity

by Neil H. Buchanan

Although polls indicated that the British referendum on leaving the European Union was likely to be a fairly close vote, somehow it did not seem possible that the vote could go the wrong way.  Maybe the surprisingly lopsided defeat of the 2014 Scottish independence vote made people too comfortable.  Maybe it was the sense that considerations of actual self-interest would somehow dominate paranoia and chauvinistic fantasies.  In any case, we wake up today to the shocking reality that the UK has actually voted to leave the EU.

My first thought upon reading the news -- that is, my first coherent, not oh-my-God-what's-happening, thought -- was that this is the most potent example yet that my biggest fear might be coming true, that the Great Recession and its aftermath have set in motion what could well become the disintegration of liberal democracy in the world.  Yes, that sounds like apocalyptic overstatement.  It now looks more plausible than ever.

It should be said that soon-to-be-former Prime Minister David Cameron deserves credit for fighting on the right side of this referendum.  True, he has been justly criticized for creating this problem, agreeing to the vote to mollify extreme members of his party while imagining that nothing could possibly go wrong.  Even so, he did campaign aggressively for the "Remain" side, which is what he should have done.

But if ever there were a case of too little, too late, this is it.  Cameron personified the disastrously smug response to economic despair that we have seen among conservative politicians in the UK, Europe, and the US ever since 2009 (and, really, since at least 1979 with Margaret Thatcher's election as British Prime Minister, soon followed by Ronald Reagan's presidency here).  Rather than try to deal with the ravages of the Great Recession, Cameron and others insisted on unlearning the hard-earned lessons of the Great Depression and decades of evidence and experience.

People are unemployed?  Not to worry, Cameron and his allies assured the world, because all we need to do is rely on "expansionary austerity" -- the completely evidence-free idea that all the private sector needs is for the government to cut spending, ushering in a wave of business investment that would more than make up for the government's retreat.  Why would businesses invest in a failing economy?  Confidence!

The Confidence Fairy never arrived, and workers everywhere paid the price.  Cameron was hardly alone, of course.  The Germans have taken the lead in forcing even more crippling austerity on weaker countries across Europe.  Chancellor Angela Merkel, who also deserves some credit for being less extreme than others in her country, similarly imagined that the biggest problem facing Europe was excessive government spending.

Now, with the Brexit vote on the books, the long-suffering Greeks are understandably talking about finally getting out from under Berlin's misguided policies.  And Scotland, which voted overwhelmingly for Remain, will now seriously reconsider breaking off from Britain.  In a few short years, regions and countries could break up, with borders sealed off and problems elsewhere left to fester.  An analogy to gated communities is tempting, but the atmosphere is hardly one that would call to mind anything resembling a community.

In some ways, Cameron and Merkel are "lite" versions of Republican leaders in the U.S., thinking that they could contain the nihilists in their ranks rather than being consumed by them.  Five years ago, I pondered what the billionaires who bought the Republican Party must have been thinking as the new Tea Party-led majority in the House rushed toward what turned out to be only the first of many debt ceiling showdowns.  None of this can be what the oligarchs had in mind, but these political crises are the inevitable result of what they set in motion.

Which explains, I think, why Donald Trump immediately treated the result of the Brexit vote as nothing but good news.  If logic mattered at all, Trump should not care about that issue.  What, after all, does it have to do with making America great again?  Having a dysfunctional, but intact, European Union is arguably actually better for the U.S., but it is at least not obvious how we would gain from the breakup.

But Trump knows that his power stems from the spreading of hatred and fear, and so he cheers for those who play the same disgusting, cynical game that he plays.  Sure, it might turn out that the collapse of the European Project could result in economic damage to the U.S. and even in the spilling of more blood in Europe and elsewhere, but why should Trump care?  The people who blame problems on Others are on the march, and Trump believes that that is good for him.

One of the more bizarre comments on the Brexit vote was offered in a New York Times news article (not an editorial) published immediately after the votes had been tallied.  The reporter wrote: "The British campaign featured assertions and allegations tossed around with little regard to the facts. Both sides played to emotion, and the most common emotion played upon was fear."  Can you smell the false equivalence coming?
"The 'Remain' side, citing scores of experts and elite opinion, warned that leaving the bloc, a so-called Brexit, would mean an economic catastrophe, a plunging pound, higher taxes, more austerity and the loss of jobs.

