Goodbye and Good Riddance to 2025: Let's Stop Accepting Frivolous Constitutional Arguments
2025 is almost in the books and it cannot end quickly enough. Our country has descended into a nation that looks more like Biff’s domain from Back to the Future II than the nation I used to know and love.
Personally, a few weeks ago a scary 95% blocked artery
to the heart (now fixed) made me reflect on my own life in beneficial ways. I am incredibly grateful for my family and my friends. In the end, they matter the
most, of course.
I am 67 and have been teaching and writing about constitutional law for over half my life. I have said much of what I want to about the Court (that isn’t one) and the menace who currently sits in the White House. But I hope to continue stirring up trouble for at least a few more years. I’ll start right now as this crushing year comes to an end.
Our country is facing far more severe crises than our awful Supreme Court. But most of those problems are beyond my professional expertise. The current terrible state of constitutional law is, however, my wheelhouse.
The Supreme Court consistently adopts hopelessly weak legal arguments that the justices use to achieve their political and ideological goals. Given the Constitution’s ancient and imprecise text, its contested history, and the justices’ life tenure and strong tradition of aggressive judicial review, the opinions that emerge from this institution look like legal decisions but are actually no more than the aggregate of the justices’ value preferences. This critique is (mostly) non-partisan.
And the fault doesn’t stop at the Court. As a whole, constitutional law professors are nowhere near as skeptical about the institution as they should be. Of course there are eras where conservatives have strongly lashed out, and today liberals are almost always angry, but most critics lament results, not process, specific justices, not the institution.
There have been some movements from time-to-time
(legal realism and critical legal studies) that take aim more generally, but legal scholars have an incentive to emphasize the "legal" element of what the Court does so we can keep our turf. Constitutional law professors are excellent at making hopelessly poor legal
arguments seem, if not persuasive, at least somewhat reasonable, even when, stripped to the bottom, they simply are not.
Professor Balkin has described
how “off the wall” legal arguments can get put on the wall by ambitious academics,
pundits, and social movements. Professor Sandy Levinson often wonders on the legal discussion list Mike and I both participate in if there are
any frivolous legal arguments left when it comes to our constitutional world. The
answer to Sandy's question, sadly, is no.
This post is not about bad results. There is almost always room for reasonable disagreement about the Court's important cases. But absurd and dishonest legal reasoning should have no place at the Court or in legal scholars' defenses of the Court.
In cases that that they care about, Supreme Court justices will adopt any reasoning to get where they want to go without any shame. And that is wrong and dangerous. It role-models anti-legal behavior for lower courts, lawyers, and our legal system as a whole. And when the justices do that, the criticism should be fierce. But legal scholars have a way of depersonalizing that bad behavior.
Here are three classic examples of this type of bad-faith legal reasoning (yes, I'm sorry, but bad faith). I could easily provide fifty more examples.
In NFIB v. Sebelius, one of the issues was
whether Congress could require people to buy health insurance as part of a
comprehensive overhaul of America’s health care system. The Constitution gives
Congress the power to regulate “commerce among the states.” This mandate was one
small part of a thousand-page law governing the buying and selling of health
care in this country. That trillion-dollar market involves the movement across
state lines of medicines, x-rays, contracts, people, etc. Everyone, even the
Court, admitted that the mandate was an important part of the entire plan.
Five Justices concluded that Congress did not have the power under
the commerce clause to require people to buy health insurance because Congress
does not have the power to require people to buy commercial goods.
But why not? Nothing in the Constitution says Congress can’t do that, and the 1792 Congress made males over a certain age buy guns to be used for mandatory militia service. The federal government today mandates that we pay taxes, report for jury duty, and register with the Selective Service. There is no anti-mandate provision in the Constitution. Congress cannot regulate commerce by establishing religion or through cruel and unusual punishments or by abridging free speech. Government mandates to buy commercial goods might be bad policy (or not) but they simply violate no constitutional text..
Of course, in NFIB, the Court went on to label the insurance mandate a constitutionally valid
tax despite the fact that the President and Congress that enacted the law emphatically said it
was not a tax in order to sell it to the public.
