Thursday, June 16, 2016
There's nothing like a hand-down day at the end of June to amplify a particular kind of anxiety in those who worry, with Justice Alito, about "the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."
One way of getting at the problem is to think of decision-day "analysis" as constitutional law in the cave. Are we not like the prisoners who "assign prestige and credit to one another, in the sense, that they rewarded speed at recognizing the shadows as they passed, and the ability to remember which ones normally come earlier and later and at the same time as which other ones, and expertise at using this as basis for guessing which ones would arrive next"? (The Republic, 516c-d.)
For those interested in more developed thoughts along these lines, check out Steven Smith's trenchant assessment of our constitutional law, The Constitution in the Cave (available in both a McGeorge Law Review version and a First Things version).
Okay, it's 9:59, so off to SCOTUSBlog I go.
Wednesday, June 15, 2016
In updating some slides for a Rotary Club presentation, I didn't see any 5-4 opinions for the Court this entire Term. For obvious reasons, the Term will end that way as well.
(Note: My source is the Supreme Court's "slip opinions" page. I just went through and scanned quickly for the vote spread in the slip opinions released before Justice Scalia's death on February 13. If I missed anything that should count as a 5-4 opinion for the Court, please let me know. The closest I saw was Campbell-Ewald v. Gomez, which was 6-3 on the judgment, but Justice Thomas concurred only in the judgment. Also, is anyone aware what 5-4 action there has been this term on the "shadow docket"?)
The 4-4 and 5-3 cases are the most obvious candidates for cases that took shape originally as 5-4 cases. But you can't estimate just from the resulting vote split, as it is most likely that the 8-0 decision in Zubik v. Burwell took shape before oral argument as a 5-4 case. We may see other examples of this going forward, as well.
Monday, June 13, 2016
The June issue of the Harvard Law Review carries a book review by Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit. The book reviewed is by Judge Robert Katzmann of the United States Court of Appeals for the Second Circuit. The Harvard Law Review Forum runs a response by J. Katzmann to J. Kavanaugh. The interchange is stimulating. I particularly appreciate the insights each brings to bear from their appellate adjudication experience. These pieces are the sort of "extrajudicial writings ... in which judges engage in self-reflection and situate their own thought in relation to their peers, past and present" that Marc DeGirolami and I tried to call attention to in our article on Judge Posner & Judge Wilkinson.
Friday, June 10, 2016
Anyone seeking an education in ways of understanding politics should take some time to listen to, watch, or read transcripts of Conversations with Bill Kristol. Earlier today I happened to be listening to the podcast of Kristol's first conversation with James Ceaser, which took place last March, and I thought there was much wisdom to be found in it. Much of the conversation is about constitutionalism in the United States. But near the end the conversation turned to President Obama.
Consider how Professor Ceaser's observations about President Obama might help us to understand the Trump phenomenon. An excerpt:
KRISTOL: You’ve written a fair amount about our current president, President Obama, and I’m just curious from the point of view of a student of American history and of the American constitutionalism broadly, anything striking about him. I mean, what will historians note about the Obama presidency?
CEASER: Well, I think they’ll begin by noting the extraordinary election of 2008, which is partly about Obama but partly about Obama-ism, which was much more than a political phenomenon. It was a cultural phenomena and in way a worldwide phenomenon, something like almost a religious devotion to an individual who was seen as being able to deliver not only to the United States but the whole world from the morass in which it found itself.
And it’s more telling, I think, about the masses, even than Obama, because, after all, he was just the vehicle for this mass movement that emerged. The yearning for someone who could transform the world. That doesn’t speak well for the modern state of the world or democracy. It’s in a way a terrifying – a terrifying event to see so much hope put into one person with the obvious understanding that no person, even if Obama were more than he is, could ever have achieved that. So I think that 2008 is a quasi-religious phenomenon portending something about the character of our world. Maybe it’s just a one-off. Maybe the experience of disappointment will sober people up and make them feel a little embarrassed at how they acted in 2008. But that’s the event that stands out.
Even in the 2012 election, you look at that the campaign in 2012 was so radically different from 2008. It was effectively run in 2012 but there was no high inspiration, no hope and change, it was tough politics. So we’d already passed this curious stage. And I wonder in some ways, not to try and make excuses for Obama, whether he wasn’t the victim of this movement, which probably must have affected his soul in some ways.
