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Richard Esenberg Archives

In the most recent issue of the Manhattan Institute's City Journal, Jim Manzi has a fascinating piece on the limits of social science. I posted my initial reaction to the piece on Marquette University Law School's faculty blog. His observation are particularly timely in light of the recent decision of a district court judge in Perry v. Schwarzenegger striking down California's constitutional amendment limiting marriage to one man and one woman.

My point relates not to same sex marriage itself, but Judge Walker's use of social science evidence and how that might relate to constitutional litigation generally. The key question is the extent to which courts ought to rely on social science evidence to overturn the laws enacted by voters and their elected representatives. This question extends well beyond the matter of same sex marriage.

According to Judge Walker, social science evidence has proven that same sex marriage will have no impact on the mores and vitality of marriage between heterosexuals and that it has proven "beyond any doubt that parents' genders are irrelevant to children's developmental outcomes."

It is certainly true that most academics who have devoted themselves to the study of gay and lesbian isses believe these assertions. But it is quite another matter to say that they have proven them. Our experience with same sex marriage is quite recent and limited. It is not clear that there is enough data to draw any conclusions about its long term impact.

As for the "genderless" nature of parenting, there are severe methodological difficulties in obtaining randomly selected comparable samples of gay and lesbian couples raising children. Comparision groups of heterosexual parents are often not limited to intact married couples raising their biological tradition and there are very few, if any, adequate longitundinal studies.

But beyond this, Manzi's article suggests that it may be difficult to ever say - at least by the standards of the physical science - what the impacts of same sex marriage are or will be. While his article focused on implications for policy making, there are lessons for judicial decisionmaking as well. A large part of Judge Walker's decision is given over to declaring the judgment of a majority of California's voters as irrational because social science purports to establish that what they believe to be true is not.

The question is not an easy one. Traditional equal protection analysis requires some scrutiny of the justificaton for legal distinctions. But it may well be that social science evidence needs to be viewed with greater skepticism than shown by Judge Walker in Perry. Constitutional litigation ought not to be seen as a battle of experts who attempt to claim the dispassion and robustness of the physical sciences to resolve contested issues of social policy.

In a recent piece in the Harvard Journal of Law & Public Policy, I predicted the "lonely death" of public campaign financing. The point was that public financing schemes that provided what are often called "rescue funds," i.e., additional public money for candidates who face an opponent (or independent opposition) that has spent more than some triggering amount. So, for example, if I am a publicly financed candidate who is running against an internet billionaire or a well financed independent campaign against me (undoubtedly by some group that is for "the children"), I can get additional public money to match the expenditures against me.

My argument was that these asymetrical financing systems are probably uconstitutional and that, as a result, any public financing system will be dwarfed by self financed candidates, independent expenditures or, increasingly, opposition campaigns whose use of the internet and bundling is likely to dwarf any politically feasible amount of public financing.

The argument was based, in significant part, on the Supreme Court's decision in Davis v. FECin which the Court struck down the McCain-Feingold's Millionaire Amendment - a provision that, among other things, raised the campaign contribution limits for those facing self-financed candidates who exceed a certain expenditure amount. The majority saw this as an impermissable burden on the speech rights of the self financing candidate.

Some argue that providing additional funding is different than raising contribution limits. I don't think so and explain why in the Harvard JL & PP piece.

We may soon find out. In McComish v. Bennett, the Ninth Circuit reversed a district court decision invalidating the rescue funds provisions (referred to as trigger funds) of Arizona's Clean Elections Act.

But the Supreme Court has stayedthe mandate of the Ninth Circuit (leaving the district court's injunction against the disbursement of the trigger funds in place) pending resolution of any petition for certiorari.

I see a reversal of the Ninth Circuit. Given the Court's willingness, in the zero sum game of an election, to see a benefit to one's opponent that is triggered by constitutionally protected speech as a burden on that speech and its rejection (in both Davis and Citizens United) of the idea that burdens on speech can be justified by a desire to level the playing field, I continue to believe that rescue fund schemes are extremely vulnerable to constitutional challenge.

Cross Posted at Marquette University Law School Faculty Blog.

My Marquette University Law School colleague Peter Rofes has suggested, with tongue purposively placed in tongue, four questions for Supreme Court nominee Elena Kagan. While I enjoyed Peter's contribution, I have a few of my own. Any Republican Senator or his or her staff may borrow all or any of this.

