Category Archives: In the Media

William Blake in the Associated Press

Pandemic means a silent June at the Supreme Court

By Jessica Gresko

WASHINGTON (AP) — It’s the time of the year when Supreme Court justices can get testy. They might have to find a new way to show it.

The court’s most fought-over decisions in its most consequential cases often come in June, with dueling majority and dissenting opinions. But when a justice is truly steamed to be on a decision’s losing side, the strongest form of protest is reading a summary of the dissent aloud in court. Dissenting justices exercise what a pair of scholars call the “nuclear option” just a handful of times a year, but when they do, they signal that behind the scenes, there’s frustration and even anger.

The coronavirus pandemic has kept the justices from their courtroom since March and forced them to change their ways in many respects. Now, in their season of weighty decisions, instead of the drama that can accompany the announcement of a majority decision and its biting dissent, the court’s opinions are being posted online without an opportunity for the justices to be heard.

University of Maryland, Baltimore County political science professor William Blake, who co-authored the article calling oral dissents the nuclear option, says a June without them would be a “missed opportunity.” They are “a chance to see the justices as exhibiting emotions,” not just the logic of their opinions, he said.

Justice Ruth Bader Ginsburg has said that an oral dissent “garners immediate attention.”

“It signals that, in the dissenters’ view, the court’s opinion is not just wrong, but grievously misguided,” she has said.

The act of reading can also be a signal to Congress. In a 2007 dissent Ginsburg read from the bench, she called on lawmakers to overturn her colleagues’ decision in a case about equal pay for women. Congress did, passing the Lilly Ledbetter Fair Pay Act. Ginsburg’s oral dissent underscored her belief that urgent action was needed, even if it wasn’t the only reason lawmakers acted.

University of Minnesota professor Timothy Johnson, who has written about oral dissents, says justices also reach the public through them. “If you can have a vociferous enough dissent from the bench you’re going to get the nightly news to talk about it,” he said.

The court, which heard arguments in 10 cases by phone last month, hasn’t said what would happen this year if a justice wants to note that they would have read a dissent aloud or if there’s a way they might still do so. But there are several cases remaining to be decided where a dissent from the bench might have happened in normal times.

Decisions that divide the court 5-4 are more likely to generate the passion that prompts a dissenting justice to speak up, research shows. This year, unresolved cases about gay and transgender rights, President Donald Trump’s decision to wind down the Deferred Action for Childhood Arrivals immigration program and restrictions on abortion in Louisiana might have produced dissents read aloud.

Dissents from the bench in contentious cases go back to the 1940s. In 1973, Justice Byron White read aloud a dissent in Roe v. Wade, the abortion rights case. A 1978 case invalidating a University of California affirmative action program resulted in four concurring and dissenting statements from the bench. And in 2006, justices Antonin Scalia and Clarence Thomas read dissents when the court rejected a Bush administration plan to try Guantanamo Bay, Cuba, detainees before military commissions.

In the last decade, justices have read an average of between four and five dissents a year, according to a list maintained by Supreme Court librarian Jill Duffy and the Federal Judicial Center’s Elizabeth Lambert. The most recent year they found no oral dissents was 1984.

Oklahoma State University professor Eve Ringsmuth, who plays recordings of both opinion announcements and oral dissents for students in her undergraduate courts class, says they’re a valuable resource because they’re often more easily understood than the actual decision. Students frequently remark, “Wow, that was so clearly explained,” she said.

Justices’ spiciest spoken words are usually in their written dissents, but occasionally what they say in their oral summary is memorable. Dissenting from the bench in a 2007 case that invalidated school desegregation efforts, Justice Stephen Breyer criticized his colleagues, saying “it is not often in the law that so few have so quickly changed so much.” That line didn’t appear in his written opinion, but it captured Breyer’s sour mood at the end of a term in which he was often in dissent and the two newest justices, Chief Justice John Roberts and Justice Samuel Alito, were in the majority.

Over the last decade, Breyer and Ginsburg have been the most prolific oral dissenters, reading about a dozen times each. Alito and Justices Elena Kagan and Sonia Sotomayor have each read three or four times in that time while Thomas has only read twice since joining the court in 1991. Roberts’ lone oral dissent came in 2015 when the court ruled that gay couples have a right to marry nationwide. His decision to read aloud may have kept Scalia from reading from his own more fiery opinion. The court’s newest members, Justices Neil Gorsuch and Brett Kavanaugh, have yet to read a dissent aloud.

Arkansas State University professor Hans Hacker, Blake’s co-author, calls dissents from the bench a “piece of how the Supreme Court interacts with the public.” But, he said:, “that tool doesn’t seem to be available at the moment.”

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William Blake in the Baltimore Sun

Bring Back O’Connor

The death of Justice Antonin Scalia has already deepened the divide in American politics. Even when the president’s party controls the Senate, Supreme Court confirmations are difficult; just ask President George W. Bush about what happened with Harriet Miers. In the midst of an open-seat presidential election, and with the White House and Senate controlled by opposing — and increasingly polarized — parties, it might seem impossible for President Barack Obama to put a new justice on the bench.

The key word there is new. To minimize the chances of a Senate filibuster, President Obama should nominate Sandra Day O’Connor. There is historical precedent for reappointing a former justice: Charles Evans Hughes stepped down from the court to run for president in 1916; in 1930, he rejoined the court as chief justice.