"The Leave side warned that remaining would produce uncontrolled immigration, crime and terrorism, with hordes pouring into Britain from Turkey, a country of 77 million Muslims that borders Syria and Iraq and hopes to join the European Union."
This is simply bizarre.  The two sides "played to emotion" because they both said that people have reason to fear the results of leaving or remaining.  But the fear that the Leave side was peddling was based on a never-ending onslaught of lies, from the false claims about the costs of the UK's membership in the EU to Trump-like assertions about terrorists pouring across the border.

John Oliver's "Last Week Tonight" this past Sunday brilliantly exposed the lies of the Leave campaign.  (Video available here.)  The problem is that the British press has spent decades stoking Englishmen's fears and hatreds toward Europe, which English expat Oliver also hilariously lampooned with a series of off-the-cuff putdowns of random European countries.  As Oliver would be the first to say, however, this is not funny.

Meanwhile, what is the fear that those Remain agitators were stirring up?  Apparently, they irresponsibly "tossed around" some "assertions and allegations" from those "scores of experts" who were saying that Brexit "would mean an economic catastrophe, a plunging pound, higher taxes, more austerity and the loss of jobs."  I guess it is possible that those experts will all be proved wrong, but this is simply not the same as fear-mongering.  It is a logic- and evidence-based assessment of the negative consequences of leaving the EU.

If one person tells you that he is afraid of the consequences of being shot in the face, while another person tells you that he is afraid that stepping on a crack will break his mother's back, are they both merely being emotional?  There is a difference between healthy fear and irrational fear, after all.

Obviously, all is not lost.  This could be a wake up call to those who have allowed themselves to believe that the emergence of fear-mongering, naked lies, and appeals to people's worst nature are merely an unfortunate spasm of temporary insanity.  Maybe even some conservatives will now remember that people are least generous when they are economically insecure, and that ungenerous people can easily be incited to do things that are dangerous for themselves and the world.  We can hope.

Thursday, June 23, 2016

In Fisher II Justice Kennedy Finally Puts His Vote Where His Rhetoric Was All Along

by Michael Dorf

At the end of a Supreme Court term, the law clerks put on a show in which they depict the justices, gently (or not so gently) poking fun at their bosses' personal foibles and jurisprudence. These are not public events and so what we know about them comes from leaks from a very unleaky institution. Nevertheless, a story is told that one year the law clerk portraying Justice Sandra Day O'Connor sang a song to the tune of the Rolling Stones' "Beast of Burden" with the lyrics "I've never seen an undue burden." The idea was that although Justice O'Connor's concurring and dissenting opinions in abortion cases had suggested that abortion restrictions would be invalid if they constituted an "undue burden," she had voted to uphold every abortion restriction to come before her. And that was true, until 1992 when she joined with fellow Republican-appointed Justices Anthony Kennedy and David Souter to co-author an opinion (joined in key parts by two other Republican-appointed Justices, Harry Blackmun and John Paul Stevens) striking down one provision of a Pennsylvania abortion law as an undue burden. We will find out next week whether the version of the undue burden test adopted in that case--Planned Parenthood v. Casey--invalidates the Texas law being challenged on the ground that its health justifications are pretextual at best. But for now I want to note that what happened in Casey for Justice O'Connor was a put-up-or-shut-up moment. Having led Court watchers to think that she was at least potentially open to retaining abortion as a constitutional right, Justice O'Connor finally got off the fence and proved it.

While we wait for the Texas abortion case to come down (probably Monday of next week), let us turn our attention to another Texas case. Not the anti-climactic non-decision in the immigration case that leaves millions of undocumented immigrants in the shadows until there is a ninth justice appointed by President Clinton or President Trump's storm troopers round them up, but the dramatic ruling this morning in Fisher v. University of Texas at Austin (Fisher II).

