A Gaping Hole on the Court

The death of Supreme Court Justice Antonin Scalia on February 13 represents an enormous loss to American conservatism—and a challenge to those who hope to name his successor. Ordinarily, the sitting president would nominate a replacement, and President Obama has already indicated his intention to do so. But this is an election year. According to Ed Whelan, president of the Ethics and Public Policy Center, “It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year.” Indeed, under its informal “Thurmond Rule” the Senate can block judicial nominations in an election year. Democrats invoked the Thurmond Rule to oppose George W. Bush’s nominees. This time around, Senate majority leader Mitch McConnell appears ready to take the same approach.

At stake is whether the Court will be reconstituted with a liberal majority intent on reversing Justice Scalia’s extraordinary legacy. With three decades on the bench, Scalia was the longest-service member of the current Court. Appellate judge Richard Posner, who in recent years became a harsh Scalia critic, described him in 2011 as “the most influential justice of the last quarter century.”

When he became an associate justice in 1986, Scalia’s judicial philosophy lay on the outskirts of the Court and of the American legal establishment. Over time, however, his commitment to textualism and originalism gained traction, even among the Court’s more liberal members. As a textualist, Scalia maintained that courts must follow the clear language of statutes and resist the temptation to import their policy preferences into the law—the defining sin of judicial activists. He was contemptuous of efforts to interpret laws via “legislative history,” a grab-bag of self-serving congressional utterances from which a clever judge could usually extract some statement supporting his or her preferred outcome. As the New York Times’s Adam Liptak reports, Scalia’s campaign against legislative history “was largely successful. Advocates and other justices rely on legislative history sparingly these days.”

In the area of constitutional law, Scalia was the Court’s leading originalist: he sought to interpret the Constitution’s text as it would have been understood by those who ratified its provisions. Here again, Scalia’s influence is palpable. Though the Court’s liberal justices differed with him in their conclusions, they increasingly couched their arguments in originalist terms. By the time Scalia wrote the majority opinion in the 2008 case of Heller v. District of Columbia, which held that the Second Amendment establishes an individual right to bear arms, the entire court was engaged in a debate over how the Founders understood the amendment’s somewhat enigmatic language. References by Supreme Court justices to the “Living Constitution” theory—that the meaning of the Constitution must change to keep pace with the times—are now vanishingly rare.

Another Scalia decision, Employment Division v. Smith, held that individuals cannot use the First Amendment’s “free exercise” clause to demand exemptions from laws on religious grounds. That ruling continues to split conservatives, who generally support robust protection for religious liberties, particularly in the context of today’s culture wars. The Religious Freedom Restoration Act, or “RFRA”—a favorite among conservatives—was enacted as a direct response to Smith.

Smith demonstrates an important point about Scalia’s intellectual rigor: he regularly found himself at odds with conservatives because of his commitment to following the letter of the law. If the law leads to unwelcome consequences, Scalia insisted, it’s up to Congress to change it or to the people to amend it (in the case of the Constitution). Thus, in 2004’s Hamdi case, he opposed the Bush administration’s position that an American citizen who had allegedly taken up arms with the Taliban could be held indefinitely without charges. In other decisions, Scalia has sought to strengthen the rights of the accused, notwithstanding his strong personal preference for law and order. In Crawford v. Washington (2004), for example, he held that criminal defendants have a right to live testimony from the witnesses against them, even when other forms of testimony might be available.

Much of Scalia’s influence came through his dissenting opinions. Well-researched and persuasively written, his dissents planted seeds that often bore fruit in later cases. In the 1988 Morrison v. Olson case, Scalia found himself in a minority of one, arguing against Congress’s power to vest executive powers in bodies outside the president’s control (in that case, the independent counsel). But his views eventually carried the day in 2010’s Free Enterprise Fund v. PCAOB, in which the Court held that Congress couldn’t create an executive body that was effectively insulated from presidential control.

Even when he wasn’t successful, Scalia’s dissents were prescient—and often biting. In Lawrence v. Texas, Scalia rightly predicted that the Court’s declaration of a right to engage in consensual homosexual relations would lead to a right to same-sex marriage. In the case that established that right—Obergefell v. Hodges—Scalia mocked the soaring rhetoric of Justice Anthony Kennedy’s majority opinion, declaring that those who signed on to it ought to “hide [their] head in a bag.”