Justice O’Connor is nearly 86 years old, which would normally be considered a liability. Under these circumstances, her age is a significant asset. She is more than capable of serving on the court for a year or two, after which she could retire and the new president could use his or her political mandate to appoint a younger justice. Reappointing Justice O’Connor would benefit President Obama, the court, and, most importantly, the American people.

In 2006, Justice O’Connor retired from the Supreme Court to care for her ailing husband. Since his death, she has used her status as a retired justice to hear several important cases on the federal courts of appeal. Her ability to write pragmatic judicial decisions hasn’t diminished with age.

Justice O’Connor’s view of the law is a product of her remarkable life. Unlike the career judges who comprise the rest of the court, Justice O’Connor took a different path. Before becoming a judge, she was the Republican majority leader of the Arizona Senate — the first woman in American history to lead a state senate. Elected officials bring a different perspective to the bench; Chief Justice Earl Warren, author of Brown v. Board of Education, engineered many crucial unanimous decisions using the instincts he honed as governor of California.

During her time on the bench, Justice O’Connor was frequently labeled the court’s swing justice, but that term is deceptive. It’s not that she’s some easily-swayed judicial fence-sitter; it’s that her jurisprudence doesn’t fit neatly into an ideological box. She crafted carefully worded opinions, deciding cases on narrow legal grounds to prevent unforeseen social consequences.

Usually, presidents relish the opportunity to replace a justice appointed by a president from the opposite party. With less than a year in office, President Obama has little chance of moving the court significantly to the left, but he could keep the court fully staffed. Moreover, nominating Justice O’Connor would increase gender diversity on the court and would be consistent with President Obama’s (often unsuccessful) philosophy of forging consensus and compromise.

Nominating Justice O’Connor would also be a shrewd political move. Republican leaders routinely tout President Reagan as an icon; a vote against confirming Justice O’Connor would be an admission that the patron saint of the modern Republican Party wasn’t infallible. Senate Republicans couldn’t question Justice O’Connor’s credentials. And they would be unable to cast her appointment as one that would shape the court for the next generation.

Beyond the Beltway political maneuvering, however, lies the greatest virtue of this Supreme Court compromise. With only eight justices, the Supreme Court risks tie votes in several crucial cases this term. In a 4-4 decision, the ruling of the lower court stands, and no precedent is set. It is as if the justices never heard the case in the first place.

A key function of the Supreme Court is settling disputes among the lower courts about how to interpret the Constitution and federal law. The Constitution cannot mean one thing in Alabama and something else in Wyoming. For the court to carry out its mission, it needs to avoid tie votes.

One way or the other, the presidential election will decide the long-term future of the court. The only question is whether President Obama and Senate Republicans are more interested in scoring political points or keeping the court functioning this year. Reappointing Justice O’Connor is the best way to achieve the latter. And, if an O’Connor appointment wins over public support, the eventual presidential nominees on either side will need to address the question of whether a doctrinaire liberal or conservative judicial philosophy truly is preferable to a pragmatic jurisprudence.

The one thing this election season has taught us is that the traditional political playbook no longer works. The same logic applies to this Supreme Court vacancy.

William Blake ( is assistant professor of political science at the University of Maryland, Baltimore County. Hans Hacker is associate professor of political science at Arkansas State University.

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William Blake in the New York Times

Supreme Court’s ‘Long Conference’: Where Appeals ‘Go to Die’

By Adam Liptak

WASHINGTON — Four weeks from now, on Sept. 28, the Supreme Court justices will gather in private for an annual ritual called the “long conference.” They will consider the roughly 2,000 petitions to hear appeals that have piled up over the summer. And they will reject almost every one.

“The summer list is where petitions go to die,” said Gregory G. Garre, a solicitor general in the George W. Bush administration who is now at Latham & Watkins.

The odds of persuading the Supreme Court to hear a case are always long. At the conferences held on many Fridays during the term, which lasts from October to June, the justices consider perhaps 200 petitions at a time and grant about 1.1 percent of them. At the long conference, the rate is roughly half of that, around 0.6 percent.

That difference is significant. “For the majority of petitioners, the most important moment is trying to get in the door,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “Once you’re in, the statistics say, you have a two-thirds chance of winning. So the difference between a grant and a deny is truly the difference for a handful of cases on the summer list between winning and losing.”

Lawyers and scholars have various theories about why the long conference is so inhospitable. One is that the justices, who decide about 70 cases a year, do not want to grant too many petitions right away for fear of having to turn down better ones later on.

“It’s like the beginning of a long buffet,” Professor Fisher said. “You don’t want to fill your plate with too much stuff, lest you not have room for some delicious items at the end of the line.”

A new study says law clerks, rather than the justices, are to blame. New law clerks arrive over the summer, four for each justice, and they appear to be particularly reluctant to recommend granting petitions soon after they start.

That matters, because law clerks play a significant role in reviewing the appeals, which are formally called petitions for certiorari. Eight of the nine justices — the exception is Justice Samuel A. Alito Jr. — have assigned their law clerks to a shared “cert. pool.” A single clerk makes a recommendation to all of the participating justices about which cases to hear.

Justice John Paul Stevens, who retired in 2010, never joined the pool. He said it had caused “the lessening of the docket.”

“You stick your neck out as a clerk when you recommend to grant a case,” he told the journalist Tony Mauro, then with USA Today, in 1998. “The risk-averse thing to do is to recommend not to take a case.”

That is true all year long. But it is even more true, the new study found, when clerks are just getting started. “Compared to all other times in their tenure, clerks are significantly less likely to recommend a grant at the long conference,” the study concluded.