With Justice Kagan recused in Fisher II, the Court ruled 4-3 that the limited use of race in admissions by UT is constitutionally permissible. The majority opinion in Fisher was written by Justice Kennedy, and the case was for him with respect to affirmative action what Casey was for Justice O'Connor with respect to abortion (although Casey was also that for Justice Kennedy). In prior affirmative action cases--especially in his dissent in Grutter v. Bollinger and his concurrence--concurrence in the judgment in Parents Involved in Community Schools v. Seattle School Dist. No. 1--Justice Kennedy had said that he accepts that diversity is a compelling interest in education and that he was unwilling to treat the Equal Protection Clause as proscribing all use of race by government. But like Justice O'Connor with respect to abortion in her pre-Casey days, Justice Kennedy sometimes gave the impression that he was all talk, because before today, he voted to strike down every race-based affirmative action program to come before him as a Justice.

Before today. Justice Kennedy's opinion in Fisher II will no doubt be read as narrow, and in important ways it is. He warns at the end that UT should not take the Court's decision as authorization to use its existing program indefinitely. The evaluation and re-evaluation of the need for race to achieve the university's goals that play a crucial role in rejecting Fisher's challenge must continue. Other colleges and universities are now on notice that they too may need to be pro-active in continually reassessing the use of race in their admissions programs.

That said, Justice Kennedy's opinion is, in many ways, quite broad. He repeatedly points out that the "Ten Percent" program in Texas makes the case unusual. (Quotation marks indicate that with a 75% cap on enrollment under the program, it's now more like a seven percent program.) Perhaps more importantly, Justice Kennedy favorably cites Justice Ginsburg's observation in the first Fisher case (Fisher I)  that while formally neutral, the percentage plan was “adopted with racially segregated neighborhoods and schools front and center stage.” This is an important signal that the Court will not require state universities to adopt percentage plans or to try them before resorting to holistic review that includes race.

In addition, Justice Kennedy recognizes how the Court's prior cases set up a seeming Catch-22. On the one hand, if race is too big a factor, then the program is not narrowly tailored. On the other hand, if its use only makes a small difference, then the program is also not narrowly tailored. Justice Kennedy rejects this heads-I-win-tails-you-lose rule, treating the relatively modest use of race by UT as appropriate and as evidence that UT really is trying to achieve diversity through race-neutral means as much as possible. Likewise, Justice Kennedy does not fault UT for failing to precisely quantify such goals as diversity or critical mass, rightly recognizing that this too is a trap, given how unfavorably the Court's prior cases treat any effort to convert the benefits of racial diversity into a number.

Justice Alito is thus not wrong in his dissent when he says that UT failed to meet an apparent requirement of Fisher I.  Justice Alito writes: "The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve." But given that this is a trap, to the extent that Fisher I required such "specificity," i.e., quantification, Justice Kennedy is surely right in Fisher II to move away from such a requirement. Justice Alito's conception of a specificity requirement is really nothing more than a way to disguise a rule that categorically disallows race-based affirmative action. But if that's the point, then he (and CJ Roberts) ought to say so expressly, by joining Justice Thomas, whose separate dissent calls for categorical color-blindness.

To be fair, although Justice Alito and CJ Roberts have previously purported to apply Grutter, they have never said that they think it was rightly decided. Justice Kennedy did, after a fashion. Although he dissented in Grutter because he thought that the University of Michigan Law School's program was not actually narrowly tailored, he agreed in principle that diversity in higher education is a compelling interest that can justify a narrowly tailored program of race-based affirmative action. He paid what was at least lip service to that idea, which has now been part of our law for 38 years (since the Bakke case). Today, Justice Kennedy showed that it was more than lip service. His Fisher II opinion puts his vote where his rhetoric was all along.

Wednesday, June 22, 2016

The Questionable Utility of Life Without Parole for Juveniles

By Sherry F. Colb

In my Verdict column for this week, I discuss the Supreme Court case of Montgomery v. Louisiana. Montgomery held that the case of Miller v. Alabama, which held that mandatory life without parole ("LWOP"), when imposed on juvenile offenders, violates the Eighth Amendment ban on cruel and unusual punishments, must be applied retroactively on state collateral review to cases in which the convictions at issue have already become final.  This meant, in Montgomery itself, that a 69-year-old man who was sentenced mandatorily to life without parole about 50 years earlier should have been given the opportunity on state collateral review, after Miller was decided, to challenge his sentence under Miller in state court.  In my column, I suggest that the way in which the Court reaches its conclusion--by deeming Miller a case announcing a substantive rather than a procedural rule--indicates the likelihood that the Court will soon see fit to find LWOP sentences for juveniles unconstitutional across the board, regardless of whether they are mandatory or not.