But the argument that there is an exception to the
commerce clause for mandates is just a fantasy rule made up by the justices. Congress was regulating a
trillion-dollar industry affecting the commerce of every state, with much of
that money moving between the states. It was a quintessential example of a
regulation of “commerce among the states.” But, for political reasons only,
five justices made up a fake exception to that power, and one that may tie
Congress’ hands in the future. No legal scholar in America should ever have
affirmed this monstrosity of make-believe. And yet….
A much more consequential example of frivolous judicial
fantasy was used by the Court to destroy a key
provision of the Voting Rights Act. Here is a summary of what I’ve written before
about this sordid tale.
Chief Justice Roberts invented a "fundamental principle" of "equal state sovereignty" in two important voting rights cases: Northwest Austin v. Holder, and Shelby County v. Holder. Both cases involved Section 5 of the Voting Rights Act. In Northwest Austin, the Court resolved the issue on statutory grounds, but Roberts wrote the following:
The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty. Distinctions can be justified in some cases. ‘The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.’ (citing South Carolina v. Katzenbach). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.
As other scholars have
pointed out, before Roberts wrote this paragraph, there never was any, much
less a "fundamental," principle of equal state sovereignty limiting
Congress's powers. In fact, as
to the 15th Amendment specifically, the provision governing race discrimination
in voting, the Court in Katzenbach explicitly rejected the alleged
rule in a part of the very sentence that Roberts cites above,
but which he sneakily replaced with an ellipsis. Here is the original passage from Katzenbach:
In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.... The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.
Notice how
the phrase "for that doctrine applies only to the terms upon which States
are admitted to the Union," disappeared from Roberts's quotation.
Nevertheless, in Shelby County, Chief Justice Roberts used the alleged
"fundamental principle" of equal state sovereignty to argue that
Congress needed strong reasons to treat different states differently despite
the undeniable facts that no text in the Constitution supports such an idea,
and the unambiguous text of the 15th Amendment says that Congress may enforce
it through all "appropriate legislation." He simply cited his own
opinion in Northwest Austin, which completely and in bad faith misquoted
Katzenbach.
The idea that Congress cannot treat some states differently when it comes to racial discrimination in voting (absent a strong reason) when Congress uses its authority under the Reconstruction Amendments was an "off-the-wall" legal argument inconsistent with text, history, and precedent. Yet, by mere ipse dixit, Roberts employed this facile idea to render much less useful what many people think is one the most important statutes ever enacted by the Congress of the United States--the Voting Rights Act. This doesn't mean Congress can treat different states differently for any reason--just that it can do so for reasonable reasons--which was surely the case with regard to racial discrimination in voting, as Justice Ginsburg's dissent forcefully demonstrated.
Although many legal academics have strongly criticized the opinion, not enough have called out the fraud that the Court perpetuated when it came to its invented doctrine of “equal state sovereignty.”
Finally, and to show that my critique of frivolous judicial reasoning (and the Court generally) is non-partisan, let’s discuss a case the result in which I have no problem with: Romer v. Evans. The following is lengthy and detailed but necessary to prove the point I am making.
This decision invalidated a state constitutional amendment
that prohibited any city or town in Colorado from including sexual orientation in their anti-discrimination laws. At the time of the decision, Bowers v. Hardwick was good law, meaning Colorado was constitutionally permitted to put adult gays
and lesbians in prison for engaging in private sexual same-sex conduct (a reprehensible
decision reversed years later, thankfully). The Colorado constitutional
amendment said the following:
NO PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN, OR BISEXUAL ORIENTATION. Neither the State of Colorado…nor any of its political subdivisions…shall enact, adopt, or enforce, any statute, regulation, ordinance or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have any claim of minority status, quota preferences, protected status or claim of discrimination.
This amendment was a response by certain groups to
various measures enacted by local and state governments prohibiting discrimination on the basis of sexual orientation. For example, at the time Amendment 2 was proposed,
three cities (Denver, Boulder, and Aspen), had ordinances prohibiting
discrimination against people because of their sexual orientation in
employment, housing, and public accommodations. Other cities and towns in Colorado
did not have such statutes. In Colorado, it was already illegal to fire anyone
for any legal, off-work conduct. Colorado did not criminalize same-sex intimacy.