The study was prepared by William D. Blake, a political scientist at the University of Maryland, Baltimore County; Hans J. Hacker, a political scientist at Arkansas State University; and Shon R. Hopwood, a teaching fellow at Georgetown University Law Center. It analyzed clerks’ “pool memos” from 1987 to 1994, which were released as part of the papers of Justice Harry A. Blackmun.

The study found that clerks considering similar petitions were 36 percent less likely to recommend granting them during their first months on the job. The justices seemed to sense this, overriding denial recommendations at the long conference at a slightly higher rate than at other times, but not enough to make up the difference.

The bottom line, the study said, is that “litigants face an arbitrary and legally irrelevant disadvantage that is empirically attributable to the clerks’ initial hesitation to recommend grants.”

Sophisticated lawyers do what they can to dodge the long conference. “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” said Mr. Garre, the Latham & Watkins lawyer. “Fortunately, as tough as the odds are, the cream can still rise to the top.”

Irving L. Gornstein, the executive director of Georgetown’s Supreme Court Institute, listed some of the ways in which lawyers can try to work the system to avoid the long conference. After a federal appeals court issues a ruling, he said, lawyers can seek a rehearing from the full appeals court to stretch things out, or go straight to the Supreme Court to hasten them. They can file petitions right away or wait for the 90-day deadline. They can seek extensions of the deadline.

Such maneuvering may only drive down the rate of granting cases at the long conference further, Professor Fisher said.

“Precisely because the summer list has become such a known quantity among the Supreme Court bar and others, my sense is that fewer serious cases end up on the list,” he said. “So it’s a bit of a self-fulfilling prophecy.”

The study proposed additional training for law clerks to encourage them, right from the start, to recommend granting more cases. But it stopped short of suggesting that the justices reconsider whether they should review so many petitions in a single conference.

A management consultant might, for instance, urge the court to add conferences during the summer. Professor Blake, one of the study’s authors, said such a recommendation would have been presumptuous.

“I don’t think we’re going to tell the justices to cut their vacations short,” Professor Blake said.

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Legislative Looting: The Filibuster and the Founders

Longtime Capitol Hill staffer, Richard Arenberg, has written an op-ed in Politico defending the filibuster.  Arenberg offers an historical justification that is as flawed as it is simplistic.  He writes:

The founding fathers greatly feared the “tyranny of the majority” – and they created the Senate to avoid what they deemed the rule of the mob.

The Senate was the result of the “great compromise” at the 1787 Constitutional Convention, which shaped the body to represent the states. Each state has two senators regardless of its population size – an idea so important to the framers that the Constitution in Article V requires that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.”

On the former argument, Arenberg is paraphrasing from Federalist 10, a pamphlet written (we now know) by James Madison, in support of the Constitution.  However, Arenberg totally misrepresents the filibuster as solution to majority tyranny.  Madison’s argument does not mention legislative minorities at all, save for this: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables a majority to defeat its sinister views by regular vote.”

Madison writes more extensively about legislative rules in Federalist 58. Here, he discusses the Constitution’s quorum requirement – that only a simple majority of members of Congress need to be present to conduct business.  Madison observes:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

Madison admits that requiring a large portion of members of Congress to be physically present would make Congress more deliberative, but it creates a problem that is much worse: it would undermine energy in government.

Alexander Hamilton, another contributor to the Federalist Papers, shared Madison’s fear.  In Federalist 22, Hamilton contends:

The necessity of unanimity in public bodies, or of something approaching towards it, has been formed upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority.

(If you think the use of the word junto seems extreme, consider the word filibuster.  It evolved from a Dutch word for piracy – a quite literal tyranny of the minority.)

The Constitution was drafted because the existing governmental framework, the Articles of Confederation, put the United States on the brink of collapse.  The Articles failed in no small part because of its requirement for a supermajority vote in Congress to pass any law.

The modern Congress has brought the country back, once again, to the brink of a government shutdown, and the wanton abuse of the filibuster also plays a significant role in this being the most “do-nothing Congress” in American history.

Moving to Arenberg’s second argument: the fact that equal representation in the Senate is (essentially) an unamendable clause in the Constitution makes it a really important part of the American democratic system.  What Arenberg fails to acknowledge is the immediate preceding clause in Article V, which is the only other part of the Constitution that was, at least, temporarily, unamendable.

For the first twenty years of this Constitution’s history, Congress could pass no law, and the country could pass no constitutional amendment that would regulate or abolish the international slave trade.

The Constitution is full of praiseworthy clauses, but it also contains at least one downright evil clause.  And this clause was considered so important to the functioning of American democracy, that it could not be changed for a generation.

Every senator who has ever defended the practice of filibustering has said it promotes deliberation and compromise.  Arenberg and co-author Robert Dove expand on this argument in their book, Defending the Filibuster: The Soul of the Senate, which discusses other parts of the Federalist Papers, but makes no mention these crucial Madisonian or Hamiltonian arguments.

As I have argued elsewhere, many more Founders considered the advantages of supermajority votes and rules allowing extended debate in Congress, and, ultimately, rejected them.

Designing a lasting system of democratic government required careful planning.  Thus, the debate over filibuster reform deserves more than platitudes from a middle school civics curriculum.

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Gay Marriage as Gender Discrimination?

Many supporters of gay rights, including President Obama, believe that sexual orientation should be treated as a suspect classification – that is when a government policy makes classifications on the basis of sexual orientation, courts should view those policies with suspicion.  The problem for the Court, and especially Justice Anthony Kennedy, is how much suspicion.