In my column, I propose that the Court's ruling in Montgomery itself, though perhaps disingenuous, is--from my perspective--a good ruling that heads us in a positive direction.  But why do I think so? Because the "without parole" part of a life sentence had a particular utility when the death penalty was ascendant, and it currently lacks that utility.  Consider what I mean by this.  If your client has just been found guilty of murder with aggravating circumstances and faces the possibility of a death sentence, you want the jury to know that if it sentences your client to "life imprisonment," your client will never leave prison; that is, he will not have the opportunity for parole.  Indeed, your client has the right to have the jury be made aware of this fact (if it is in fact true).  The reason for this right (and for your desire to notify the jury of the lack of parole) is that if the jury knows that parole is not a possibility, then it will not be tempted simply to impose the death penalty as a way to ensure that your client is never released from prison.  LWOP, in other words, serves the purpose of decreasing the felt need for a death sentence.  If we as jurors know that a dangerous and violent person will never leave prison, we are less likely to experience a fear of reoffending that we might experience if we believed that "life imprisonment" actually meant "20 years with good behavior."

As Justice Scalia pointed out in his dissent in Montgomery, one of the reasons that the Court gave in Roper v. Simmons for eliminating the death penalty for juvenile offenders is that LWOP provides an adequate substitute for death.  LWOP, then, serves as a backup plan when execution is a possibility but the goals to be achieved by execution can be equally attained with LWOP.  Faced with the two options of death and LWOP, jurors (and in Roper, the Court) may be favorably inclined toward LWOP.

Now, however, the death penalty for juveniles is unconstitutional.  Furthermore, the death penalty for non-homicide individual offenses is unconstitutional, under Kennedy v. Louisiana.  And, as the Court held in Graham v. Florida, LWOP--the most serious of punishments available for juveniles--may not be imposed on a juvenile guilty of a non-homicide offense.  In Miller, the Court stopped short of ruling out LWOP for all juveniles, however; it simply held that mandatory LWOP is impermissible for juveniles.  But then Montgomery came along and treated Miller as a substantive constitutional case, rather than a procedural one, thus re-characterizing Miller as essentially ruling out LWOP for virtually all juveniles.

So the question is whether it remains important to retain LWOP for that small number of juveniles who might be incorrigible and thus need to be locked up for the rest of their lives to adequately protect society.  And my answer to this question, following on the heels of what appears to be Justice Kennedy's likely answer (based on his opinion in Montgomery), is no.  So long as a juvenile offender may be sentenced to life imprisonment, the default can still be that he or she will remain in prison for the rest of his or her life.  But if it turns out that he or she does in fact change over time and become a better person, a kinder person, a person who no longer poses a danger of hurting others if he or she is released at, say, the age of 69, then the absence of LWOP will mean that a parole board could decide to release him or her at that time.

If what we know about aging criminals is true of most individual offenders--that dangerousness evaporates over time, with the drop in hormones and other changes that accompany aging--there will usually be good reasons to release the juvenile offender before it is time to bury him or her. Some crimes may be so terrible that no one wants to contemplate releasing the offender ever.  But the possibility of parole does not mean that anyone will ever have to release him or her.  It means only that when time has passed and behavior has changed, there will be an opportunity to revisit the judgment that the offender truly belongs behind bars for the rest of his or her life.  And absent the need to provide the sentencer with an attractive substitute for the death penalty, it seems unnecessary to tie our hands with that phrase "without the possibility of parole" anymore, for juveniles and, perhaps some day, for adults as well.

Tuesday, June 21, 2016

Clinton-Bashing As the Last Gasp of the Republican Party

by Neil H. Buchanan

What is it about Hillary Clinton that bothers Republicans so much?  Even more than her husband or President Obama -- indeed, more than any politician within anyone's memory -- Clinton evokes a seething, blind hatred from those on the opposite side of the aisle.

This is especially difficult to understand in light of Clinton's notably successful efforts at bipartisanship while she was in the Senate, as well as her history of center-right policy views that positioned her very much on the right end of Bill Clinton's triangulating administration.  That she has more recently adopted some center-left views is, I am sure, an unpleasant development from the standpoint of Republicans, but their hatred of Hillary Clinton long predates any of that.