"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of such views, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification. You have yourself have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy" and "her views on particular constitutional issues" including those "the Court regularly faces." In light of your own absence of a judicial track record and rather sparse scholarly production, we on the Republican side of the aisle agree. We, therefore anticipate and look forward to your response to the following questions.

First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.

Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? What are they and, broadly speaking, how are these limitations to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation?

Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?

In short, General Kagan, are there any justiciable structural limits on the authority of Congress? What are they?

Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?

Third, you have written that Justice Marshall's view that it is the primary mission of the judiciary to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."

Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?

Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an 'overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might 'un-skew,' rather than skew, public discourse."

While we appreciate that you may not have been endorsing that view in your article, do you believe that it is ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets? May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?

We look forward to your responses. There may be follow-ups."

Now that the President has nominated to the United States Supreme Court a woman whose signature (and not inconsiderable) accomplishment in life was to serve as Dean of the Harvard Law School, I expect (with apologies to Bob Dylan) that the name of my alma mater will be invoked reverently and frequently over the next month or so.

If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.

No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.

Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.

According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")

Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."

Dude, please.

Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.

Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)

Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.

As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**

Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.

Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.

And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.

Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.

And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.

In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.

But, dude, think!

Cross posted at Point of Law and Shark and Shepherd

* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.

**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.

I am a bit late in commenting on the en banc 9th Circuit's class certification in Dukes v. Wal Mart, but it is, after all, 137 pages.

The decison is problematic on at least four levels. First, as others have noted, it masks a rather unorthodox view of Title VII. It was necessary, on class certification, to identify common question of law shared by the approximately 1.5 million class members who work or who have worked in 3400 stores located in 43 regions on which the cases of the six named class members are typical. Tall order and, having read all 137 pages, I am still not sure just what the majority thinks that common claim is other than a generalized allegation of gender discrimination that happened in some unspecified way because Wal Mart gives managers too much discretion and yet controls them in a way that warrants trying the claims of 1.5 million women as one. You might imagine that this required substantial dexterity and so it did.

The first problem is the elision of a substantial dispute about what Title VII requires. While courts have recognized that subjective evaluation procedures may enable discriminatory practices, they have made clear that a policy of subjective evaluation is not itself discriminatory. The panel majority recognizes this but, as the dissent points out, it never adequately identifies what additional issue, common to all class members, would make Wal Mart's subjective evaluation procedures unlawful. What it attempted to do was marry the ways in which certain policies might facilitate discrimination with the conclusion of an expert that it did. But that creates further problems.

One of the ways in which the panel majority tried to close this loop is through the use of something called "social framework" testimony. My colleague Paul Secunda and Melissa Hart of Colorado have written a good discussion of such testimony from the perspective of those who favor such testimony. The term refers to social science testimony that attempts to identify "structural" and "hidden" forms of discrimination. "Social framework" testimony is not any one thing and I actually agree with Paul that there may be times when it is admissable.

But that doesn't mean that it is not extremely problematic. I had extensive experience responding to such evidence in systemic racial discrimination cases in an earlier life. The unvarnished truth is that there is often nothing "scientific" about it at all. It sometimes does involves application of some particularized research(that may or may not be specfically related to the case at hand) which, taken alone, may be probative and admissable.

But often the helpful is combined with the obfuscatory. The proferred testimony may contain useful observations about what the ways in which the world might work. It may be that subjectivity may enable discrimination. There might be empirical support for the notion that filling positions through "word of mouth" may tend to result in hiring people of the same ethnic or racial background of existing employees. Under the right circumstances, a trier of fact may benefit from hearing these things.

But information such as this is often combined with other assertions that, while claimed to be "scientific" because they have been "peer reviewed, are, in fact, ideological presuppositions that won't survive fifteen minutes of well planned cross examination. While one might suggest that the latter problem goes to the weight and not the admissability of the opinion, the problem is often confounded by the way in which the testimony is presented. Methodology is often hidden behind an impenetrable mask of supposedly objective "content analysis" - you and I might say that the expert "read" a bunch of things that the lawyer gave her - to reach an ultmate conclusion. While expert testimony is not objectionable for the latter, it is unclear why an expert is in a better position than the trier of fact (perhaps aided by whatever insights might be offered by social science research) to reach that conclusion.

The point is often to avoid having to try the many "facts" that the expert claims to have relied on. It is an obvious - but often obscured - fact that the notion that social scientists have "found" that subjective procedures might facilitate discrimination tells us nothing about whether that has happened in the case at hand. This might be shown through the introduction of admissable evidence about the matter in suit that demonstrates discriminatory treatment. It could be done by proof that these subjective policies were adopted to further, or have been influenced by, policies that run afoul of Title VII's prohibition of disparate treatment or impact,

But, at least in my experience and by description of the testimony proffered in Dukes, an expert narrator tells the trier of fact that he or she has reviewed the evidence and has concluded (trust me) that such discrimination has occurred, offering enough "examples" to make the testimony believable.

