Tuesday, July 8, 2014

Holmes dissents.

Justice Holmes submitted from Beyond this dissenting opinion, which he has kindly provided to us as well:

The Court's decision in Burwell v. Hobby Lobby, even if as I think wrong it is wrongly decided, does not have immediate practical consequences and if the President is not able to fill the gap in health insurance that employers must provide for their employees, in a manner that satisfies my brethren, in the long run Congress will either correct our error or affirm our judgement. My respect for the Court would prevent me from offering my own views in such a case, if it were not that the majority opinion, like other recent decisions, reflects a doctrine that is not found in our law. 

Not long ago, the Court decided that Americans have a near-absolute right to possess and use lethal weapons. This is said to be a right of self[-defense, but at common law, lethal means were not generally justified in self-defense, or in defense of property. This right to have and use lethal weapons is not conditioned upon a citizen's duty when called upon to defend his country, as the Constitution says, in the Court's view it is a form of self-determination. 

In other contexts, the Court has held that business enterprises and persons of unlimited means may spend as much they like to influence political contests. In a case from Michigan, the Court upheld the right of white voters to enact into law their belief that the accommodations made for those who have suffered race discrimination somehow injure those who have not. In the Hobby Lobby case, finally, the Court now holds that natural persons, even when acting through corporate shells, have the right to do business in their religious character, a right to demand that business associates and employees conform to their beliefs. Congress is said to have ordered the federal government may not substantially burden such business practices. I would hesitate to impute such an intention to Congress, otherwise so foreign to our law, unless it is more clearly stated. The common thread among these recent opinions, although it is not clearly expressed, is a libertarian doctrine that holds the individual to be sovereign, in the sense that governments are sovereign. 

Almost a century ago, I pointed out that the privilege we accord to freedom of speech and of the press, a principle derived from the English common law, is based upon the trust that society's interests are best served by free expression of honestly-held opinions. In our constitutional system, the marketplace of ideas provides the test of political truth. The Chief Justice has dismissed this principle with a wave of his hand: First Amendments rights are individual rights, he says. And so they are. But our Constitution grants legally enforceable rights to individuals only for proper public purposes. There may be a higher law, one to which many of us pledge obedience, but the law that this Court is authorized to enforce is a balance of correlative rights and duties, individual rights and community interests.

The Fourteenth Amendment, as we all now agree, did not enact Mr. Herbert Spencer's Social Statics. Nor does the Bill of Rights authorize the war of each against all. I respectfully dissent.

Wednesday, April 30, 2014

Sotomayor's Plea

The Supreme Court’s decision the other day in the Michigan affirmative action case—yes, Schuette v. BAMN was about affirmative action, hang on—prompted a flood of commentary, but neither the reporters covering the Court nor her fellow justices seemed to respond to Justice Sotomayor’s plea for frank talk. Respect for precedent keeps the justices from frankly acknowledging that affirmative action was at issue in the case. The result is that none of the five opinions clearly state the essential facts that are in dispute.

In Sotomayor’s dissent, joined only by Justice Ginsburg, she argues that affirmative action was followed by an increase in the proportion of students who identify themselves as “black” or “Hispanic” (or both) admitted to colleges and law schools that used such methods. The representation of racial minotities had been well below their share of the general population, began to rise after affirmative action was undertaken, and then declined sharply again when it was eliminated. One might draw the reasonable conclusion that affirmative action in admissions policy had helped to remedy effects of past and present race discrimination, and when affirmative action policies were suspended the effects of race discrimination reasserted themselves.

The State of Michigan disputed her facts, and Sotomayor was unable to make her point clearly, in part because the benign effects of “race conscious” policies are not accepted as legitimate reasons for their adoption. For the past twenty years, the Court has been asserting that affirmative action for blacks injures whites, those whom the first Justice Harlan called the “dominant race.” (Yes, that Justice Harlan, the one who argued for a “color-blind” Constitution more than a century ago.) 

Sotomayor and the male justices did not so much disagree as they talked past each other. Justices Kennedy, Breyer and Scalia, and Chief Justice Roberts, each expressed different reasons for upholding Michigan’s ban on race-conscious policies, and no opinion secured a majority vote. (Justice Kagan recused herself.) Each in different ways denied that the case was about affirmative action, however. Sticking to the doctrines announced in recent cases, the men insisted that the only question was whether race may be taken into account when a school seeks “diversity” in its student body. This was a policy matter the voters of Michigan might decide for themselves. Putting the question this way, of course, it answers itself.