Last week, I wrote about Clinton's "high negatives" in polls with voters and how those poll results are erroneously likened to people's much more negative views of Donald Trump.  It has become an established trope of in-the-know political commentary that the two presumptive nominees are both widely reviled.  As I pointed out, however, people can use words like "dislike," "untrustworthy," and similar negative terms in quite different ways: "People can say that they 'hate' getting food poisoning at a restaurant, and they can also say that they 'hate' when the chef uses too much cumin in the curried potatoes."  Both statements are honest, but they are also not at all comparable.

Still, many Republicans will tell you that Hillary Clinton is like food poisoning, not merely an unpalatably spiced dish.  To a large degree, this is the result of Republicans having spent years sitting around campfires telling stories to each other about the Clintons, seeing who can spin the most scary yarn.  She has come to embody the Blair Witch, a succubus, and every frightening villain that Republicans can conjure.

I understand, therefore, that Clinton hatred is somehow both precognitive and post-cognitive; but because I am always most interested in issues, I am fascinated by the mismatch between Clinton's actual not-at-all-extreme policy views and Republicans' visceral revulsion toward her.

One of the ways that Republican elected officials have tried to deflect attention away from the outrages of Donald Trump is by painting Clinton as an unthinkable alternative.  For example, an unknown Republican back-bencher in the House recently said of Trump's series of outrageous statements: "Am I offended sometimes at the comments? Yes I am.  However, what offends me more are Hillary Clinton’s actions."

In a way, trying to analyze that statement is pointless.  After all, many members of Congress have dreams of leadership positions, cabinet posts, and so on.  (Is there anything that indicts political careerism more completely than the idea that some politicians with no interest in, say, labor issues would surely crawl through broken glass to become Trump's Secretary of Labor?)  But watching political animals in their natural environment can be very revealing, and it is notable that this particular congressman thinks that it is somehow meaningful to distinguish Trump's mere words from Clinton's supposed actions.

Unless this guy actually thinks that Clinton killed Vince Foster, what "actions" could he possibly be talking about?  Trump has been telling us in no uncertain terms what actions he will take if he becomes President, and Clinton has been doing the same.  Clinton's policy views are different from most (but not all) Republicans', but Trump is raising serious doubts about whether electing him would be the turning point toward a post-constitutional autocracy in the United States.

It is one thing for the increasingly ridiculous Paul Ryan to say that "the last thing we want is a Democrat in the White House like Hillary Clinton."  (Seriously?  The "last thing"?  She is really worse than a person whom even Ryan describes as obviously racist?  Electing her would be worse than a political coup?  Worse than a presidency that would destroy Ryan's political party?)  Ryan is in over his head on both policy and politics, a career politician trying to figure out how to pretend to be a serious adult, and he cannot stop himself from reverting to over-the-top partisanship.

Today, the New York Times Magazine published a fascinating long-form article by Mark Leibovich, in which he discusses the various forms of denial currently at work in the Republican Party.  Discussing the sad post-primary life of Marco Rubio, Liebovich writes: "Rubio also holds the astonishing position of saying he’ll vote for someone he has previously declared unfit to hold the American nuclear codes. You envision him under a mushroom cloud, assuring his kids that it could be even worse — at least he didn’t vote for Clinton."

This level of anti-Clinton derangement has certainly trickled down to the party's grassroots.  Leibovich describes the never-Trump senator from Nebraska, Ben Sasse, who told Leibovich that people in his state "say: 'I’m distraught. I’m opposed to everything Hillary Clinton stands for, and yet I think I have to vote for her. How do you make sense of this? What should I do?'  These are young evangelical women, teary sometimes. They say, 'I can never tell my kids I voted for that man.'"

Even allowing for rhetorical excess, can it really be true that a young woman in Nebraska is opposed to everything that Clinton stands for?  Other than abortion, which is obviously a high-salience issue for many such voters, what has Clinton ever said or done that would make it possible to say that she is on the bad side of every (or nearly every) issue?

Thankfully, some Republicans are willing to admit that this has gotten out of hand.  Leibovich offered two insightful comments from Republican insiders.  Ed Rogers, a Reagan/Bush I alum who now is a Republican lobbyist, said: "The Clintons have never been the demons ideologically that we’ve made them out to be.  From a character standpoint, they’re pretty bad, but Hillary isn’t the frightening offensive character that Trump is."