Classifications based on race demand strict scrutiny from the courts (a very high threshold), while classifications based on gender trigger intermediate scrutiny.  Courts are instructed to allow all other types of group classifications if they have a rational basis (a very low bar to meet).

Justice Kennedy has written two landmark opinions in favor of gay rights in past cases, but it is not entirely clear how the logic of those opinions fit into this system of civil rights law I just described. Buried in the oral argument transcript of the Proposition 8 case is a potentially key revelation of how Justice Kennedy is thinking now:

JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

MR. COOPER: Your Honor, I -­

JUSTICE KENNEDY: It’s a difficult question that I’ve been trying to wrestle with it.

MR. COOPER: Yes, Your Honor. And we do not. We do not think it is properly viewed as a gender-based classification. Virtually every appellate court, State and Federal, with one exception, Hawaii, in a superseded the opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term. And so in the same way that fatherhood is gendered or motherhood is gendered, it’s gendered in that sense.

What Justice Kennedy is saying here is: don’t think of it as gay marriage, it’s same-sex marriage. Discrimination on the basis of sexual orientation isn’t the problem; gender discrimination is.

Wait, what? Aren’t gender discrimination prohibitions designed to protect women in the workplace and the classroom?  Well, yes and no.  Just as the Supreme Court has ruled that some forms of affirmative action constitute racial discrimination against whites, protections against gender discrimination have been extended to men.

If you think this is a ridiculous notion of constitutional law, you will be even more surprised to learn who first advocated for gender discrimination protections to be extended to men.   It was a young ACLU attorney named Ruth Bader Ginsburg. Yes, THAT Ruther Bader Ginsburg, and you better believe she was dancing underneath her robes when she heard Justice Kennedy muse about gender discrimination.

Ruth Bader Ginsburg uewb_05_img0302Most pundits believe Justice Kennedy wants to take a cautious approach that does not push the country too far in any direction. Slate’s Sonja West outlines some of the advantages of this legal framework:

A gender-discrimination ruling on marriage would not, for example, determine how much constitutional protection a person might receive if he was fired from his job because of his sexual orientation. Kennedy could save that case for another day. It also does not give fodder to the slippery-slope argument about polygamy, which presents a problem of numbers and not gender.

Another advantage, at least perhaps in Kennedy’s worldview, is that his opinion need not hinge on a constitutional right to privacy. Kennedy could side-step any icky feelings he might get from wading into privacy rights, which tend to include family-based freedoms like the right of procreation, childrearing, contraception, and abortion.

A gender discrimination approach also closely links the case for same-sex marriage to the case for interracial marriage. When Mildred Jeter married Richard Loving in 1958, a Virginia trial court judge sentenced them to a year in prison. The judge justified the state’s law banning interracial marriage in part by stating, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents…. The fact that he separated the races shows that he did not intend for the races to mix.”

In one of the best-named cases in history, Loving v. Virginia, the U.S. Supreme Court held: “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” One could easily imagine this Court switching a couple of words in that sentence.

The game “What Will Justice Kennedy Do?” is such fun for Washington insiders and academics alike because the answer is almost never clear.  However, I think there is a decent chance that gender discrimination may provide the solution for which he is searching.

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Why Gay Marriage May Hinge on One Footnote

From my blog on the Huffington Post 4/9/13.

During oral argument in the Proposition 8 case last month, Justice Anthony Kennedy said:

I think there’s… substance to the point that sociological information [about gay marriage] is new. Five years of information to weigh against 2,000 years of history or more…[O]n the other hand, there is an immediate legal injury (or… what could be a legal injury), and that’s the voice of these children. 40,000 children in California, according to [a brief in the case], that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

To a lot of people, it may seem downright strange that a Supreme Court justice is asking how social scientists would project the impact of their potential ruling. As a social scientist myself, I find this an interesting phenomenon, of which there is quite a history.

During the Industrial Revolution of the late 19th/early 20th century, state governments (and Congress) became more active in regulating the economy, particularly employer-employee relations. In many instances, the U.S. Supreme Court struck down these laws as a violation of the right of both employees and employers to make economic contracts as they see fit.

State governments would often defend these types of laws — the rights to join a union, maximum work hour laws, minimum wage laws, etc. — on the grounds that they protected the health and safety of workers. In defending a law regulating the number of hours per day that women could work laundries, future Supreme Court justice Louis Brandeis issued a lengthy appendix to his brief detailing the potential hazardous health effects that the Oregon law was attempting to mitigate (as well as highlighting the fragility of women in demeaning terms).


The most famous (or to some legal scholars, infamous) invocation of social science evidence in Supreme Court history was in Brown v. Board of Education, the 1954 case which declared school segregation unconstitutional. In prior cases, the Court had chipped away at the doctrine of “separate, but equal” by striking down segregated law schools and graduate schools where the programs for black students could not be considered materially equal to those of whites.

In order for desegregation to work across the board, the Court needed to argue that separate schools were inherently unequal, even if given identical levels of resources. To make that argument, Chief Justice Earl Warren cited several psychology and sociology studies that presented evidence that segregation, in its many forms, created:

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.^11

Footnote 11. K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int.J.Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

While law professor Michael Heise welcomes the Footnote 11 approach as indicative of the multifaceted and multidisciplinary effect law exerts in our society, it is also important to remember that social science can cut both ways. In prior research, I examined a Kentucky law segregating school — even private schools, such as Berea College, which wanted to be racially integrated. I described the state’s legal argument as:

strikingly similar in its philosophical and legal basis to the famous “Brandeis Brief” submitted to the Court in Muller v. Oregon in that same year. Just as the “Brandeis Brief” disparaged the physical and social potential of women, Kentucky based its arguments on the fundamental inferiority of the African American race. The logical conclusion of this inequality was that the races must be kept separate to prevent racial amalgamation.