When you move from venue to venue and you’re treated with such a degree of adulation, maybe if you’re not a strong personality, you begin to believe it yourself. And I think there are personal reasons, deficiencies in his own character, which I think helped that process along. But I think he was affected by this, began to think that these speeches that he gave, which had these responses could actually change reality. In particular in international affairs, his first speech in Cairo, maybe it was a prudential move, but he seemed to think that he could run foreign policy by his own voice. And that the same thing which brought him success in the election could bring him success in the running of the country and the world. We’ve seen, I think, that that’s not the case. A good solid and simple education, but an education nonetheless.
Since the rise of Trump, others have observed that the Trump movement of 2016 is a kind of funhouse-distorted-mirror version of the Obama movement of 2008. But keep in mind that Ceaser was making these observations about Obama a few months before Trump announced his candidacy and even longer before people began to recognize its potency.
Thursday, June 9, 2016
The Marian apparition mentioned in my preceding post links up in an interesting way with this passage from God and the World:
Q (Seewald): Basically, the message of Fatima is not very complicated at all. It was expressed in this way by the three children who saw the visions: "I am the beloved Lady of the Rosary! ... I have come so that men may become better. They must stop giving such pain to God."
A (Pope Benedict XVI): Indeed, the message itself is quite simple. And Lucia, the only surviving one of the children, has placed more and more emphasis on this simplicity and has said, Don't take notice of all the other things you are told about; it's all just a matter of faith, hope, and love. I too have been able to have a brief conversation with her. She said it then with great emphasis: Tell people that!
What she meant was: the angels we saw at first helped us to learn to practice faith, hope, and love, and the content of the whole message is that we should learn this. That is what the Mother of God wants to make us aware of and, by doing this, to purify us and convert us. Penitence is in fact this inward conversion of our existential attitude, stepping outside of the current trend, which leads away from God and leads us only to ourselves. Penitence is conversion, coming out of oneself, self-giving, which becomes love and which in turn presupposes faith and creates hope.
I believe that all these appearances of Mary, so far as they are authentic, do not bring us something to set beside the gospel. They offer no satisfaction to people's curiosity, no sensations or anything like that, but bring us back to the simple and essential things, which we are so easily inclined to overlook. Nowadays especially, with the complexity of all our problems, Christianity often becomes so complicated for us that we can no longer see the forest for the trees. It is a matter of being led back to the simple heart of it, not to anything else, but to the essentials, to conversion, to faith, hope, and love.
These words were reportedly spoken by Mary when she appeared in Argentina to Gladys Quiroga de Motta on October 13, 1983.
Friday, May 13, 2016
If conditions attached to Spending Clause legislation must be unambiguous, how can an agency's new interpretation of a concededly ambiguous regulation ground threatened loss of funds?
Surely someone out there knows the answer to this question that's been bugging me since the Fourth Circuit's decision in its Title IX transgender access to sex-segregated bathroom case, G.G. v. Gloucester County School Board.
Here's a Twitter version of my bleg from April 20: "Q for admin-law mavens: How square Auer deference re: Title IX bathrooms w/ Spending Cl requirement that conditions on funds be unambiguous?"
In something closer to plain English:
Congress does not have the power to tell local school districts how to provide access to their boys' and girls' bathrooms and locker rooms. But Congress can get this power by imposing conditions on the use of federal funds provided under the Spending Clause. Congress used its Spending Clause authority to pass Title IX, which prohibits sex discrimination by entities that receive Title IX federal funds. As part of the Title IX program, the federal government promulgated a regulation that explicitly allows Title IX fund recipients to have separate bathrooms for boys and girls as long as the facilities provided one sex are comparable to those provided by the other. This regulation does not speak to the question of how to provide access to sex-segregated bathrooms for schoolchildren whose gender identity does not correspond to their biological sex. But in a new guidance document, the Department of Education and the Department of Justice have said that Title IX fund recipients must provide access to sex-segregated bathrooms consistent with each student's gender identity, regardless of whether that gender identity is consistent with a student's biological sex.
Suppose a school that receives Title IX funds does not follow this guidance document. Can the federal government withdraw the school's Title IX funding?
One possible answer is "yes." The federal government can impose conditions on funds, and if fund recipients don't want to comply with those conditions, they lose the funds.
But another possible answer is "no." The federal government can't impose whatever conditions it wants on fund recipients. To be valid, a condition must be unambiguous. And the requirement to allow every student access to sex-segregated bathrooms based on the student's gender identity, regardless of what that gender identity is consistent with the student's biological sex, is not unambiguous. Violating that condition therefore cannot be the basis for withdrawing federal funds.