Whether one thinks that her character is "pretty bad" depends on how willing one is to ignore the fact that all of the investigations of the Clintons have turned up nothing but a lot of innuendos and unsubstantiated suspicions.  Hillary Clinton has a tendency to become insular when attacked, but I cannot imagine anyone enduring the lifelong character assassination that Clinton has faced without becoming highly defensive.

Perhaps the "character" point was best summed up by John McCain's chief of staff Mark Salter, who told Leibovich that Trump is "just unfit for office," whereas, "I mean, the worst thing you can say about her is, she’s kind of a hack."

And that is exactly right.  About the worst thing that you can say about Hillary Clinton is that she has sometimes been kind of a hack.  The negative things that I have written about Clinton over the years, in fact, have been based on the idea that she sometimes tends toward hackishness, such that one could reasonably suspect that she will allow short-term political calculations to color her views of, say, a financial regulation bill or a question of military strategy.  That is hardly comforting, but how does that make her different from Mitch McConnell, or Ryan, or McCain, or holier-than-Trump Mitt Romney?  How does it make her the second coming of the Wicked Witch of the East?

By contrast, the best things that you can say about Clinton are that she is extremely well informed on issues, that she has actually done a lot of good things both inside and outside of public office in working for change (especially in fighting for the rights of women and girls in the U.S. and around the world), that she is incredibly tough, and that she actually takes into account new evidence and logic to adjust her views.  There are good reasons for a 1990's center-right Democrat to have seen the light and moved to the center-left, after all, and she has been willing to learn and change.

If all the Republicans can do now is continue to hope that saying "Hillary Clinton!!" enough times will scare people, then that tells us more about their lack of anything useful to say than it does about Clinton or the Democrats.

Monday, June 20, 2016

What Bernie Should Seek and What Hillary Should Give, Part 2: Primaries Process

By Michael Dorf

In Friday's post, I asked what the prospects are for Bernie Sanders using such leverage as he has to move Hillary Clinton closer to the policy positions he favors. I concluded that on most issues, Clinton finds herself in the unusual position of being able to move to the left without harming her standing with general election voters.

In addition to seeking policy concessions, the Sanders campaign has also indicated that it would like to see reforms in the way that convention delegates are selected in future nominating contests. To be sure, Sanders has been inconsistent these issues. Early in the season, his campaign complained about the role played by super-delegates because there was a chance that Sanders would win more pledged delegates but end up losing the nomination due to super-delegate support for Clinton. More recently, Sanders suggested that despite trailing Clinton in pledged delegates, he should get the nomination because super-delegates should switch their support to him as the more electable candidate (according to polls asking about hypothetical matchups). Thus, the Sanders position has not exactly been principled. Despite some appearances to the contrary, Sanders is, after all, a politician.

So what procedural reforms, if any, should Sanders seek? In a blog post three months ago, I explored how measures that make a party's method of selecting its candidate more small-d democratic for party members will typically work against the nomination of an electable candidate. The short version is that the preferred candidate of the median voter in the party will be pretty far from the median general election voter. A variety of mechanisms are used by the parties to prevent this outcome. The two main ones are super-delegates and either open primaries or primaries that allow same-day party registration. Super-delegates care and know more about electability than do primary voters, the theory goes. Meanwhile open or quasi-open primaries attract independents, whose participation will tend towards centrism.

Uncharacteristically, the just-concluded Democratic primary season was unusual. (The Republican primary season was obviously unusual as well, but my focus here is on the Democrats.) The more-left candidate, Sanders, actually appealed more strongly to independents. Partly this is just a matter of race. In many ways, Sanders was a conventional "alternative" Democrat, who appealed to young, educated, white voters--somewhat more successful but in the same mold as Paul Tsongas, Bill Bradley, and Howard Dean before him. Meanwhile, Clinton did best in states with larger proportions of minority voters, especially African American voters. The early Sanders spin on this phenomenon--that Clinton was winning the South because Southern voters are more conservative--was at best highly contestable.

