Broccoli, Birthright Citzenship, and How to Confront Terrible Constitutional Arguments
In the Spring of 2012, the most publicly discussed constitutional law question of the day was whether the Supreme Court would strike down the Affordable Care Act. The justices had scheduled three days of oral argument--an unprecedented event in modern times. There were numerous issues in the case but almost all the attention was focused on whether Congress had the power to require Americans to buy health insurance under its Article I authority to regulate “commerce among the states.”
Virtually
every liberal law professor to discuss the issue publicly thought the answer
was easy: health care and health insurance were trillion-dollar industries affecting
the commerce of every state and among the states. Moreover, there is not a syllable
in the Constitution prohibiting Congress from using economic mandates to regulate
commerce. Most pundits agreed. The wonderful Dahlia Lithwick told me that she would
publicly eat my book Supreme Myths if the Court said the law was beyond Congress’ commerce
clause authority and struck down the law.
I was a
lone voice arguing that, unless the Obama Administration dramatically changed
its prior litigation strategy, the Court would likely accept the absurd argument
floated by conservatives that if Congress had the power to require us to buy
health insurance, it could also mandate that we buy broccoli. It turns out that I
was right about that prediction even if I failed to see that Chief Justice Roberts
would change his mind at the last minute and uphold the mandate as a valid tax
even though he joined the other four conservatives to conclude that the commerce
clause could not justify the mandate (an impossibly wrong decision based on
text, history, and precedent).
My
prediction had nothing to do with law, and law had nothing to do with the Court’s
ultimate decision. Whatever drove Chief Justice Roberts to save the statute (though an
important part was invalidated), and whatever drove the conservatives to invent
out of nothing a “no mandate” limitation on Congress’ commerce clause authority, law played at best a minimal role.
I have
speculated that one of the reasons Roberts voted to uphold the law as a tax was
that up to that point in time he had never voted with the liberals in a 5-4 constitutional law case, and at the time the Court was considered by most commentators to be the “Kennedy
Court,” not the Roberts Court. That trope changed dramatically after the case
was decided. Whether my lay psychology explanation is valid is not the
point. What is important is that predictions before-the-fact and explanations
after-the-fact need to go well beyond legalisms.
Last week, JD/PhD student Pranjal Drall and Professor Samuel Moyn of Yale Law School co-authored a three-part blog post on Balkinization comparing the lead-up to the absurdly stupid broccoli argument and this week’s birthright citizenship case, which the Court will hear on Wednesday (I am going to talk about only Moyn because I am not familiar with Drall's prior work. You can find parts 1, 2, and 3 of their blog post here, here, and here, respectively.).
There is
much to discuss about these posts but I want to focus on what I think is Moyn’s
central concern: liberal scholars when faced with absurdly bad legal arguments
in important constitutional law cases should seriously consider not engaging with
those arguments because these kinds of decisions are much more about the politics
and personal values of the justices than law. Moreover, by engaging with
these frivolous arguments on the playing field of legalism, liberal scholars
may actually move those contentions, in Jack Balkin’s words, from off-the-wall
to on-the-wall. Moyn wrote the following:
The NFIB experience might have taught liberals that ridicule and disbelief are not winning strategies. The individual mandate challenge did not succeed or fail based on the quality of legal argument. It turned on political dynamics that determined which readings of the Commerce Clause were conceivable and credible. If that is also true for the Citizenship Clause, then academics ought to openly discuss whether it makes sense to engage on originalist terms at all, whether to call out the revisionism as a political project rather than a scholarly one, and whether to attack the good faith of the elite legal actors on the other side pretending otherwise.
Those are strategic judgments with difficult tradeoffs. The normalization of your enemy’s argument might happen anyway…and perhaps this mode of engagement is strategically necessary because current judges ultimately need to be supplied “originalist” arguments for birthright citizenship. But treating routine engagement on the merits as the only option, without even acknowledging the choice, is the mistake liberals made in NFIB and are making it again here, even if this particular mainstreaming effort is likely to fail. Doing so requires collusion on interpretive method, which moves our jurisprudence to the right, and may be extremely ill-advised if it obscures other options that are far less costly or more viable or both.