In other contexts, Scalia could work with the Court’s liberals. Unlike associate justice Clarence Thomas—the Court’s most intellectually consistent originalist—Scalia made concessions to stare decisis, the principle that prior court decisions shouldn’t be disturbed unless there is a compelling reason to do so. On that basis, he generally supported the New Deal Court’s expansive reading of the Commerce Clause—refusing to strike down the Controlled Substances Act in Gonzalez v. Raich (2004). He also refused to disturb the judge-made doctrine of substantive due process—which is said to “incorporate” certain substantive guarantees into the due-process clause of the Fourteenth Amendment. Thomas disagreed on both counts, but Scalia’s position probably gave him more credibility with the Court’s liberals.

Scalia’s intellect and his appreciation of the political realities of the Court made him the most effective conservative jurist of his time. His death leaves a gaping hole, and it may signal the beginning of a period of drastic change on the Court. Liberal lion Ruth Bader Ginsburg (a pancreatic-cancer survivor) is 82; Kennedy, the “swing vote” justice, is 79. Whether the next generation of justices builds upon or reverses Scalia’s legacy depends entirely on the outcome of the election in November.

The Controversy Over Sanctuary Cities

Although progressives hate to admit it, the rise of Sanctuary Cities (that is, cities that refuse to cooperate in enforcing federal immigration law) is a legacy of the states’ rights movement.  A city that declares itself a “sanctuary” is exercising its right of “interposition” — that is, the right of state and local governments to refuse to administer federal laws.   The Supreme Court has repeatedly recognized that the federal government cannot force the states to do its bidding.

The question for progressives is: why can’t states like Arizona exercise their freedom to reinforce federal immigration laws?

Great Review of A Less Perfect Union in the WSJ

The Wall Street Journal has a great review of my new book, A Less Perfect Union.  Legal scholar Michael Greve praises my book for making the case for federalism “well and entertainingly.”  Some highlights:

  • “Consistently insightful”;
  • “Telling and often hilarious examples.”
  • “A more decentralized, diverse and democratic politics, Mr. Freedman argues compellingly, speaks to ‘modern sensibilities.'”

The review is here (but subscription required to read the whole thing…)

Talking With Dennis Prager about A LESS PERFECT UNION

I was honored to be a guest on Dennis Prager’s always-great show.  We talked about my latest book, A Less Perfect Union, which he called “important,” states rights, and living in Brooklyn (DP is originally from Brooklyn).  He also agreed with my recent City Journal piece which, as he puts it, shows how the Obergefell decision “makes a mockery of the Founders’ concept of states’ rights.”

Obergefell’s Assault on Liberty and Federalism

Despite what the newspaper headlines say, the U.S. Supreme Court’s ruling in Obergefell v. Hodges did not “legalize” same-sex marriage. It mandated same-sex marriage, something very different. States were previously free to recognize gay marriage, but now they are compelled to do so. From now on, it is illegal—unconstitutional—for any state not to issue marriage licenses to same-sex couples.

Many tout Obergefell as a victory for civil rights, but it is anything but. By turning same-sex marriage into a constitutional “right,” the Supreme Court has denied the people of all 50 states the most important civil right of all—the right to govern themselves. A mere decade into the political deliberation on same-sex marriage, the Court has taken the issue away from the voters. According to the narrow 5–4 majority, there has already been more than enough “legislation, litigation, and debate,” as Justice Anthony Kennedy put it.

The damage to democracy is bad enough, but it is greatly compounded by the damage to American federalism. The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity,” “autonomy,” or any of the other amorphous phrases contained in Justice Anthony Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

By jettisoning federalism, the Court has put other civil liberties at risk. When the definition of marriage was a matter of state policy, voters and politicians could balance competing interest—particularly the rights of religious organizations that adhere to the traditional definition of marriage—based on local preferences. That kind of balancing is scarcely possible in federal courts, which are, as Chief Justice Roberts pointed out in his dissent, “blunt instruments when it comes to creating rights” because “they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.

You can read my longer analysis over at City Journal.

