Tag: Supreme Court

On the Right to Discriminate

In his post this morning, “Kagan on Military Recruitment,” Cato adjunct scholar Mark Moller touches on Cato’s 2005 amicus brief in Rumsfeld v. FAIR, which he co-authored when he was with us as editor-and-chief of the Cato Supreme Court Review – a duty he performed splendidly before moving off to the legal academy. In mentioning the brief, however, Mark says that he recalls that the position it took was controversial within Cato, that it might still be, and that Cato’s legal shop might take a different view were the case presented today.

I don’t recall that the position we took was controversial within Cato, but then it was five years ago, memories fade, and much has happened in the meantime, including the filing of a brief just three months ago that nicely complements the earlier position we took. In Rumsfeld v. Fair we argued that the government could not condition a private university’s eligibility for federal grants, as the Solomon Amendment did, on the university’s giving up one of its rights, namely, its right to freedom of association. The law school plaintiffs, citing the military’s “Don’t ask, don’t tell” policy, sought to exclude military recruiters from campus. Pursuant to their nondiscrimination policies, that is, the law schools sought to discriminate against those they thought to be wrongly discriminating. In our brief we took no position on the policy Congress had set for the military (that question was not before the Court), nor on the rights of public universities in this matter – nor did we address the question whether Congress, under its raise-and-support-armies power, could directly order schools to admit recruiters, as the Court ultimately held.

Well we now have the public school version of that issue before us, and the Court, in Christian Legal Society v. Martinez. And our brief in this case, written by Cato adjunct scholar Richard Epstein, argues that a public law school – Hastings, in this case – cannot condition the receipt of benefits it extends to all other student groups on CLS’s giving up its right to freedom of association. CLS, a private student group, excludes nonbelievers from its membership, which is its right. As a public institution, we argue, Hastings must treat all equally.

Thus, the principle in the two cases is the same. Private parties, pursuant to their right to freedom of association, may discriminate, whether we agree with their grounds for doing so or not. Public institutions, which belong to all of us, may not discriminate except on grounds narrowly tailored to their functions. Unfortunately, in numerous respects, that’s not our current law. For more, see here.

Estrada and Taylor on Kagan

Kagan gets an endorsement from superstar conservative appellate litigator and Bush II appellate nominee (also my old boss) Miguel Estrada here (see last paragraph).

Plus, Stuart Taylor says Kagan’s nomination could mean a more conservative Court:

Commentators on the left … complain that Kagan never compiled much of a record of aggressively championing liberal causes during her years as a law professor. Some say she was too friendly as dean of Harvard Law School to conservatives and did not recruit as many women and minorities for the faculty as diversitycrats desired.

Speaking as a moderate independent, I like everything about Kagan that the left dislikes. To borrow from my friend Harvey Silverglate, a leading Boston lawyer who champions both civil liberties and an old-fashioned liberal’s brand of political incorrectness, ‘they want people who look different but think alike.’

Kagan seems to be a woman who thinks for herself.

Taylor also highlights what many libertarians will find most troubling about her record (other than strong hints of her lack of sympathy, albeit predictable for a Democratic nominee, with the litigation interests of the business community): her apparent endorsement of the Bush administration’s legal framework for detention of enemy combatants.

NYT: Attorneys General Advance “a Credible Theory for Eviscerating” ObamaCare

The New York Times‘ Kevin Sack reports on the legal challenge to ObamaCare’s individual mandate launched by 20 state attorneys general:

Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it…

Jonathan Turley, who teaches at George Washington University Law School, said that if forced to bet, he would predict that the courts would uphold the health care law. But Mr. Turley said that the federal government’s case was far from open-and-shut, and that he found the arguments against the mandate compelling.

“There are few cases in the history of the court system that have a more significant assertion of authority by the government,” said Mr. Turley, a civil libertarian who acknowledged being strange bedfellows with the conservative theorists behind the lawsuit. “This case, more than any other, may give the court sticker shock in terms of its impact on federalism.”

Supporters claim the individual mandate will pass muster with the Supreme Court because in the past the Court has declared that the U.S. Constitution’s interstate commerce clause authorizes Congress to regulate non-commercial activity that affects interstate commerce. Sack writes:

Lawyers for the government will contend that, because of the cost-shifting nature of health insurance, people who do not obtain coverage inevitably affect the pricing and availability of policies for everyone else. That, they will argue, is enough to satisfy the Supreme Court’s test.

But to [the attorneys’ general outside counsel David] Rivkin, the acceptance of that argument would herald an era without limits.

“Every decision you can make as a human being has an economic footprint — whether to procreate, whether to marry,” he said. “To say that is enough for your behavior to be regulated transforms the Commerce Clause into an infinitely capacious font of power, whose exercise is only restricted by the Bill of Rights.”

Sack’s article contains an inaccuracy.  He writes:

Congressional bill writers took steps to immunize the law against constitutional challenge…They labeled the penalty on those who do not obtain coverage an “excise tax,” because such taxes enjoy substantial constitutional protection.

