Thursday, July 26, 2018

Let's Be Clear About What Makes Kavanaugh a Bad Choice

by Neil H. Buchanan

There is no question that Brett Kavanaugh's elevation to the Supreme Court would cause a catastrophic change in American jurisprudence.  Indeed, the same can be said of anyone whom Donald Trump might nominate to fill the retiring Justice Anthony Kennedy's seat.  In that context, I was happy last week to receive a letter being circulated by some law professors in opposition to Kavanaugh's nomination, and then to see that letter reproduced as a guest post on this blog a few days ago.

The letter was styled as an appeal to Republican Senators Susan Collins and Lisa Murkowski, both of whom have records suggesting support for Roe v. Wade, which any Trump nominee would vote to overturn.  Writing such a letter is always difficult, however, because it will almost invariably include particulars that might not be germane or necessary to the point but that will put off potential signers.  In this case, I found myself unpleasantly surprised by a negative comment in the letter about a recent Supreme Court case, South Dakota v. Wayfair, which was used to demonstrate Justice Neil Gorsuch's willingness to overrule precedent.

To be clear, I agree that Gorsuch -- like his soulmates Justice Clarence Thomas and Kavanaugh -- thinks nothing of throwing over precedent whenever it suits his ideological purposes.  This is a serious problem, but not every example of a vote to overrule is as good as any other, and the Wayfair case is in fact a particularly unhelpful example.

To be even more clear, I want to emphasize that nothing I say here is meant to disparage the authors of the anti-Kavanaugh letter.  They plainly proceeded in good faith, and I emphatically agree with their conclusion.  My argument here is limited to the claim that, in their effort to build a case against Trump's nominee, they included one unfortunate example.

Because I had recently been thinking anew about Wayfair, this gives me an opportunity to discuss some interesting aspects of the case on their own merits, a discussion that I think provides some important lessons.  After discussing those issues, I will return to the question of how one decides whether to sign onto a group letter with which one disagrees only in part.

Wayfair saw an unusual 5-4 split, with Justice Ginsburg and Chief Justice Roberts switching teams.  Ginsburg and the four non-Roberts conservatives agreed, in an opinion written by Kennedy, that every state can require out-of-state companies that make sales to the state's residents to collect sales taxes, just as the state can require in-state companies to do.  Roberts wrote a dissent that was joined by the three non-Ginsburg liberalish justices.

Sounds pretty boring, right?  More to the point, it sounds kind of obvious.  After all, what in the world could justify a legal regime in which a person can evade her state's tax liabilities simply by buying from an out-of-state vendor (and then failing, as almost everyone does, to self-report her out-of-state sales)?  That harms the state by reducing revenues for schools, roads, and everything else that states do, and it also harms in-state brick-and-mortar stores (which are struggling to survive in any event) and their employees and neighborhoods.

What could prevent a state from leveling the playing field between in-state and out-of-state retailers?  A bad Supreme Court precedent, that's what.  Actually, two ridiculous precedents.  Some readers might push back at my blunt characterizations of those precedents as "bad" and "ridiculous," but the most important fact to note here is that all nine justices agreed -- Roberts and the other dissenters quite explicitly -- that the relevant precedents were indefensible.  The entire case depended on how and when bad precedents should be overturned, not on overturning precedents on which the justices were split as to the merits.

Bellas Hess and Quill, which Wayfair overrules, can be described (as the law professors' letter does) as "two well-established precedents," but their repeal is easily justifiable, and the law in the wake of Wayfair is anything but unsettled.  Those precedents claimed that the Dormant Commerce Clause (DCC) prevented states from leveling the playing field unless an out-of-state retailer had established a "substantial nexus" to the state by having a physical presence (such as a warehouse) in the state, not simply selling goods to people in the state.  Where did that requirement come from?  It was invented, and none of the current justices would defend it.

The 5-4 split, then, was caused by a disagreement over when the Court should act to fix an error in the DCC context.  Professor Dorf's column discussing Wayfair last month nicely discusses how Kennedy's opinion misses the mark on some DCC-related arguments along the way, but he concluded that it is nonetheless defensible in its holding even on DCC grounds.

Gorsuch wrote a very short concurrence making a key point.  (Frequent readers of this blog surely know how much it pains me to find anything positive to say about the man who occupies a stolen Supreme Court seat.)  The dissenters argue that Congress, not the Court, should act to overrule Bellas Hess and Quill, which Congress can do in the DCC context.  Gorsuch points out that this is an unusual situation, however, because the standard question under the DCC is how to fix problems that states themselves have created (erecting barriers to out-of-state commercial interests), whereas here the Court was simply correcting its own error.