Affirmative action, which appears to be needed if racial diversity is the target, was not openly discussed because it is barred except in extraordinary circumstances. Under recent precedents, laws that apply to racial groups must treat them equally. As Justices Scalia and Thomas suggested in their opinion, state policies that discriminate against whites are forbidden, just as policies that discriminate against blacks are forbidden. Affirmative action in their view discriminates against the "majority." The four concurring opinions for the Court seemed to agree that race need not be used as a criterion of “diversity”; that affirmative policies in favor of “minorities” discriminate against whites, and that any race-conscious policy is counter-productive because it cheapens the achievements of a favored minority and perpetuates racial stereotypes. These are conclusions of fact, but none of the four concurring opinions made much effort to establish their factual basis, relying instead on doctrine-driven precedent. The justices seemed to assert that the majority of Michigan voters vindicated the factual arguments against affirmative action by voting to ban it.

I think Sotomayor complaint is that doctrines have driven out facts. The national debate over affirmative action is being conducted as a war of slogans, and the Court has shirked its responsibility to separate fact from assertion, and to decide whether the Michigan ban on affirmative action has a reasonable basis.  

Neither side in the debate has done a very good job of stating a factual basis for their policy conclusions; but more on that another day.

Monday, April 21, 2014

Boadcasting Lies

The Supreme Court's decision in the McCutcheon case decided the other day tacitly rejected Justice Holmes's widely celebrated opinion in Abrams v. United States, in which he said that the American constitutional experiment was based on a free exchange of opinion--a "marketplace of ideas"--in which political truths could be tested and proven through peaceful debate. Election campaigns are marketplaces of this kind--not bazaars where goods are offered for sale, but the village commons and city street corners where people may proclaim their views.

Tomorrow the Court will hear arguments in Susan B. Anthony List v. Driehaus, challenging an Ohio law that criminalizes knowingly false campaign statements.  This will test the other side of Holmes's doctrine, often reaffirmed by the Court in the past, that false, malicious and harmful statements about public figures can be punished, the First Amendment notwithstanding (New York Times v. Sulivan, 1964). As Holmes once put it, no one is entitled to falsely shout 'fire' in a theater causing a panic (Schenck v. United States, 1919). Precedents notwithstanding, however, prospects for the Ohio law are not good, given the new majority's willingness to strike down any regulations that can be characterized as restraints on speech or the press.

A majority led by Chief Justice Roberts evidently is adopting a broad new doctrine, largely severed from precedent (except their own opinions). We might echo Holmes and question the "inarticulate major premise" on which their doctrine is based. Holmes's memorable phrase appears in his dissent in Lochner v. New York, in which he complained that the Court's majority opinion in favor of "liberty of contract" was based on an unexpressed economic theory. Scholars have noted that in the Roberts Court "freedom of expression" is the new "liberty of contract," a doctrine that can be used to strike down pretty much any governmental regulation. The power of wealth to drown rational discourse with lies can hardly be denied; there is no precedent for extending the First Amendment to protect megaphones blaring falsehoods. Unless, perhaps, we believe that the American constitutional experiment is not based on peaceful discourse at all, but on the clash of interest groups. Perhaps the experiment that Holmes thought was in progress had already failed.

Friday, April 4, 2014

Money Talks, But Too Loudly

Wednesday's decision by the Supreme Court in the latest campaign-funding case, McCutcheon v. FEC, has prompted much valuable commentary, but maybe it is worth adding a few words concerning the tacit rejection of Justice Holmes's constitutional views and methods. Justice Breyer in his opinion for the dissenters quotes Holmes's famous dissent in Abrams v. United States (1919). The reason to limit campaign contributions, Breyer says, is that by amplifying the voices of a few wealthy individuals, large expenditures can wreck the "marketplace of ideas" on which our democracy depends. The phrase, for which no attribution was needed or given, of course is Holmes's image for the peaceful discourse on which constitutional government depends.  He was not interpreting the First Amendment, he was expressing a structural principle of the Constitution. Even if the Sedition Act, at issue in the Abrams Case, was consistent with the Constitution, and even if throwing leaflets from a window, urging a general strike, could be understood to pose a "clear and present danger" of harm to the nation's efforts in wartime, the draconian sentences imposed in the case showed that the defendants were being punished, not for what they said or did, but for the beliefs that they held. In order to ensure that republican government functions as intended, the Constitution requires some restraints on speech and on the press: no megaphones in enclosed spaces, please; no false shouts of "fire" in a theater, causing a panic.Chief Justice Roberts expressly rejects this manner of deciding cases that arise under the First Amendment, at least so far as a law is said to be necessary to protect the integrity of the political process:  
[T]here are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. 
The rich and the poor alike are free to give money to candidates and parties, no disagreement there.  Money talks. But no right is absolute, and we limit freedom of speech and association in numberless ways, for the good of the community. The difficulty with Justice Roberts' opinion is that it lays out a doctrine, based largely on the language of his own prior opinions, that only a clear and present danger of selling government favors, or the appearance of doing so, can justify limitations on political expression or association. 