In fact, the law uses the term “excise tax” several times, but never in reference to the penalty for violating the individual mandate.  It describes that penalty solely as a penalty.  (The law does refer to the penalty for violating the employer mandate as a tax, but not an excise tax.)

As my Cato colleague Randy Barnett explains, that means supporters cannot reasonably claim that the individual mandate’s penalty is a tax, because that’s not what Congress approved.  As Cato chairman Bob Levy explains, even if supporters do claim that penalty is a tax, it would be an unconstitutional tax, because it does not fit into any of the categories of taxes the Constitution authorizes Congress to impose.

The “substantial constitutional protections” afforded to excise taxes do not protect the individual mandate.

Initial Kagan Critiques Miss the (First Amendment) Point

As I’ve been re-reading Supreme Court nominee Elena Kagan’s publications – of which there are surprisingly few for someone of her achievements and reputation – I’ve had half an eye on the TV punditry.  It seems that the leading critique from both the right (e.g., Fox News, Senator Jon Kyl – who’s usually excellent on these things) and extreme left (e.g., Jane Hamsher) is that Kagan doesn’t have judicial experience. 

This just completely misses the point.  As a solicitor general (the “Tenth Justice”) and former dean of Harvard Law – where she did a magnificent job and gained the respect of scholars from across the political spectrum – not to mention senior roles in the Clinton White House, teaching at the University of Chicago and clerking for Justice Thurgood Marshall, Kagan absolutely has the credentials and intellectual chops to be a Supreme Court justice.  Indeed, as I said this morning, her scholarly persona means she’s probably better suited to being a justice than to being solicitor general – especially given that her performance as an oral advocate has left something to be desired.  And we’ve had plenty of non-judges on the Court, people coming from the executive branch (William Rehnquist), academia (Felix Frankfurter), private practice (Lewis F. Powell, Jr.), and politics (Hugo Black).

I actually agree with President Obama that it’s not a bad idea to have somebody with a “different” professional background on the Court – although Kagan’s time in the ivory tower is no more likely to give her a common touch than a nominee coming from the “judicial monastery.”  And, as the president said, Kagan “has won accolades from observers across the ideological spectrum, not just for her intellect and record of achievement, but also for her temperament.”  So the problem really isn’t her supposed lack of relevant experience.

One problem is precisely her very short paper trail – though there are no indications she’s anything but a conventional modern liberal, on which more in future – but something to tease out of that trail, combined with her year as SG, is a certain hostility to the freedom of speech.  For example, in her article “Regulation of Hate Speech and Pornography After R.A.V.,” she attempts to find a constitutional way to restrict the sorts of speech that she personally finds offensive.  And in her defense of the federal “depiction of animal cruelty” statute – which the Supreme Court struck down 8-1 – she argued for a balancing test weighing the value of speech against its social harm.  Not to mention her arguments in Citizens United, the campaign finance statute that, until it was struck down could have banned books, flyers, and movies that contained political speech.  (Interestingly, in Citizens United, she abandoned the very “level political playing field” argument the president invokes to criticize the decision.)

I’m of course not criticizing her appearance as an advocate defending the federal laws at issue in Stevens and Citizens United – that’s her job as solicitor general – but if you read the argument transcripts, you see that she could have done so in ways less sweepingly inimical to free speech. There is other evidence to this effect (see her First Amendment articles here, here, and here, plus others lacking public links), but you get the idea.

Kagan: Revenge of the Grinds

I’ve been saying for a while that to understand the Obama administration specifically and much of today’s liberal Left more broadly, you need to conceive of it as a sort of extension of the intellectual and policy culture of high-end legal academia. The nomination of Elena Kagan, best known as a successful Harvard law dean, extends this familiar pattern. Assuming Kagan coasts to an easy confirmation, she’ll join a liberal caucus on the Court that more than ever resembles a faculty meeting.

To the dismay of some on the left, Kagan, like Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor before her, counts as a “cautious and confirmable” pick – a reliable liberal vote, almost certainly, but not particularly known for disturbingly big ideas or impassioned rhetorical gestures. (The Obama administration does contain plenty of law professors of the latter type – from big thinker Cass Sunstein to liberal firebrand Harold Koh – but has not yet chosen to nominate them to the Court.)

Consider the likeliest speed bump on Kagan’s road to confirmation, her decision to bar military recruiters from Harvard, which resulted in a prolonged and losing showdown with Congress. That episode will be the hardest thing on her record for many Democratic senators to accept (though accept it they will). But it was an overwhelmingly, even near-unanimously popular position to take at top law schools. By way of comparison, recall the mini-furor over Sonia Sotomayor’s “wise Latina” comments, which she’d repeatedly delivered in various versions on the academic conference circuit. There, the notion that a judge’s ethnic background could and should make for different and better decisions was met with predictable applause and little challenge; when aired in wider public debate, it proved hotly controversial and the nominee prudently backed away.

Obama spokespeople spent much of last week rumbling about the need for judges with a common touch who’d stand up for the people. This fed speculation that they might mix up the Court by picking an elected official, trial lawyer or crusading prosecutor. Just kidding! For better or worse, we’re in for more law made by Harvard, Yale and Chicago intellectuals.