Okay, but what does it all mean? That depends on what the Sanders goal of reform is. If he values intra-party democracy for its own sake, then he should seek the abolition or substantial reduction in the role of super-delegates. He should also seek the replacement of caucuses with primaries, even though, other things being equal, Sanders did better in caucuses than primaries. The barriers to participating in caucuses are substantially higher than to participating in primaries.

Open or quasi-open primaries are a harder call. Whether one should favor them on principles of intra-party democracy depends on what one means by intra-party democracy. Allowing independents or Republicans to participate in a Democratic primary can undermine the ability of "real" Democrats to choose their nominee, even without shenanigans (like Republicans deliberately voting for the weakest  general-election candidate in the Democratic field). But for whatever reason the Sanders campaign has generally promoted open primaries.

If the small-d democratic reforms I'm imagining had been in effect in the recent primary season, they probably would not have affected the outcome. Clinton wins even without super-delegates, albeit by a smaller margin. More open or quasi-open primaries would have helped Sanders, but more primaries and no caucuses would have helped Clinton.

What about going forward? If we assume that over the long run party leaders will continue to be out of touch with the American people, then eliminating or reducing the role of super-delegates is a no-brainer. I'm not persuaded that party leaders (who are themselves mostly elected officials in one way or another) will be out of touch going forward, but I think that a very popular case can be made for a package of "pro-democracy" reforms that consists of: 1) eliminating super-delegates; 2) replacing caucuses with primaries; and 3) making primaries open or quasi-open with same-day party registration. These intra-party reforms should be packaged with promotion of a policy agenda of making voting in general elections easier and campaign finance reform that together would make a powerful case for the proposition/slogan that The Democratic Party is the pro-democracy party.

Note, however, that two of these three reforms would probably tend to make the Democratic nominee less progressive, assuming that in future elections we would otherwise see the resumption of the normal pattern, whereby caucus-goers are on average more progressive than primary voters and open-primary voters are less progressive than closed-primary voters. Eliminating super-delegates would tend to make the nominee more progressive, however. Whether that effect is large enough to counteract the other effects is anybody's guess. Because super-delegates are about 15% of total delegates to the Democratic convention, under the existing rules in theory it would only take 35% of the pledged delegates plus super-delegates to block a very progressive candidate judged by party leaders to be too progressive to win the general. Thus, eliminating super-delegates probably does at least balance out the impact of the other reforms in terms of how centrist or progressive the nominee is--in most nominating contests.

If we therefore assume that the ideological impact of the package of reforms described above is likely to be small in any event, then there is really no reason not to get behind it. True, Clinton would not want to eliminate super-delegates because she would expect them to support her. But the truth is that it shouldn't matter to her anymore. If she loses the general to Trump, she's finished as a politician. If she wins, then she should win the 2020 nomination handily even without super-delegates. If she would need super-delegates to defeat a primary challenger in 2020, that would mean that she was always going to lose the 2020 general anyway. (Ted Kennedy's 1980 challenge to Jimmy Carter is the key precedent here.)

So bottom line: In a rational world, the Sanders people and the Clinton people would unite behind the package of procedural reforms I've described above, just as they should find considerable common ground on policy, as described in Friday's post. Put differently, the remaining obstacles to a harmonious Democratic Convention and general-election campaign are mostly personal, not policy-based.

Friday, June 17, 2016

What Bernie Should Seek and What Hillary Should Give, Part 1: Policy

by Michael Dorf

Although Bernie Sanders has not officially endorsed Hillary Clinton, his recent statements clearly indicate that he understands that she will be the Democratic nominee. Nonetheless, coming into the convention with a large number of delegates, Sanders wants to use his leverage to influence the general election campaign, how Clinton governs if elected, and the rules for future presidential elections. In this post, I'll explore questions of policy. In Part 2 on Monday, I'll tackle the process questions for future presidential nominations.

In some sense, what we are now facing is a very standard scenario. A candidate who is farther to the left than the nominee (or to the right when we're talking about the GOP) hopes to use whatever leverage he has to pull the nominee closer to his position; the nominee wants to give enough to the runner-up to appeal to the runner-up's primary supporters, without moving so far from the center as to undermine her ability to "pivot" to attract centrist voters. Sanders, a self-described democratic socialist, is to the left of Clinton on a variety of domestic and foreign policy issues, and so this dynamic looks familiar, at least superficially. And yet, closer scrutiny reveals that the Sanders-Clinton configuration is highly unusual, in a way that ought to make it relatively easy for them to come together on most policy questions.