The amendment was enjoined before it went into effect.
One of the issues in the case was whether it prohibited any and all claims of discrimination
by gays and lesbians or just prohibited anti-discrimination laws including sexual orientation. Everyone agrees (I hope) that if the amendment prohibited any and all claims of discrimination based on gay or lesbian status or conduct, that would
be an almost literal violation of the 14th Amendment’s equal
protection clause. But if the law did nothing more than decide at the state
level that civil rights statutes at the local level could not include sexual orientation discrimination, that would be vastly different, as no city or town had an obligation to enact such laws.
The Court could have said sexual orientation is a
suspect classification and therefore the amendment had to pass strict scrutiny and
failed. I would have agreed with that reasoning. But that is not close to what
the Court did.
The Court asked whether the amendment’s reach was
broader than the prohibition of specific laws and policies granting gays and
lesbians civil rights protections. The Court said that it was a
"fair" reading of the Amendment that it deprived gays and lesbians also
of the protection of general laws that forbade "arbitrary discrimination
in governmental and private settings." The Court noted that, although this
interpretation of the amendment was possible, the Colorado Supreme Court did not
resolve the issue and neither would the Court.
The Colorado Supreme Court did, however, unambiguously resolve that issue, and
a state supreme court’s interpretation of a state law or amendment is binding
on the Supreme Court. Here is what the Colorado Supreme Court said:
It is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age . . . marital or family status . . . veteran’s status . . . and for any legal, off duty conduct such as smoking tobacco. Of course, Amendment 2 is not intended to have any effect on this legislation but only seeks to prevent the adoption of antidiscrimination legislation intended to protect gays, lesbians, and bisexuals.
Thus, the amendment only prevented the “adoption of
antidiscrimination legislation” intended specifically to protect “gays,
lesbians, and bisexuals.” Nevertheless, the Court said that the amendment did deny
gays, lesbians, and bisexuals “protection across the board,” and struck down
the amendment under the usually deferential rational basis test. Strictly speaking, the Supreme Court's mischaracterization of the Colorado Supreme Court's opinion was not necessary. The majority opinion went on to say that Colorado's Amendment 2 violated the federal Constitution "even if . . . homosexuals could find some safe harbor in laws of general application." But one wonders then why the majority went out of its way to characterize the amendment in a way at odds with the Colorado Supreme Court's definitive ruling.
Overall, the U.S. Supreme Court's reasoning is completely frivolous. Numerous
liberal legal scholars tried hard to justify the result on other grounds (as I have above) but
almost none of them called out the bankruptcy of the majority’s actual reasoning. Here
is why it is frivolous:
1) After the amendment was enacted, gays and lesbians
still received the protection of general laws against discrimination just like everyone else according
to the Colorado Supreme Court.
2) Under Bowers, Colorado could have put people
in prison for engaging in same-sex sexual activities: if Colorado could do that, it
certainly was under no obligation to include sexual orientation discrimination in its civil rights laws.
3) Whether sexual orientation discrimination (or any other form of discrimination) is illegal or not can be decided by a town, city, or state and
the federal interest stays exactly the same.
4) No legislature, state or federal, has any constitutional obligation to give any group civil rights protections against private discrimination, nor does the Constitution prohibit the repeal of statutes that give such protections. (Congress could repeal Title VII tomorrow).
5) What could possibly be “irrational” about Colorado’s decision not
to list sexual orientation in its anti-discrimination laws, when at
the time most states did not give such protections and neither did federal law?
The reasoning of Romer would get an “F” on any constitutional
law exam. As I said, I would have reached the same result in other ways, but
that is not the point. The point is that almost no liberal legal scholars
agreed with me when I argued all of this (much taken from Scalia’s dissent, which was awful and offensive for other reasons). But they should have. Tolerating this kind
of frivolousness just leads to more frivolousness, and that is a serious
problem with how the legal academy treats the Supreme Court of the United States. The reasoning in Romer is no better than that in Shelby County or NFIB v. Sebilius.
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2025 has been a dark year. I hope but can’t say I
expect 2026 to be much better. But no matter what, Happy New Year to everyone,
and thanks to everyone for reading Dorf on Law.
Eric Segall