What does the law say about these two answers? Any pointers are welcome.
Tuesday, May 3, 2016
Two passages from Edmund Burke, A Letter to William Smith, Esq., on the Subject of Catholic Emancipation
I recently had occasion to come across this letter by Edmund Burke: A Letter to William Smith, Esq., on the Subject of Catholic Emancipation.
One portion of it reminded me of a homily by Fr. Walter Burghardt, S.J., that I was privileged to hear as a graduate student. Its theme was the danger of religious indifferentism. On that topic, here's Burke to Smith:
You need make no apology for your attachment to the religious description you belong to. It proves (as in you it is sincere) your attachment to the great points in which the leading divisions are agreed, when the lesser, in which they differ, are so dear to you. I shall never call any religious opinions, which appear important to serious and pious minds, things of no consideration. Nothing is so fatal to religion as indifference, which is, at least, half infidelity. As long as men hold charity and justice to be essential integral parts of religion, there can be little danger from a strong attachment to particular tenets in faith." (emphasis added)
Another portion of it reminded me of various currents in American public life today, including in our public law:
My whole politics, at present, centre in one point, and to this the merit or demerit of every measure (with me) is referable, -- that is, what will most promote or depress the cause of Jacobinism. What is Jacobinism? It is an attempt (hitherto but too successful) to eradicate prejudice out of the minds of men, for the purpose of putting all power and authority into the hands of the persons capable of occasionally enlightening the minds of the people. * * *
* * *
As the grand prejudice, and that which holds all the other prejudices together, the first, last, and middle object of their hostility is religion. With that they are at inexpiable war. They make no distinction of sects. A Christian, as such, is to them an enemy. What, then, is left to a real Christian, (Christian as a believer and as a statesman,) but to make a league between all the grand divisions of that name, to protect and to cherish them all, and by no means to proscribe in any manner, more or less, any member of our common party? The divisions which formerly prevailed in the Church, with all their overdone zeal, only purified and ventilated our common faith, because there was no common enemy arrayed and embattled to take advantage of their dissensions; but now nothing but inevitable ruin will be the consequence of our quarrels. I think we may dispute, rail, persecute, and provoke the Catholics out of their prejudices; but it is not in ours they will take refuge. * * *
* * *
It is a great truth, and which in one of the debates I stated as strongly as I could to the House of Commons in the last session, that, if the Catholic religion is destroyed by the infidels, it is a most contemptible and absurd idea, that this, or any Protestant Church, can survive that event. Therefore my humble and decided opinion is, that all the three religions prevalent more or less in various parts of these islands ought all, in subordination to the legal establishment as they stand in the several countries, to be all countenanced, protected, and cherished, and that in Ireland particularly the Roman Catholic religion should be upheld in high respect and veneration, and should be, in its place, provided with all the means of making it a blessing to the people who profess it, -- that it ought to be cherished as a good, (though not as the most preferable good, if a choice was now to be made,) and not tolerated as an inevitable evil. If this be my opinion as to the Catholic religion as a sect, you must see that I must be to the last degree averse to put a man, upon that account, upon a bad footing with relation to the privileges which the fundamental laws of this country give him as a subject. I am the more serious on the positive encouragement to be given to this religion, (always, however, as secondary,) because the serious and earnest belief and practice of it by its professors forms, as things stand, the most effectual barrier, if not the sole barrier, against Jacobinism. The Catholics form the great body of the lower ranks of your community, and no small part of those classes of the middling that come nearest to them. You know that the seduction of that part of mankind from the principles of religion, morality, subordination, and social order is the great object of the Jacobins. Let them grow lax, skeptical, careless, and indifferent with regard to religion, and, so sure as we have an existence, it is not a zealous Anglican or Scottish Church principle, but direct Jacobinism which will enter into that breach. Two hundred years dreadfully spent in experiments to force that people to change the form of their religion have proved fruitless. You have now your choice, for full four fifths of your people, of the Catholic religion or Jacobinism. If things appear to you to stand on this alternative, I think you will not be long in making your option. * * *
* * *
January 29, 1795. Twelve at night.
Sunday, April 3, 2016
Thank you to Michael Perry for directing us to the recently posted paper by Professor Kaveny on "The Case of the Little Sisters of the Poor." I haven't carefully considered the precise claims in Profeesor Kaveny's paper yet, but I've seen enough to post with questions now.