For most of the primary season, polls showed that Sanders would do better than Clinton against any possible Republican nominee. It was not clear whether these polls were truly predictive, however. Whereas Clinton was a very well-known entity whose high negatives were driven partly by two and a half decades of Republican attacks, Sanders was relatively unknown. It was easy to imagine that if Sanders got the nomination he would be mercilessly red-baited by the GOP nominee, surrogates, and super PACs.

Maybe it would have worked; maybe it wouldn't have. But the key point is that what might have driven Sanders down would have been his past positions and the label "socialist," not the policies that he has been espousing during the campaign: skepticism of various free-trade agreements; much greater government financial support for higher education; single-payer health insurance; a higher minimum-wage; and greater reluctance to use force in foreign affairs. Although I have been skeptical of facile comparisons of Sanders to Trump, there is substantial overlap there, and the seemingly amazing fact is that these pretty clearly left-of-center policies are quite popular, not just among the core Democratic constituencies but even among many people who identify as Republicans.

Thus, by moving to the left on most of the issues Sanders cares about, Clinton could actually increase her appeal to Sanders supporters and to independents and some Republicans. What we have discovered in this primary season is that on areas of seeming bipartisan consensus--such as free trade and relative hawkishness on foreign policy--leading elected officials for both parties are to the right of the electorate as a whole. Accordingly, Clinton should be able to move closer to positions Sanders has espoused without fear of losing support from general-election voters.

And indeed, to some extent that has already happened. Sanders supporters might worry that Clinton only moved to the left to win the primaries in a classic example of a Democratic candidate running to the left in the primaries, then pivoting to the center or right for the general, and in a normal election year, that would be a fair worry. But if Clinton's team is savvy, they will realize that there is no downside to sticking with positions she may have taken simply to appeal to the Democratic primary electorate.

With respect to trade, one worry is that by moving closer to the Sanders position Clinton could lose the support of Republicans who are alienated by Trump's much more extreme anti-trade proposals. But this seems like a small effect. Decent Republicans who can't vote for Trump because he is a racist authoritarian are not going to turn around and vote for him because Clinton's trade policy inches a little closer to Trump's.

The bigger worry for the Sanders crowd should be that while Clinton might campaign in the general as a free-trade skeptic, once in office she'll be pro-free-trade agreements. This is indeed a real worry. Clinton's current views on trade could well be opportunistic. Like Obama and Bill Clinton, she probably does favor free-trade agreements, even when they lead to harm to various domestic industries, because she believes that they benefit the U.S. economy on net.

Yet, as Professor Buchanan has explained, much of our public debate about trade rests on the completely false notion that there is such a thing as "free trade." When one properly understands the differences between Sanders and Clinton as matters of emphasis and degree, it becomes clear that it would be hard to predict exactly which trade policies each would favor and oppose. To the extent that, other things being equal, Clinton's policy preferences would more often incline her to support a free trade agreement than would Sanders's policy preferences, that's a reason for Sanders to use his leverage for trade policy.

On most of the other issues that Sanders holds dear, he probably doesn't need to do very much asking. That's because on such matters as raising the minimum wage and expanding Medicare, Clinton already agrees (or will agree after thinking things through) that the Sanders proposals are good policies and good politics.

The one significant exception is foreign policy. Clinton really is much more of an interventionist than Sanders. In the general, she will emphasize her experience and the fact that Trump could easily start a shooting war because of a personal insult. But once in office, there could arise circumstances in which Clinton would be quicker to use force than Sanders would.

I don't see a good way for Sanders to use his leverage for a more dovish foreign policy. Perhaps his surrogates could get some language inserted in the party platform about the importance of moving U.S. foreign policy on the Middle East to be more critical of Israeli policy, which would be a symbolic victory for some Sanders supporters, but with the exception of briefly misstating the Palestinian death toll in the last Israel-Gaza war, the actual positions taken by Sanders on the Israel/Palestine conflict are not very different from those promoted by both Bushes, Obama, and both Clintons. Compromise language could likely be found for the platform, but this would not have any impact on the conduct of U.S. foreign policy more broadly.