To prove its contention of natural and eternal racial differences, Kentucky cited an array of scientific evidence, which Benno Schmidt characterizes as “eugenic pseudoscience” used for an “unabashed exaltation of racism.” At the forefront was a study by Dr. Sanford B. Hunt, a prominent expert in anthropometrics — the study of the physical characteristics of racial groups. Hunt’s analysis of brain weight indicated that an average African American’s brain weighed five ounces less than the brain of an average white person. The brain of an average mulatto weighed even less than the brain of an average African American. In a shocking display of racism, Kentucky argued that this physical difference is “not the result of education, but is innate and God-given; and therein lies the supremacy of the Anglo-Saxon-Caucasian race.”

The Supreme Court refused to strike down this law.

How will social science influence the Court in the gay marriage cases? The American Sociological Association submitted an amicus curiae (or “friend of the Court”) brief outlining the scientific consensus that children raised by same-sex parents “fare just as well as children of opposite-sex parents.” Based on the precedent set by Footnote 11, social science may be a critical factor in this case.

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Why a Gay Marriage Backlash Is Unlikely

From my blog on the Huffington Post 3/29/13.

Now that oral arguments in the two gay marriage cases have concluded, the justices have many different options in both cases, limiting the reach of a potential pro-gay marriage opinion to one state (California), a handful of states, or legalizing gay marriage in all 50 states.

As law professor and Huffington Post contributor Geoffrey Stone has observed, “[t]he general consensus among Court-watchers…” is the Court will strike down Proposition 8 but not extend the right for same-sex couples to wed outside of California.

Few pundits think that the justices will legalize gay marriage across the board, if for no other reason than the Court’s anxiousness over a potential backlash from the public.  The fear is that  “judicial activism,” in which an unrepresentative and unaccountable court strikes down a democratically enacted law, would become an even greater part of the American political lexicon.

The justices are very cognizant of a potential backlash because, as Alexander Hamilton once famously noted, the Court “has no influence over either the sword or the purse.”  In other words, the justices lack the hard power needed to enforce their own decisions.

A backlash from a sweeping gay marriage opinion, this line of reasoning holds, would undermine the Court’s legitimacy.  UCLA Law Professor Adam Winkler expressed these sentiments in a Huffington Post blog entry recently.

In this instance, I believe these fears the justices may hold are misguided.

Many political scientists are skeptical of the ability of litigation to achieve meaningful social change.  Tom Clark has found that the Supreme Court becomes less likely to strike down laws in periods where Congress exhibits greater hostility to the Court.  He was lucky enough to attend oral argument in person yesterday, and he was struck by how uncomfortable the justices seemed of the broader political context of these cases.

Gerald Rosenberg examined the historical record after segregation was ruled unconstitutional in Brown v. Board of Education.  Not only did he find evidence of a significant backlash among Southern politicians but very little evidence that the Court’s opinion persuaded the public or political leaders.

Desegregation did not really start to become a reality until the passage of the 1964 Civil Rights Act, and, according to Rosenberg’s account, the most galvanizing force in convincing Congress to pass that law was the Selma race riots.  Because of the growth in sales of television, many people for the first time saw with their own eyes the violence and hostility African Americans faced in the South.

Having a personal or emotional connection to a political issue is an especially effective means of persuasion. (The presidential campaigns put 1 million ads on the air last year, but political science research indicates face-to-face canvassing is far more effective.)  One reason public opinion has changed so dramatically on gay marriage is because nearly 80 percent of Americans have a relative, close friend, or co-worker who is openly gay, including Chief Justice John Roberts.

When Senator Rob Portman’s son came out as a gay man, the Ohio Republican quickly changed his position in support of same-sex marriage.  Many other Republican leaders submitted an amicus curiae (or friend-of-the-Court) brief in support of gay marriage.  Gay marriage enjoys even stronger support among Democratic leaders, including many moderates.

This support from political leaders, though far from universal, provides the backdrop the Court would need to have a sweeping legalization of gay marriage administered effectively.

The vast majority of Americans trust the Supreme Court to decide questions involving constitutional rights.  And, despite news media portrayals to the contrary, a significant portion of the population does not have strong view on the issue of gay marriage.  These are exactly the type of people who are the most open to persuasion by a strongly worded Supreme Court decision, according to one major school of thought in political science.

Whether the struggle for equal rights for gays and lesbians is strongly analogous to the Civil Rights movement in the last century is a debate I will leave to others.  However, I think the evidence from political science suggests the reaction to legalizing gay marriage will not closely resemble the Massive Resistance movement that followed the Supreme Court’s attempts to desegregate.

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God Save This Honorable Court

From my blog on the Huffington Post 3/25/13.

Yesterday was Palm Sunday, which marked the beginning of Holy Week for Christians. Holy Week celebrates the passion, death, and resurrection of Jesus, culminating this Sunday with Easter.

This particular Holy Week is unique in American history. Tomorrow and Wednesday, the Supreme Court hears oral argument in two gay marriage cases. Also for the first time in American history, the Supreme Court does not include any Protestant justices. This Court consists of six Catholics and three Jews.