The abstract alone puts me on the defensive. In it, Professor Kaveny charges that "the exigencies of litigation have required the plaintiffs to distort Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others." Further, "[t]his distortion has prevented them from helping to discern what sorts of conscience protection are appropriate for all of us in an interdependent and pluralistic constitutional democracy."
These claims hit home because I represent the Little Sisters of the Poor, and have since the beginning of this saga. In so doing, I have tried my best to draw on an accurate understanding of Catholic moral theology and federal law.
I initially tried to help the Little Sisters avoid going to court. After President Obama expressed openness to an expanded exemption, we filed comments explaining why the Administration's initial offerring was unacceptable. Those comments drew directly from the Little Sisters' public statements -- statements that were written, I unfortunately need to add, without the input of any lawyers or PR types.
I failed ... and the government failed us, by promulgating revised regulations that remained problematic.
The Little Sisters wanted to stay faithful both to their religious mission and to federal law. RFRA, among other provisions of federal law, was on their side. And so the case came.
We ended up in court--with more, and more suitable, lawyers--because the regulations required the Little Sisters to arrange their health benefit plans contrary to how they had arranged them for years in compliance Catholic social teaching. The contraceptive mandate threatened to alter the status quo the Little Sisters had maintained for many years successfully, for many years without controversy, and until then without breaking federal law.
The Little Sisters' alleged misunderstanding of "Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others" (in Professor Kaveny's words) predates by decades the Obama Administration's controversial implementation of the women's preventive health services provision. As I read Professor Kaveny's paper, then, here are some of the questions that will be on my mind:
(1) Have the Little Sisters of the Poor always misunderstood "Roman Catholic moral teaching" in arranging their health benefits to exclude contraceptive and abortifacient coverage?
(2) If the Little Sisters' pre-existing health benefits arrangements rested, instead, on a proper understanding of "Roman Catholic moral teaching," what was it about the Obama Administration's regulation that altered the analysis under Catholic moral theology?
(3) Does it matter to theological analysis of compliance with this regulation whether it was promulgated in violation of a federal statute, namely the RFRA?
(4) If Professor Kaveny had been a lawyer advising the Little Sisters of the Poor when the initial regulation had been promulgated, would she have advised them to roll over and abandon their longstanding arrangements? What, concretely, would she have advised?
(5) If it is to be regretted that "the adversarial nature of the legal process has pressed [the Little Sisters of the Poor] to understand both their own obligations and those of the government in a binary manner," who is more responsible for this state of affairs: (a) the Little Sisters and their lawyers, or (b) the Administration and its enablers?
Friday, March 25, 2016
I've received some skeptical reactions to the concluding assertion in my prior post on the Little Sisters of the Poor case that "it's difficult to see how the government wins." The question on people's minds is how the Little Sisters and their fellow petitioners pick up a fifth vote after Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Alito.
This is a fair question. And the fair answer is that I can't say with certainty (nobody outside the Court can!), but the probabilities look good given the various arguments aired and at work in the case.
I start with the assumption that the Justices would like to avoid a 4-4 split on these cases. They've been dealing with some of these cases on their shadow docket for a while now, and they do not want to prolong uncertainty or perpetuate disuniformity. So they want to find a way to avoid an even split if they can.
Next, any break from 4-4 is most likely to be in petitioners' favor. It's possible that the government loses on substantial burden yet somehow wins on strict scrutiny. But I don't think that's in the cards after considering the briefs and observing arguments.
The government seemingly came in from the lower courts riding high on "no substantial burden," but that position did not fare well in questioning at the Court. Most of the government's arguments accordingly focused on the elements of strict scrutiny: compelling interest and least restrictive means. On these elements, though, the government's arguments and evidence are underdeveloped.
One of the more interesting developments at oral argument was the government's attempt to avoid several less restrictive means by gerrymandering its claimed compelling interest to exclude them. Chief Justice Roberts picked up on this near the beginning of Solicitor General Verrilli's argument. "Your compelling interest," observed Chief Justice Roberts "is not that women obtain contraceptive services. Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by the Petitioners, hired by the Little Sisters. In other words, it seems to me you can't say that what you're trying to do is make sure everybody has this coverage. You want to make sure they have it through the program set up by the Little Sisters, and that's what they object to."