The problem with the scheme is that it is unclear that this second step is an application of expertise. To be sure, some of my finest moments as a trial lawyer came in skewering this sort of thing. But, unless it is carefully controlled, it is a bit like peeling back an onion. How many instances of bad analysis are enough to undermine the opinion?

I have not read the testimony of the plaintiffs' expert in Dukes, but it's description - in both the decision and the piece by Secunda and Hart - sounds distressingly familiar. Perhaps it ought to be admitted, yet neither the panel nor the district judge subjected the proferred social framework testimony to a rigorous Daubert analysis The panel majority, ignoring the Daubert challenge that Wal Mart actually made, seemed to think that to do so would be to address the merits at the class certification stage. But. as Professors Secunda and Hart Hart point out, class certification in elephantine employment discrimination is often tantamount to a decision on the merits. Failure to assess whether this evidence really meets the requirements of Daubert would seem to be a prerequsuite to finding that it identifies a common question of which the named plaintiffs' claims are typical.

Nor did the district court or panel majority carefully consider what this social framework testimony, even if credited, could establish. That certain management practices could enable (or even that they have often enabled) discriminatory practices might be useful to the trier of fact (although the latter formulation might be overly prejudicial), but that evidence doesn't tell us that it happened in this case or that it happened in a way that is common to all of 1.5 million plaintiffs. Even allowing an expert to pick out some examples of where it might have occurred doesn't accomplish that .To make that claim, as the defense points out, it is necessary to identify some other common policy or practice (such as an affirmative policy of discrimination or some other policy that might be seen as compelling or encouraging managers to exercise their discretion in discriminatory ways) and, after 137 pages, it is not clear what that might be.

The majority opinion makes vague references to "corporate culture" and "centralization" that somehow left subordinates with too much discretion but yet directed its exercise in some way that was common across 3400 stores and 43 regions. At some point, this becomes hard to distinguish from an assertion that sexual disparity must be the result of discrimination because discrimination is pervasive. But that assumes the matter to be tried.

It is really hard to see what is there other than subjective policies and what the district court and panel decision saw as strong statistical evidence of discrimination.

While the panel seems to have thought the latter resolves the difficulty, it does not. More tomorrow.

Look, we sued the Pope !

Lawyers for the Vatican have called the lawsuit against Pope Benedict and the Holy See a "publicity stunt." I wouldn't go so far as to say that - it has a chance of surviving a motion to dismiss and there may be, embedded in its fifty four pages, a theory that might get to the jury. But there is a sense in which that a publicity stunt is precisely what it is and there may be some larger lessons here about the American liability system.

The lawsuit arises from the predations of a pedophile priest in Milwaukee named Father Murphy. It's a nasty case. Murphy abused numerous young boys at a school for the deaf, largely in the fifties and sixties, but perhaps extending to the early seventies when he was (quite improperly) quietly shuffled away to an early retirement. It is clear that the Milwaukee Archdiocese - in particular Archbishop Meier - failed to act in ways - during the 1960s - that would have halted the abuse. There is no evidence that the Vatican, much less the Pope, had any knowledge of or involvement with Father Murphy during this period. By the time the Vatican (and then Cardinal Ratzinger as head of the Office for the Propagation of the Faith) became aware of Murphy's offenses, it was the late 90s. The Milwaukee Archdiocese had brought a belated action to defrock him.

There is a controversy over how that proceeding was conducted and whether it ended prematurely. But it could not have prevented any further abuse and it is almost certain that, however it was handled, Father Murphy would have (as he did) die before it could be completed.

Here is where the publicity stunt begins. What makes this case newsworthy - what puts you in the New York Times and on the networks news - is the defendant in the Apostolic Palace.

There are multiple legal problems with bringing an action against the Pope and Holy See under the Foreign Sovereign Immunities Act. Two circuit courts of appeals have allowed part, but not all, of such cases to go forward. The outcomes are not consistent with each other and, in one, a cert petition is pending before the Supreme Court. Without getting into the details, the reasoning in these cases is far from unassailable.