Does the current religious makeup of the Supreme Court amount to anything more than the answer to a trivia question? The answer, according to a study I conducted, is yes – to a limited extent.

The study, recently published in Political Research Quarterly, spans every non-unanimous Supreme Court decision from 1953 to 2007 in 11 different legal issues connected to religion. On seven issues, Catholic Supreme Court justices voted differently from Protestant and Jewish justices, even when taking into account underlying differences in each justice’s ideology. Each time a religious difference existed, Catholic justices were more likely to support the position of the Catholic Church.

These legal issues include some, like equality for racial minorities, on which the Catholic Church has embraced a politically liberal position, and others, like abortion, where the Church has taken a politically conservative stance.

It is crucial to understand the context of these findings. While these religious differences in voting are not a statistical fluke, they are also not nearly as powerful in predicting the Court’s decisions as other, more traditional, variables. Thus, I seriously doubt religion is, or ever has been, a conscious consideration of any Supreme Court justice, from any religious tradition. I believe Justice Scalia when he told biographer Joan Biskupic: “I have religious views on the subject [of abortion]. But they have nothing whatsoever to do with my job.”

At the same time, Supreme Court justices are not automatons. Despite Chief Justice Roberts’ insistence to the contrary, judges are not mere umpires who call balls and strikes. The Court rules on difficult legal issues, which have profound moral and social implications. In the past the Supreme Court has ruled on whether police conduct “shocks the conscience.” It is very difficult in these sorts of cases for a judge to check his or her conscience at the courthouse door.

Over the last 50 years, Catholic membership on the Supreme Court has spanned the ideological spectrum, from Justice William Brennan on the left to Justice Clarence Thomas on the right. The middle of the current Court is occupied by Justice Anthony Kennedy, also a Catholic. From 2006-2011, the Supreme Court handed down 116 decisions on a 5-4 vote. Justice Kennedy was in the majority in 94 of those cases, or 81 percent of the time.

Political scientist Frank Colucci’s biography of Justice Kennedy stresses the connection between his judicial views on liberty and the Catholic Church’s commitment to the protection of human dignity. Justice Kennedy has written two important majority opinions in support of gay rights using dignity as a concept.

In Roemer v. Evans, Kennedy viewed a Colorado constitutional amendment that prevented gays from seeking discrimination protection as a disadvantage imposed out of “animosity” to gays. In Lawrence v. Texas, the Supreme Court struck down a state law criminalizing gay sexual conduct. Justice Kennedy began his majority opinion in Lawrence with the following observation: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

Justice Kennedy’s record on abortion, on the other hand, is more conservative. Biographer Colucci describes some of Kennedy’s abortion opinions as containing “paternalistic and moralistic language.” In one abortion case, Justice Kennedy wrote: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child. Whether to have an abortion requires a difficult and painful moral decision…[S]ome women come to regret their choice.”

Which way will Justice Kennedy come down in these two cases? The problem for social scientists is that, while our models predict large trends in human behavior fairly well, it is much more difficult to predict the behavior of one person in only one instance. The questions Justice Kennedy asks at oral arguments this week will provide greater insight into his thoughts on these cases.

As Holy Week continues, I hope my findings will make more Americans aware of how religion shapes a judge’s worldview, in a way similar to a judge’s race, ethnicity, gender, and past life experiences.

However, I hope the next nominee to the Supreme Court is not subject to a senatorial inquisition over his or her faith. Article VI of the Constitution prohibits any religious test as a qualification for holding office in the United States, but we have often fallen short of this ideal. Past Catholic nominees to the Supreme Court have been subjected to humiliating questions about whether their first allegiance would be to the Constitution or papal edict.

America was settled by people seeking freedom to worship in accordance with their consciences, and America was founded by people seeking self-governance in accordance with the Constitution. I believe the justices of the Supreme Court have balanced these sometimes-competing principles commendably.

William D. Blake is a Ph.D. candidate in Government at the University of Texas at Austin and incoming assistant professor of Political Science at Indiana University, Indianapolis (IUPUI). He is the former press secretary of the Interfaith Alliance.

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William Blake in International Bar Assocation

Despite President Obama making all the right noises, American justice is imperilled as the full implications of Citizens United are felt in judicial elections.

Skip Kaltenheuser

President Obama’s well-received inaugural speech hit upon solid themes of equality before the law: ‘… a free market only thrives when there are rules to ensure competition and fair play.’ But the hard-fought gains toward ‘EQUAL JUSTICE UNDER LAW,’ the ideal engraved over the entrance to the Supreme Court building, is imperilled. Federal courts can do mischief – decisions by the conservative Supreme Court majority and the United States Court of Appeals for the District of Columbia Circuit build corporate insulation against class-action and private lawsuits, and whittle away at regulatory reforms. But the peril may be greatest where the legal rubber meets the road for most Americans: the state courts.

While the Supreme Court grabs the media’s spotlight, including speculation on political fallout, it handles hundreds of cases each year. Other Federal courts up the tally, but state courts still handle 95 per cent of the country’s litigation. These courts are where aggrieved consumers who’ve been defrauded by financial institutions seek protection, terribly injured workers seek more than meagre workers compensation, consumers seek some parity in conflicts with corporations like insurance companies that renege on obligations, people whose property or health is impacted by polluters seek redress and those harmed by medical or pharmaceutical negligence seek compensation. State courts are where the little guy seeking justice runs his daunting legal gauntlet against the well heeled.