Justice Kagan picked up on the government's contraction of its compelling interest as well. One of her questions for petitioners' counsel limited the universe of accommodations available to those that ran through petitioners' plans: "Is there any accommodation that the government would offer that would in fact result in women employees of your clients, or students of your clients, getting health care as part of an employer-based plan or a student-based plan, getting contraceptive coverage? Is there any accommodation that would be acceptable?"
One problem with the government's approach, as Michael McConnell has noted, is that it is "entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest." And another problem, he further notes, is that the government already expects to serve its interests in contraceptive coverage and other preventive services for many other employees outside of the employer-based health system by using the exchanges.
Which brings us to the brief by Douglas Laycock that was mentioned by both Justice Kagan and Justice Ginsburg at oral argument. These Justices invoked this brief's arguments when petitioners' counsel pointed to the government's failure to justify the line that the agencies drew between exempt and nonexempt religious organizations.
At least as of the time of their questions, these Justices appeared to have accepted Professor Laycock's argument that scrutinizing this line to see if the government drew its exemption too narrowly would threaten specific religious exemptions. The gist of the argument is that the government won't provide specific religious exemptions at all if judicial scrutiny of their boundaries would result in willy-nilly judicial expansion.
The argument fails, however, if there is a guiding principle for judges to use in assessing the government's decision on the shape of its exemption. And here there are two.
The first is RFRA itself. When the agencies decided on regulations to implement the women's preventive services provision, they were obligated to follow both the ACA and RFRA. The government obscures this by treating its exemption for churches and integrated auxiliaries as a matter of administrative grace. As Professor Laycock himself recognizes, though, and as Hobby Lobby holds, imposing the contraceptives mandate directly on religious objectors would violate the RFRA.
Even if someone rejects the idea that the exemption for churches and integrated auxiliaries was required by RFRA, nobody can deny that the implementing agencies were at least required to follow RFRA's commands in formulating their regulatory regime. And it is this requirement for RFRA compliance in the regulatory process that provides a second principle for assessing the shape of any resulting exemption. When the government grants a specific religious exemption in its RFRA-governed rulemaking, it has to give a reason for the exemption that it provided. And this is crucial because, at the very least, the government's own reason for giving an exemption can provide courts a principle for assessing the line that the government has drawn between exempt and nonexempt entities.
The truth is that interest-group politics best explains the line drawn by the government. But interest-group appeasement is not an adequate rationale for the agencies to explain their action. So they said something else in the Federal Register, namely that exempt entities were more likely to employ co-religionists. That rationale, however, applies equally to petitioners, who enjoy the Title VII exemption to hire co-religionists, as Paul Clement argued in his rebuttal: "Their original justification for the line they drew, Justice Kennedy, was that the exempted organizations would be more likely to hire co-religionists and, therefore, less likely to have employees who would use the products. My clients equally enjoy the Title VII exemption which gives them the right to hire co-religionists so their original rationale applies equally to my clients. You have to draw a sensible line."
Contrary to Professor Laycock, holding the government to its own rationale when it implements rules in accordance with RFRA by providing exemptions does not pose a mortal threat to specific religious exemptions. It protects against circumvention of RFRA itself.
Which brings me back to the opening question for this post: How avoid a 4-4 split?
To state the obvious, a resolution in petitioners' favor would require at least one of the Hobby Lobby dissenters to join (at least as the outcome) with the four Justices that remain from the Hobby Lobby majority. Given how the government's case collapses once one recognizes the obvious mismatch between the scope of the regulatory exemption and the rationale given for it, the most likely candidates for voting in some way for petitioners are Justice Kagan and Justice Breyer. Their pre-judicial experience with legislation and rulemaking positions them to best appreciate how it has resulted that government lawyers have found themselves stuck defending as legally justified line-drawing that was politically motivated. And as judges, both Breyer and Kagan appreciate how judicial oversight of the administrative process can sniff out the effects of political influence that is insufficiently tethered to the even-handed advancement of actual government interests.
Neither Justice Breyer nor Justice Kagan nor any of the other Justices needs to draw up once-and-for-all criteria for identifying inappropriately gerrymandered religious exemptions. The Justices need only hold the government to its expressed rationale in the administrative record for why it drew the lines that it did.
When RFRA intersects with rulemaking, judges are not RFRA's front-line enforcers. They are, instead, a refuge for religious exercise that is protected by RFRA but that is subordinated to interest-group politics in the administrative process. One workable way to make RFRA operate as intended is for the judiciary to hold the government to its own rationale for the regulatory lines it has drawn.