But the theories that have been permitted - largely negligent supervision and a rather curious notion of respondeat superior - have either been rejected or are unlikely to be recognized by Wisconsin law. The Wisconsin Constitution has been interpreted to confer rather broad protection for church autonomy. Even if these problems are not fatal, the actions complained seem to be almost certainly barred by the statute of limitations.

And, as this is important, the wrongs alleged to have been committed by Pope Benedict himself could not have averted any of the very real harms suffered by the plaintiffs. Father Murphy's predations had ended long ago. They - and the feckless response of the Milwaukee Archdiocese - were well known within the deaf community. (It was pressure from that community that lead to the charges against Murphy.) The Milwaukee District Attorney had, rightly or wrongly, already declined to prosecute him. Unless one buys into the dubious notion that the failure to a religious institution to impose discipline long after the fact is a legally cognizable injury, the naming of Pope Benedict XVI is, notwithstanding the sympathetic nature of the plaintiff and the very real horror to which he was subjected - a publicity stunt.

There are a few larger implications. Litigation, in this instance, is being used as a front in a larger war to affect Vatican policy in the future. Although advocates say that something "must change," the fact is that almost everything about the Church's response to clergy abuse has changed. The gravamen of the complaint is to have outsiders manage that change. Once again, we see an attempt to take traditional common law notions of duty and liability and extend them to form the basis for prospective regulation - something which, I would argue, strains judicial competence and usurps prerogatives of civil society - particularly where the institution to be regulated is a religious institution.

Second, a theme in the complaint is that the Vatican should have acted in a way that would have publicized what it calls, at a least one point, "the practice" of child sex abuse. The harm in its failure to do so, it seems, was not limited to the predations committed by known abusers who were placed in a position to abuse again, but in the failure (or so it seems) to let people know that, in general, "priests abuse kids."

This reminds me of other cases in which the theory of liability has been that the defendant (I think of the lead paint and tobacco cases, although those were stronger examples of the approach than this is) should have fallen on its sword. There are numerous difficulties with this theory in this context, but, once again, it strikes me as a questionable spin on traditional notions of common law duty.

Finally, we have the problem of our repeated inability to discuss these matters rationally. When I wrote an op-ed in the Milwaukee Journal Sentinel a few weeks ago arguing that it might not be a good idea to completely abolish Wisconsin's generous statute of limitations for cases like this, I was accused of siding against "victims" and not appreciating the gravity of Father Murphy's offenses. Neither charge is fair.

Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants, we also know that empathy for those to whom bad things have happened doesn't mean that all limitations on liability - even for those "deep pockets" whose relationship with the wrong is indirect - ought to be swept aside.

I am not such a big fan of Keith Olbermann. He can be hilarious, but only when he is trying to be serious. But I think Henry Waxman may be a candidate for this week's "worst person in the world" this week. Olbermann won't think so, but that only puts him in the running for next week.)

Representative Waxman is upset because a couple - well actually a slew - of large publicly traded companies have looked at ObamaCare and decided that it is going to cost them money - lots money. So much money, in fact, that they have decided that they needed to take a charge to earnings and disclose it to the public - the SEC being rather sensitive about the accuracy of financial information relied upon by the investors.

This has made Waxman and that resolute defender of principle, Bart Stupak, apoplectic. Didn't AT&T and John Deere and Caterpillar and a growing list of others read the memo. Health care reform is going to expand coverage, reduce costs, cut the deficit and causeth the wolf to live with the lamb and the leopard to lie with the kid. Waxman cannot - cannot - understand how these companies could possibly disagree with selected analyses that claim that ObamaCare will cut costs. He wants them to explain.

Except they already have. The new legislation eliminates the deductibility of certain subsidies that these companies receive to provide prescription drug coverage to their retirees. This is a real cost. It will happen. The various "savings" are manna from heaven - something to be hoped (if not prayed) for. Generally accepted accounting principles require the disclosure of the former. They prohibit claiming the latter.

Now it could be that Representatives Waxman doesn't know that. It is, I suppose, possible that the Chairman of the House Energy and Commerce Committee could be that clueless. But I doubt it.

Waxman is, at best, engaged in a publicity stunt and, at worst, sending a message to others. Either way the rule of law is just a tad worse for it. These companies have a right to speak and a duty to disclose their financial condition. In the brave new world in which the government will be making us all better than we are, the company line had better not be resisted. If this means politicizing GAAP and misleading the public as to the financial condition of major publicly traded companies so be it. If it means that speaking out wins you a congressional grilling, no one ever said that revolution would be easy.