But the Supreme Court, in its role as final arbiter of the Constitution, can rock the state courts. The Citizens United case, in which Justice Anthony Kennedy wrote ‘independent expenditures do not lead to, or create the appearance of, quid pro quo corruption’, welcomed limitless money, including that riding stealth vehicles. Citizens United received great attention during Presidential and congressional elections. Less noted is its role as an accelerant of alarming trends in judicial elections, both at the state supreme court level and lower courts.

According to the Center for American Progress (CAP), six states that have seen the most cash in judicial elections – Alabama, Texas, Ohio, Pennsylvania, Illinois and Michigan – have supreme courts dominated by pro-corporate judges. In 403 cases from 2000 to 2010 in which individuals sued corporations, those judges ruled for corporations 71 per cent of the time.

United front to control courts

The seamless web of influence includes interplay with state legislatures. Brendan Fischer, counsel at the Center for Media and Democracy, observes that in 2010, the first election after Citizens United, wealthy donors helped Republicans obtain new majorities in state legislatures across the country, and helped far-right governors into office. In return, they adopted much of the agenda of the American Legislative Exchange Council (ALEC), supported by many of the same donors. As laws implementing the ALEC agenda are passed, the gatekeepers against legislative excess are state courts. For example, judges have struck down voter-ID laws as violating state constitutions.

On its website, one can glimpse some ALEC goals, such as state legislatures ‘prohibiting courts from creating new claims (for lawsuits) on their own’. Another is to maintain ‘state sovereignty over environmental protection’, stopping Environmental Protection Agency (EPA) ‘overreach’ in its air and water rules.
Beyond voter laws, state courts are also players in the hyperactive arena of gerrymandering state legislative and US congressional districts. Voter demographics and priorities are changing, diminishing Republican Party attraction for voters.

Now schemes are being hatched in swing states to alter the award of state electoral votes in Presidential contests. The system already essentially disenfranchises voters in solid blue or red states, but these schemes would further thwart popular intent. Such mischief requires controlling courts as well as legislatures.

Justice for sale

William Blake, a doctoral student at the University of Texas, studies the impacts of elections on state supreme courts. He observes that as job security decreases, as in supreme court races that are partisan, justices become both more attuned to public opinion and more polarised on partisan grounds. Blake sees little to refute the findings of Chris Bonneau and Damon Cann, of the political science departments of the University of Pittsburgh and Utah State, respectively. Comparing the 2005 decisions of non-partisan supreme court justices of Nevada with the partisan supreme court justices of Michigan and Texas, Bonneau and Cann didn’t detect quid pro quo exchanges between contributions and decisions in Nevada, but did in Michigan and Texas. Contemplating the chicken or the egg, they concluded contributions drive judicial votes, not the other way around.

But Blake notes that, quid pro quo or not, ‘powerful interests are able to stack state supreme courts with judges who sincerely share their interests.’ He points to a 2001 survey of 2,400 state judges by Justice at Stake that found over a third of state supreme court justices believe campaign contributions influenced judicial decisions; and to a 2007 Justice at Stake poll of business leaders, with 79 per cent believing campaign contributions affect decisions.

A 2011 poll by this group shows 83 per cent of the public believes contributions influence decisions. It’s not hard to imagine a spiral effect from the public’s overwhelming lack of faith in a fair shake from judges. People with legitimate grievances will avoid the financial costs of a court casino.

Money continues to wash away prior spending levels. In 1990, state supreme court candidates raised around $3m total. In 2012, TV ad spending alone reached nearly $30m across 51,000 ads. Studies of state high court elections by university and reform groups, including the Brennan Center for Justice and Justice at Stake, demonstrate the increasing amounts of money coming from non-candidate groups. Forty per cent comes from a handful of national groups and political parties. Such groups fund three-quarters of attack ads. Typically, these ads wildly distort a judge’s rulings or a candidate’s background. The approximate parity of prior elections between the largest groups on the left and the right goes away as financing by business and specific interest groups dominates.

Crippling funding cuts

Increased campaign funding runs contrary to trends of reduced funding for state courts, raising filing fees, cutting staff and salaries and diverting resources from civil trials. New York and California both have huge reductions in funding. California’s Chief Justice Tani Cantil-Sakauye predicts this will be ‘devastating and crippling’ for her state’s ability to dispense justice. Dismissed part-time New York judges now work as volunteers to keep justice in motion.

None of this bodes well for the little guy fighting large companies or banks. Iowa now operates with a smaller workforce than in 1987, but handles double the number of cases. Now aggrieved litigants worry about judicial motivations of financial expediency, and curious rulings that curb prospects for a fair day in court. Add to that the prospect of judges chilled by worries of becoming targets if not thought adequately friendly to business, and their desire for contributions in future contests. Small wonder confidence in the courts is plummeting.

A Center for American Progress (CAP) report by Billy Corriher, updated to consider the 2012 state supreme court races, underscores special interest money swamping campaigns at the supreme court level. An increasing number of races log spending in the millions.

Consider 2012 re-election of North Carolina Supreme Court Justice Paul Newby. According to the CAP study, Newby benefited from more than $2.5m of independent spending. This pushes a state public financing programme that had once been a model for curbing money in judicial races towards irrelevance. As in many elections, the Koch brothers were big players through their SuperPac, Americans for Prosperity, as was the state Chamber of Commerce. In 2009, Newby ruled against tobacco farmers in a dispute with tobacco companies. North Carolina tobacco companies that benefited provided hundreds of thousands of dollars towards Newby’s re-election.