This is, therefore, a case in which a majority of the Court thought it was appropriate to remove a barrier that it had created through its own error years ago.  Again, all nine justices agreed that those precedents were wrongly decided.  That clearly distinguishes Wayfair from cases like Janus v. AFSCME, which I recently pointed out was one of the worst decisions of the Court's recent term.  In Janus, the majority simply invented a reason to undermine organized labor and was willing to destroy a sensible compromise that the Court had forged forty years ago in Abood.

One might worry, however, that even a situation in which overruling a prior case is wholly justified can nonetheless set its own bad precedent by making overruling of all cases more likely.  That is the concern that makes Wayfair potentially relevant to Roe.  There is also the possibility (which one can sense in Gorsuch's short concurrence) that the case is being used as a building block in something bigger that the conservative justices are constructing.

I would worry about that, too, but for the fact that Ginsburg signed onto the majority in Wayfair.  Moreover, she did not write a separate concurrence saying anything along the lines of: "I want to be clear that the holding in this case does not stand for the proposition that ______."  This is a case with no political valence of its own, and the justices simply split regarding when the DCC requires the Court to keep its powder dry.

In short, it is simply inaccurate to use Wayfair to support the claim that Gorsuch misled the Senate during his confirmation hearings when he claimed to respect precedent.  Gorsuch did do that, but this is simply not evidence of it.

It would be like saying that African-American men are too often accused of being sexual predators and then pointing to Bill Cosby's prosecution, or saying that female comedians are often ill-treated and pointing to Roseanne Barr's firing, as examples to support the point.  The larger point is true, but the examples completely miss the mark.

Everyone knows that precedents will sometimes be overruled.  Indeed, everyone wants that to continue to be the case.  I do fear that Roe and many other important precedents will be tossed aside by the post-Kennedy Court, but I do not think it is necessary to over-claim in saying that every failure to respect precedent is an example of bad faith.  (On the other end of the political spectrum, my GW Law colleague Jon Turley recently disparaged Kennedy's lack of fealty to precedent, also citing Wayfair as an example.  So this is not a liberal-versus-conservative thing.)

All of which brings me back to the question about what to do when one is asked to sign a letter with which one substantially agrees but that contains what one knows to be an inapt example, to put it as bloodlessly as possible.  In the current context, however, one need not answer the question, because I continue to believe that Murkowski and Collins are not in any way in play.

I understand why we are all going through the process of pretending that the confirmation hearings will matter, and I hope that Senate Democrats will find some argument or damning fact that will sink Kavanaugh's nomination.  If that happens, however, it will not be because of any impact (even a cumulative one) of a letter co-signed by me.

Without a bombshell, the impact that my signature might have on decisions that I think Murkowski and Collins have already made is somewhere between vanishingly small and nonexistent.  If anything were truly in play, it would be possible to argue in favor of putting my narrower concerns as a law professor aside in the larger service of preventing a conservative rout of the courts.  But in the world in which we live, that is not happening.

Justice Ginsburg was right in Wayfair, and at least in current circumstances, there is no reason for progressives to ignore that fact.  Brett Kavanaugh will almost surely become the next Supreme Court justice.  Even so, people of good conscience should oppose him, and there are plenty of good arguments for doing so.

5 comments:

David Ricardo said...

Thanks for pointing out and emphasizing the hypocritical nature of the so-called moderate Republican Senators. For a year and a half we have had teasing from Senators Flake, Corker, Murkowski, Collins, and occasionally Ron Johnson, Dean Heller and even Rand Paul on the issue of standing up for principle rather than party.

In the end all of these individuals cave to ultra Conservative votes. They are more disgusting for their posturing than the openly ultra Conservatives who make no secret of their disdain for everyone other than wealthy white males.

Shag from Brookline said...

Might this "posturing" be better described as "Conservative Offensive Crouch"?

Joe said...

Wayfair is cited as an example of a wider concern about precedent. The choice can be criticized, especially since Congress still has the power to regulate in this area and there is a reasonable argument for the result. Precedent does change over the years. But, I think it is hard to write such a letter free from anything open to criticism. Seems a venial sin.

Lawrence Solum sees Kavanaugh as a promising opening to an originalist future or some such & he has had a back/forth with Rick Hasen on the point recently. Hasen wrote a book on Scalia and the variable nature of his jurisprudence. Fellow blogger Eric Segall has tweeted that he tried to engage with Solum (citing a Dorf on Law piece) & the net result was that Segall was blocked.

Joe said...

BTW, Kennedy is not officially retired ...

http://lyldenlawnews.com/2018/07/23/kennedys-last-task-something-familiar/

David Ricardo said...

Actually Kennedy retired several years ago, handed in his dignity, his reputation and his respect for people and positions that are contrary to Scalia and joined the 'Me Too' movement. No not that one, the one that says when conservatives say this is how they want to the law to be, he said "Me Too".