Prior to Sunday's vote on health care reform, Nancy Pelosi said that we were "at the door step of history." Mark Steyn counseled caution, reminding us that, on Christmas Eve, we were at the "garden gate of history" but then Scott Brown was elected and "we backed down the front drive of history reversing over the neighbor's dog of history."

I am fairly certain that ObamaCare won't work as advertised, but is it susceptible to constitutional challenge? To continue the Speaker's hackneyed metaphor, are we to have anything other than a quick look around the foyer of history?

In Sunday's Washington Post, Randy Barnett outlined some of the issues surrounding the constitutionality of ObamaCare. I am particularly interested in the status of the individual mandate. It is a standard bit of high school civics that Congress possesses only enumerated powers as opposed to the plenary authority of most state legislatures. The reality is a bit more complicated as courts, over the past seventy-five years have found these enumerated powers to be remarkably protean.

But, as Professor Barnett points out, the individual mandate may test the limits of Congressional power. Take the power to regulate interstate commerce. The commerce power has certainly become capacious. Even lawyers whose last exposure to Constitutional Law was in law school are vaguely familiar with the ways in which the commerce power had been used to reach activity bearing, at best, a weak family resemblance to the transaction of business across state lines. Most recently, in Gonzales v. Raich, the Court held that Congress can prohibit persons from growing and consuming marijuana at home because of its posited impact on interstate traffic in weed.

Still, the individual mandate may be different. Professor Barnett writes that "[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company." It's one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It's quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it.

Some scholars and lawyers prefer to emphasize Congress' authority to tax and spend to promote the general welfare. Jack Balkin, for example, thinks that this makes the case for the constitutionality of the individual mandate "easy." For Professor Balkin, there is no need to construct Rube Goldberg-like scenarios of commercial impact. "The government can make you pay taxes," he says. Because the failure to insure will result in a tax (as opposed, I guess, to a stint in Leavenworth), there is nothing to see here.

Perhaps not. There is certainly case law that, while not mandating that conclusion, provides some substantial support. But it ought not to be that easy. The power to tax is, the power to destroy. While taxes may have a regulatory purpose, there should be some limitation on the ability of Congress to accomplish by taxation is there truly no limitation on Congress' ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person's income because she has failed to do what Congress cannot compel her to do? Does a fine become permissible as long as it is connected through the Internal Revenue Service?

Without getting into the doctrinal ins and outs, this should not - and might not be -as easy as my old law review colleague believes it to be. There may yet be room to argue that Congress' enumerated powers impose some limit on its power to tax, particularly when the tax is imposed in an effort to coerce certain behavior or to penalize a failure to act. Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.

The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.

It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously - and now ironically - thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what - save some other constitutional restriction - it cannot require you to do - or prohibit you from doing.

I appreciate that many people - including most of my colleagues in the legal academy - see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won't.

The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to "get it right."

I am not very comfortable. I am not very confident.

And I don't think I am alone. As the popular response to ObamaCare demonstrates, there is a strong tradition - both in public sentiment and (I think still in constitutional theory)- of structural limitations on federal authority.
Our nation still seems to cling to our longstanding notions regarding the limitation of federal power. Given the Founders rather clear intent on the matter, would it really be surprising to see this theory of the Constitution surface in new ways? Is it is possible that the ongoing transmogrification of Article I may lead to a doctrinal response? If courts can no longer hold Congress to a set of enumerated powers, will they seek to restrain federal authority in other ways? Might we see more rigorous judicial scrutiny of what serves the "general welfare" or what is "necessary and proper."

Sounds like Lochner? There is, after all, nothing new under the sun. It is not what I would want, but could it be what we get?

Cross posted at PrawfsBlawg, Shark and Shephed and the Marquette University Law School Faculty Blog

Last week, I blogged on the flurry of recusal motions directed at a justice on the Wisconsin Supreme Court based upon his "tough on crime" campaign in general and, in particular, one ad that was, even by standards of the genre, over the top. (My contemporaneous criticism of the ad was cited in briefs in support of the recusal motion.)

For some, these motions have been an exercise in judge shopping. The State Public Defenders' office urged the defense bar to file recusal motions against conservative justices, explicitly reasoning that they were unlikely to vote to uphold a defendant's claim anyway. No recusal motions were filed in response to the recent reelection campaign of the Chief Justice in which she ran ads in which a uniformed police officer driving in a squad car pronounced her "law enforcement's ally."