Justice Holmes famously said that the clear and present danger of a crime would justify punishment of otherwise protected speech. In Buckley v. Valleo the Court upheld portions of the campaign finance law against its first challenge, saying that the risk of bribery, and the appearance of bribery, was sufficient for the government to impose limits on individual contributions. Rogers' doctrine overrules that precedent and turns Holmes on his head. It makes the equivalent of bribery the only justification for limiting campaign contributions. Justice Breyer energetically points out that this is a new doctrine that is not justified by any precedent, not even by Roberts' own past opinions. It is a legislative pronouncement for future application. One imagines briefs are already being written, arguing that the few remaining limits on contributions are unjustified, since a Congressman is not likely to be bribed solely by a gift of $2600. . . .

Among the many legal questions raised by Roberts' doctrine is the awkward circumstance that in this case it rests upon what he claims to be a factual refutation of the purpose of the law in question. But more about the doctrine and the supposed facts on which it rests, later.

Tuesday, April 1, 2014

"Law in Science and Science in Law"

That was the title of a talk Holmes gave to the New York Bar Association on January 17, 1899. He had already given a copy or the prepared talk to the Harvard Law Review, where it appeared without delay. The burden of the talk was that explanations of law in the modern world--in the dawning twentieth century--explanations should be based on historical facts, rather than the doctrines and systems of the past. Law like any other human institution changes, and to understand its present state we must known its point of origin, and the forces that continued to shape it. ctAlthough less well known than some other of his addresses, this was the founding document of "legal realism," and of Holmes's own Malthusian beliefs. Holmes was wrong about the forces that shaped society and its laws, largely because he believed the supposedly scientific, evolutionist doctrines of his day, which rested upon a fallacy, the asumption that conflict between races and classes was the force shaping society and law. Today, we call this fallacy "social darwinism" although Charles Darwin had nothing to do with it. In Holmes's day it was linked to an array of pseudo-sciences, the "scientific" anthropology that claimed to have identified criminal proclivities in the dimensions of a skull, and the "eugenic" doctrine that character traits could be bred into the people of a nation by limiting the reproduction of disfavored. These were "progressive" doctrines, but had no relation to the progressive politics of today--they were thought to be progressive because they were based on the latest, scientific thought. 
We may doubt the doctrines of social evolution, or even that progress has been made, but it does seem that we have better tools today for determining historic facts, and indeed for determining facts in general. A question does come to mind, whether we might be able to make better use of genuine scientific methods in determining what is fact, historic fact and evidentiary fact, now that DNA analysis and Bayesian probability have overturned so many of the superstitions of the past. We have evidence, if not absolute proof, that Thomas Jefferson did father Sally Hemmings' children, and we have Annette Gordon-Reed's careful and thoughtful studies of evidence and proof concerning such questions. Shouldn't we address law, in theory and practice, with modern tools of explanation and proof?  

Thursday, March 27, 2014

Facts in the Case

Hon. Bernard A. Friedman, a federal district court judge in Detroit, has just decided that Michigan's ban on same-sex marriages violates the Constitution of the United States. What would Holmes say?

He could not have imagined the circumstances under which such a question came before a federal court, and Judge Friedman's reasoning would have been wholly unfamiliar to him; yet Holmes would have something to tell us about the case. Holmes thought the law of the future would be based on scientific understanding. Judge Friedman is one of many district court judges who are taking a hard look at the factual basis of statutes. He held that Michigan's same-sex marriage ban was not "rationally related to any conceivable legitimate governmental purpose." That sounds harsh and extreme, but it is lawyer's language. In ordinary speech, one would say that the state's witnesses failed to provide sufficient evidence that there was a factual basis for the claimed purpose of the state's marriage ban.

