Thursday, August 02, 2018

SCOTUS Term in Review: Taint, Complicity, and Polarization

by Michael Dorf

Today (beginning at 9 am Eastern time) I will once again be participating in the annual Practicing Law Institute Supreme Court Review in NYC. If you're interested, it may still possible to sign up, at least for the online or recorded version. I'm on a fair number of panels, including the overview panel. Here I'll preview some of what I plan to say for the overview panel.

Unless I end up being pre-empted by someone else on the overview panel, I intend to use most of my time to lay out a story that I've previously developed about the role of taint and complicity in the past Term's cases. Mostly I want to explain that taint and complicity loomed large over the Court's cases. I will then float a hypothesis to explain why. First, the cases:

Abbott v. Perez: The 5-4 conservative majority finds that the illicit racial motivation that went into a 2011 map did not affect the districts for 2013, thus rejecting a racial gerrymandering claim.

Trump v. Hawaii: Applying a highly deferential standard in light of the context, the 5-4 conservative majority finds that President Trump's anti-Muslim bias was not sufficiently clearly the decisive factor in motivating Travel Ban 3.0 to invalidate it as religious discrimination.

Janus v. AFSCME: The 5-4 conservative majority finds that the obligation of non-union members of a collective bargaining unit to pay fees to a public employee union, even for bargaining-related matters, so implicates the non-members in speech they may find disagreeable as to violate the First Amendment.

National Institute of Family and Life Advocates v. Becerra: The 5-4 conservative majority finds that the obligation of a crisis-pregnancy center to post a notice about state-supported abortion services so implicates the pro-life pregnancy center in abortion promotion as to violate the First Amendment.

Masterpiece Cakeshop v. Colorado Civil Rights Comm'n: Justices Breyer and Kagan join the five conservatives to hold that statements that the majority deems disrespectful of religion tainted the state's decision to hold a religiously scrupled baker civilly accountable for violating a public accommodations law by refusing to bake a wedding-style cake to celebrate a same-sex ceremony -although Kagan, joined by Breyer, writes a concurrence indicating how narrow their join is, depending on the commission's having articulated the wrong reasons for an otherwise permissible decision. The Court did not decide the core complicity claim of the baker, but that issue will likely return, and we have every reason to expect an ideological divide again when it does.

Some other cases could be shoehorned into the taint/complicity framework, but I'll stop there. In addition, there were obviously a great many other cases the Court decided last Term that were not about taint or complicity. Still, five is a fair number. And the pattern is striking.

(1) Note that in every one of these cases, all of the conservatives found taint when doing so advanced the ideologically conservative position and didn't find taint when not doing so advanced the ideologically conservative position. The liberals were likewise as predictable, with only the partial exception of the highly qualified Kagan/Breyer join in Masterpiece. One ready explanation, what we might call the null hypothesis, is that findings of taint and complicity are so readily manipulable that justices will really just vote their ideological priors.

(2) A slightly more sophisticated version of the null hypothesis contends that the conservatives are likely to find that individuals have a right to opt out of some legal obligation to avoid complicity (Janus, NIFLA, and Masterpiece), whereas the liberals are likely to find that an illicit motive by the government taints some government decision.

(3) To state that, however, is not to provide a justification for any sort of decision rule. Should the Court's approach to tainted government decisions be broadly similar to its approach to complicity? If not, why not? And what is the right approach to complicity claims? Of late, conservatives have advanced individual complicity claims, but such claims need not have that valence. The very model of a complicity claim - that of a conscientious objector to military service - has a left/liberal skew.

(4) Needless to say, I'm not going to solve the complicity or taint problems in a blog post. I do want to close with a hypothesis to explain what appears to me to be an uptick in the prevalence of taint and complicity issues in high-profile SCOTUS (and lower court) cases: I would suggest that polarization plays an important role. As American politics has become more polarized, two phenomena can be observed: (a) People who are subject to government power exercised by their political opponents are increasingly likely to question the motives of government officials, thus increasing the number of illicit motive cases, which in turn increases the number of cases posing the question whether an illicit motive tainted government action; and (b) greater distance from one's political opponents means one is increasingly likely not only to want to eschew support for one's opponents views, but to deem any association with them - even via such mundane acts as selling baked goods to them - as complicity in what one deems their wrongdoing.