The Court has responded to these motions in two ways. First, by a 4-3 vote, it amended the state's Judicial Code to provide that a lawful campaign contributions or independent expenditures do not, in and of themselves, give rise to a duty of recusal. Of course, we know, from Caperton, that, in rare and unusual circumstances, there can be lawful campaign support that gives rise to a duty of recusal under the Due Process Clause, but, presumably, the justices will not interpret the rule to suggest otherwise.

Second, in a case called State v. Allen, it deadlocked on whether to deny the motion to recuse Justice Gableman that was filed in that case. Three justices would have denied the motion. Three wanted more briefing. As a result, the motion was not granted and Justice Gableman will remain on the case.

The three justices who would have denied the motion held that the Court lacked the power to force a peer justice from a case, although they also said that Allen's motion was facially invalid. In their view, an allegation of generalized bias against a group other than a protected class cannot give rise to a duty of recusal under the Due Process Clause.

The first conclusion may rest uneasily with Caperton in that it implies that the state's Supreme Court cannot provide a remedy to a violation of Due Process. The second conclusion - or something like it - is going to be necessary if Caperton does not become a vehicle for judge shopping. I have an op ed on the matter in today's Milwaukee Journal Sentinel and am completing a scholarly article.

It will be interesting to see how Caperton plays out in other states with an elected high court. These elections almost always involve "tough on crime" campaigns. When more liberal candidates challenge conservative incumbents, they may also involve an "anti-business" populism. An overly generous reading of Caperton will create a target rich environment for lawyers attempting to gaim a more favorable tribunal.

For those pushing aggressive recusal standards, the end game may be a move away from the election of judges or a return to campaigns that are largely concerned with a candidate's resume and endorsements and that are, in the words of one observer, "about as exciting as a game of checkers played by mail." Some commentators have, in fact, expressly pointed to recusal as an antidote to the United State Supreme Court's decision in Republican Party v. White, finding a robust right to free expression in judicial campaigns.

Recusal Wars in Wisconsin, Part 1

Thanks to Walter and the good folks at the Manhattan Institute for the opportunity to blog here. I am a former litigation partner at Foley & Lardner and currently on the faculty at Marquette University Law School. As readers of Point of Law are aware, in last term's Caperton decision, the United States Supreme Court identified a somewhat ill defined duty for a judge to recuse herself whenever "the average judge in [the same] position is "unlikely" to be neutral, or whether there is an unconstitutional "potential for bias." Justice Kennedy, writing for a slim five justice majority, rejected the dissent's suggestion that the newly formulated rule would lead to a blizzard of recusal motions, repeatedly emphasizing that such circumstances would be rare.

Here in Wisconsin, the snow flies. Two years ago, Michael Gableman defeated the incumbent Louis Butler. During the course of the election, Gableman and the independent groups supporting him made much of the fact that Justice Butler had been a public defender widely referred to as "Loophole Louie." One of the ads produced by the Gableman ad was extremely misleading, claiming that Butler had "found" a loophole for a child rapist who had gone on to rape again.

In fact, Butler was the man's lawyer and, although he "found a loophole, the court concluded it was harmless error. Butler's client did go on to offend again but only after serving his sentence for the first offense. The ad was universally condemned - including by Justice Gableman's conservative supporters. It represented extremely poor judgment although it is not, in my view, the measure of the man.

Criminal defense lawyers have now filed motions seeking to recuse Justice Gableman in criminal cases because he is claimed to have demonstrated "bias" against criminal defendants and their lawyers. But the calls for recusal are not limited to criminal cases.

In both the Gableman-Butler race and a race one year earlier in which Justice Annette Ziegler was elected to the Court, independent groups spent heavily - far more than the candidates themselves. One was a business advocacy group known as Wisconsin Manufacturers Commerce. It spent somewhere around two million dollars on the race. There were public calls for Justice Ziegler to recuse herself in a pre-Caperton case in which WMC was not a party, but had a filed an amicus brief.

I am something of an agnostic on judicial elections, but, if we are to have them and they are going to be something other than a clash of meaningless platitudes and endorsements (often fueled by subterranean politics), judicial candidates are going to need room to discuss issues in the (often too simple) way that the public can understand or will attend to. A broad reading of Caperton is in tension with that need and with the Court's recent endorsement of robust free speech rights for judicial candidates in Republican Party v. White.

And there is a back story to this. Aggressive recusal standards are often promoted by individuals and organizations who oppose judicial elections, preferring some type of merit selection system. There is an ideological cast to this because merit selection tends to be dominated by bar associations which themselves tend to be dominated by political liberals.

More to come.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.