A state government may not restrain a person's liberty without some acceptable purpose. In this case, the State of Michigan forbade two women from jointly adopting their three children, solely because the women were not and could not be married to each other. Judge asked the State of Michigan to justify its refusal to accept a marriage between the women, and the state's witnesses were unable to express any acceptable reason for discriminating against the couple, solely because of their sex. 
The sponsors of marriage bans in state after state claim that same-sex marriages are bad for children. This has been an effective advertising strategy in support of popular initiatives. The first important defeat for that strategy was suffered in California, in the Proposition 8 case, just under four years ago, when the factual basis of this claim was challenged. In that case, Judge Vaughan Walker held a trial, to determine whether there was a factual basis for any of the claims made in support of California's marriage ban. After making careful findings of fact, he concluded that history and social science supported the conclusion that children raised by same-sex couples were no different from those raised in heterosexual marriages, and there was some evidence that recognizing the marriages of same-sex partners would be beneficial to the children that they raised. Moral or religious objections to homosexuality were not acceptable reasons for legal discrimination against same-sex couples. Only some material purpose could justify infringing constitutional rights: the state needs a reason before it can discriminate. The California marriage ban accordingly was held to lack a rational basis, and was invalidated. (Appeals were eventually dismissed by the Supreme Court on procedural grounds,and Judge Walker's opinion is no frequently cited.)

In Detroit, Judge Friedman followed Judge Walker's lead, and ordered a trial to determine whether the State of Michigan had a factual basis for the claims it made in support of its ban on same-sex marriage. Forced to present evidence, the State of Michigan offered only familiar, shopworn arguments: marriages between homosexual parents somehow would be bad for children. In the usual manner of a judge weighing evidence, Judge Friedman found the state's evidence wholly without credibility. 

What would Holmes say? Legislation, he thought, should be based on reasonable judgments about the evil to be corrected and the results to be achieved. In talks given in the 1890s he expressed the hope that the social sciences would guide lawmakers in their work. Unfortuantely, the judges of his day were offered the pseudo-science of "eugenics." The social sciences have begun to earn that title, however, and district court judges of today, whose job it is to identify facts and draw conclusions from them, are better educated in such matters and will follow Judge Walker's lead and cast a critical eye, informed by a better understanding of what counts as fact, on the claims made on behalf of invidious discrimination.

Wednesday, March 26, 2014

Corporate Consciences?

What would Holmes say about yesterday's dispiriting oral arguments in Hobby Lobby and associated cases? The justices seem to be inclined to accept the argument that a federal statute, the Religious Freedom and Restoration Act, can be interpreted to extend  religious freedom to business corporations, allowing their to refuse to pay for health insurance for their employees. The statute applies to "persons," and it seems that the Court now understands that word to mean, in every context, an entity that for most purposes (except for voting or holding office) has the rights of a human being. Sigh. This all begins with the Fifth and Fourteenth Amendments, which say that no "person" may be deprived of property without due process of law. This has always been understood to protect the property of business corporations from arbitrary confiscation, corporations having been considered by the English common law to be artificial "persons." The Supreme Court in recent years, partly to remedy its failure to give substance to the constitutional "privileges and immunities" of citizens of the United States, has imported fundamental rights enumerated in the first eight amendments into the realm protected by the "due process of law" clauses of the Fifth and Fourteenth Amendments. Consequently, human rights, and not only property rights, are protected and may not be enfringed without due process of law. It makes no sense, however, to read this modern exercise in interpretation into the old common-law concept of a property-owning corporation. Neither the Congress that approved the amendments, nor the Congress that wrote RFRA, could have meant to extend human rights to business corporations simply by using the word "persons."

Corporations today are creatures of state law, chartered for specific purposes and authorized to carry out only the purposes for which they are created. Metaphysical notions embedded in the common law of fifteenth century England should be forgotten. The common law, Holmes long ago reminded us, is not a "brooding omnipresence in the sky," it was a set of ideas derived from the decisions of English judges. The Queen of England is a corporation sole, under the English common law, so that the existence of the monarch as the embodiment of the nation is not interrupted by her death. But the corporation sole, the metaphysical extension of a human being, does not exist in American law, and certainly does not exist in state corporate licensing laws. 

Business corporations have the right under state law to own property, the Fourteenth Amendment protects that right, and Congress may enforce the amendment through appropriate legislation. But a business corporation does not have human rights, and it is absurd to think that Congress meant to confer religious freedom on a mechanism devised for the conduct of business. A corporation does not have a conscience, and does not have a right to practice a religion unless that is a purpose for which it is chartered. Religious organizations are exempt from Obamacare requirements that conflict with their purposes. The owner of a business has no claim to impose his own beliefs on those subject to the authority of his business corporation, a convenience he may use to limit his liability and to aggregate capital, but which he may not use to practice his religion, or impose it on the corporations employees.