Moyn named
numerous law professors in the piece, including my colleague Anthony Kreis as
well as Jed Shugerman, Paul Gowder, and Evan Bernick. All four, among many more (like Yale’s Akhil Amar, also discussed in the post), have written publicly
about the obvious weaknesses of those arguing that Trump’s Birthright Citizenship Executive Order is or even might be constitutional (it is not under the law). Bernick responded on social media wondering what Moyn
actually wanted them to do in the face of such misleading accounts of text,
history, and precedent:
The notion that it is somehow inconsistent to 1) claim that the anti-birthright arguments are meritless and then 2) refute them on the merits, is just wrong. “I can’t believe I’m here. These arguments suck. Here’s why” is entirely consistent. The idea that [the defenders of the Executive Order) needed my help to get their arguments taken seriously is also wrong. I engaged precisely because I saw that they were being taken seriously and I did not want them to march unopposed to the Supreme Court.
This
debate is about a fundamental question raised by an overly aggressive and obviously
political Supreme Court. What is the best way to fight objectively weak legal
arguments which may well be accepted by the justices for political or ideological
reasons? Moyn’s central thesis is that liberals should seriously consider refusing
to play on the field of text, history, and precedent because those factors will
not deter the justices from making decisions based on other factors. Bernick counters that leaving that playing field altogether will
undoubtedly make it easier for the Court to adopt bad legal arguments. I
suspect he, as well as most other legal academics, also believe that their job
is to “set the record straight,” as part of their job descriptions and in the scholarly pursuit of clarity and truth. After all, when the Court embraces inaccurate history, more damage is done than just a bad result in a single case. That faulty history lies there to be misused in the future. This disconnect from reality, for example, has been a serious problem for lower court judges and others in the Second Amendment context.
Similar
issues have arisen among anti-originalist liberal scholars over whether they
should play the “originalism game” in amicus briefs and legal scholarship. It is
well-accepted on the left that the justices only use originalism when doing so
is consistent with their prior beliefs about how a case should be decided. Will
pretending originalism really matters help move the Court away from bad
decisions or should we just refuse to play the game because, as the
broccoli fiasco demonstrated (and there are many other examples such as
presidential immunity and voting rights), the justices will do what they want
to do regardless of the merits of legal arguments. Why tacitly accept a mode of
reasoning that is both absurd and likely irrelevant to how the Court ultimately
decides cases?
These are
important questions to discuss. One does not have to be a core legal realist to
accept the idea that politics and values matter a lot to the Supreme Court (and
obviously not just to the conservatives). But it is also true that presenting nakedly
non-legal political arguments to the justices might alienate them even more, as
will telling them that originalism is stupid and hopelessly biased against
women, people of color, and religious minorities. Moyn would likely respond that it is better not to engage at all with the justices and try to use other political means to further desired outcomes.
But Supreme
Court litigation and constitutional law scholarship do not have to be zero-sum
games. There is space to make both kinds of arguments. There is room for
litigators and scholars to suggest that the Court is using the wrong metric
(originalism) to resolve constitutional questions while at the same time
marshalling the best arguments using the tools the Court prefers. When doing either,
however, it is imperative to also understand who the justices are as people and
appeal to them in any way that is ethical, even if that appeal is not framed in traditional
legal terms.
In the
end, I agree with both Moyn and Bernick, and there may be more common ground
between them than might appear at first blush. Manipulating text, history, and
precedent, combined with an understanding that those factors rarely carry the day
in important constitutional cases, is the landscape legal scholars have to
navigate if they want their arguments to be both taken seriously and have
maximum impact. Balancing which approach should be emphasized will depend on
the particular case and the issues and facts presented.
It is likely that Moyn would respond that the suggested approach will not lead to serious change and serious change in how the Court operates is desperately needed to help return us to a functioning democracy (a lot more would have to happen of course). He may not be wrong. But Bernick and others would likely say that in responding to hopelessly bad legal arguments, scholars should not forget their appropriate role, which is seeking the truth, not bringing the entire system down.
I wrestle with that conflict regularly as someone who thinks the Supreme Court is a terrible institution no matter the politics of the justices who happen to be in power at any given moment. My tentative answer, which Moyn probably won’t like, is to chip away at the artificial structures of constitutional law that hide the true reasons for the Court’s decisions while at the same time doing whatever is possible to minimize the likelihood of bad Court decisions which have terrible consequences. That is often a hard line to discern, but reforming a government institution housing life-tenured officials with almost unreviewable power is no easy task. Maybe those who (like Moyn and me) want to bring it all down, and those who want to stave off or at least minimize bad decisions, should work together instead of against each other and continue this difficult and important debate. That would be at least a good place to start.