The “SCOTUS-Care” Travesty

As I discuss over at City Journal, this week’s Supreme Court decision in King v.Burwell is good news for the Obama administration and terrible news for the rule of law. By a margin of 6-to-3, the Court upheld an IRS rule that supposedly implements the Affordable Care Act—Obamacare—by extending health-insurance tax credits to taxpayers in states that have no health insurance exchange of their own, but rather rely on the federal healthcare.gov exchange. The problem with this rule, as the plaintiffs in King pointed out, is that it flatly contradicts the ACA. The statute clearly limits tax credits to taxpayers who use state insurance exchanges, not the federal one. A majority of the Court, therefore, simply rewrote the ACA to make it consistent with the administration’s preferred rule. That’s not the way things are supposed to work in a system in which “all legislative power” is vested in the legislative branch (Constitution, Article I).

The stakes in King were high: 36 states use the federal exchange, and without Obamacare’s tax subsidies, a large number of low-income citizens would be exempted from the law’s individual mandate. The result, according to some critics, was that the individual health-insurance markets in those states would fall into an economic “death spiral” of falling participation and rising premiums. That was a risk that Congress deliberately took.

Obamacare provides two different mechanisms for establishing a health- insurance exchange. A state can establish an exchange under Section 1311 of the Act. And in states that “fail” to establish an exchange, the secretary of Health and Human Services must establish an exchange under Section 1321. When discussing eligibility for those all-important tax credits, the ACA says that they are available only to taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”

Why did Congress limit tax credits in that way? To pressure states into creating their own exchanges (constitutionally, the federal government cannot force states to create health-care exchanges). At the time of the law’s passage, its congressional backers assumed that each state would buckle under and create its own exchange. Of course, that’s not how things ended up. Enter the IRS, which expanded tax credits to all exchanges in order to guarantee the viability of the Obamacare project.

The court’s majority opinion, written by Chief Justice John Roberts, has a surreal, through-the-looking glass quality about it. The phrase “an Exchange established by the State under Section 1311,” he says, is “ambiguous.” Actually, the phrase is crystal clear, including the word “state” which the ACA defines as “each of the 50 States and the District of Columbia.” If anything is unambiguous about Obamacare, it’s that tax credits are available only to those who purchase insurance through an exchange established by one of the 50 states or the District of Columbia.

No matter: the finding of “ambiguity” gives the Court license to interpret the law, rather than simply applying it. In the name of interpreting the supposedly ambiguous language, Roberts looks to the overall purpose of Obamacare which, he decides, is the avoidance of the dreaded “death spiral.” His opinion is peppered with references to “death spirals”—one could almost make a drinking game out of it—and Congress’s desire to avoid them. The specific words enacted by Congress are of little importance, we’re told, if those words threaten “to create the very ‘death spirals’”— drink!— “that Congress designed the Act to avoid.” And so, in order to effectuate the law’s higher purpose, the Court decrees that “an Exchange established by the State under Section 1311” includes “an Exchange established by the Secretary of HHS under Section 1321.” Curiouser and curiouser, as Alice said.

The Supreme Court’s decision, and its reasoning, strikes a double blow against the rule of law. First, it ratifies the executive branch’s unconstitutional usurpation of legislative power. When an administrative agency unilaterally rewrites the terms of a statute, it violates Article II’s command that the executive must “faithfully execute” the laws passed by Congress. Compounding the problem, the Court engages in its own power grab—declaring that neither Congress nor the IRS deserve any particular interpretive deference. Rather, “it is . . . our task to determine the correct reading” of the statute—notwithstanding Congress’s plain language. The result in King will embolden President Obama, and future presidents, to ignore the letter of the law when it contradicts their evolving view of the law’s spirit.

Alas, the Supreme Court’s handling of Obamacare is a stark illustration of what results when the judicial and executive branches collude to rewrite the laws passed by the legislative branch. In the first major Obamacare decision, NFIB v. Sebelius, the Court rewrote the Act’s “penalty” clause to make it into a “tax,” thus saving the law from constitutional attack. And now the phrase “established by the State” has been effectively excised from the text.

The result of all this judicial activism is that a law that was sold to the public as creating a system of state-based exchanges with no new taxes has been turned into a system dominated by a federal exchange and enforced via taxes. In dissent, Justice Scalia—joined by Justices Thomas and Alito—rightly accuses the majority of ignoring the rule of law; “that ours is a government of laws and not of men.” Given the judicial makeover of the ACA, Scalia suggests that “we should start calling this law SCOTUSCare.”

Hard cases, according to the cliché, make bad law. But the current Supreme Court has reached a new jurisprudential milestone: it can make bad law out of cases that ought to be easy.

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