Tobacco’s largess to Newby raises serious doubts as to how well big money and the ideal of justice mix, but consider an upcoming case involving a recent redistricting map. Funnelled through an independent group created to support him, Newby received over a million dollars from the Republican State Leadership Committee, which was keenly involved in the Republican-controlled state legislature’s drafting of the map. A case claiming the map disenfranchises minority voters is before the State court. Despite North Carolina ethics rules, which say that judges should not hear cases where their ‘impartiality might reasonably be questioned’, Newby will hear the redistricting case.

Michigan’s state supreme court is also causing raised eyebrows. Two conservative justices, Stephen Markman and Brian Zahra, received $400,000 of ads paid for by the Michigan Association of Realtors after the justices joined a 2011 opinion easing the path for mortgage companies to foreclose on homeowners. The state Republican Party spent $4.5m on ads for the two, with no disclosure of the sources that contributed that money. On the Democratic side, the state party spent $5m from undisclosed sources on ads supporting three candidates.

It’s difficult to be surprised by much out of the Texas legal system, where judges actually campaign with the promise of upholding more death sentences. The politicisation of criminal law and executing defendants for votes is not a worry in Texas, it’s a done deal.

The ‘hang ‘em high’ reputation enjoyed by much of the Texas judiciary distracts from the flagrant corporate tilt of conservative Republicans who comprise the Texas Supreme Court. According to CAP, Justice Don Willett was easily re-elected, backed by large sums from energy companies and their law firms. In 2007, after oil companies failed to sway the state legislature to protect them from lawsuits by workers, Willett and his colleagues obliged by declaring contract employees such as oil-rig workers cannot sue employers for on-the-job injuries. A year later, in a lawsuit over hydraulic ‘fracking’, Willett ruled against energy company liability for policy reasons, stating common law must accommodate ‘cutting-edge technologies able to extract untold reserves from unconventional fields.’

Independent expenditures are not at all limited to local players. In 2012 Justice Josiah Coleman won a seat on Mississippi’s Supreme Court with a million in independent spending, half of it from the Law Enforcement Alliance of America, which CAP notes has been associated with the NRA and US Chamber of Commerce.

What drives such involvement? One motive is erecting judicial barriers to lawyers seeking theories to get around the Protection of Lawful Commerce in Arms Act, the National Rifle Association-backed liability shield for the gun industry passed by Congress in 2005. State supreme courts have been battlegrounds in past attempts to establish liability, such as variations on negligence. Other industries, including energy, financial and insurance, also seek to undermine their liability.

No quid pro quo endgame in sight

James Nelson, who recently retired from the Montana Supreme Court after 19 years, points to Republican Party of Minnesota vs White, which challenged Minnesota’s prohibition on candidates seeking election from discussing issues that might come before them. ‘The US Supreme Court ruled 5–4 that, though candidates couldn’t promise how they’d vote, they could announce their positions on various issues’, says Nelson. ‘Most state ethics rules then (2002) prohibited that. Now they can say what they’re for or against. That doesn’t have to be a promise for people to figure out how a judge will vote.

Nelson, originally appointed by a Republican governor who chaired George W Bush’s 2004 campaign, is horrified by where the politicisation of the courts is heading. ‘The more parties get directly involved in judicial selection, the more they put people on the bench who are loyal to the party platform – the law be damned.’ Beyond attempts to change the way judges are selected and retained by allowing more political levers, Nelson believes ‘court de-form’ efforts will be made to skew courts with qualification requirements – such as prosecutorial or district judge experience – that move in an ideological direction. Other efforts across the country include creating wacky grounds to impeach judges.

Nelson sees elections becoming so expensive that only the rich can compete – limiting the pool to wealthy business-types or those with similar backing. ‘Politicizing the courts impacts a lawyer’s willingness to be a judge,’ says Nelson. ‘Trying to follow money can be like looking at a Cayman bank account, layer upon layer. Backers don’t like disclosure. I once thought the judiciary was sacrosanct, it isn’t now. Academia won’t be sacrosanct in a few years, nothing is sacrosanct now. This is about the corrupting, corrosive, distortive influence of big money on the courts.’

Someone might mention this to Justice Kennedy.

Skip Kaltenheuser is a freelance journalist and writer, he can be contacted at

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William Blake in the Wall Street Journal

Judges as Umpires, Umpires as Judges

By Christopher Shea

Anyone following the debate over the constitutionality of the Affordable Care Act will have been freshly reminded of the inadequacy of Chief Justice John Roberts’s comparison of Justices to baseball umpires enforcing clear rules, an analogy he famously made during his confirmation hearings. (Whatever you might say about Commerce Clause jurisprudence, it isn’t characterized by black-letter law, free from the need of human interpretation.) But in a new article in PS: Political Science & Politics, William Blake, a Ph.D. candidate in government at the University of Texas at Austin,* suggests that Chief Justice Roberts  oversimplified not just the law, in his famous analogy, but also baseball. Baseball umpires, too, Blake argues, must sometimes “make law” in the absence of clear guidance.

Like the Constitution, baseball’s rule’s contain contradictions. The problems begin right away: Rule 1.01 states that “Baseball is a game between two teams of nine players each.” So what to make of the designated hitter, a tenth player? Purists who have always claimed the designated hitter is a monstrosity are not unlike devotees of the Constitution in Exile, waiting for clear-minded justices to nullify the New Deal. And they have even clearer textual evidence!

The check-swing rule is a well-known part of the game: If a batter offers at the ball, even if he tries to hold back at the last second, it’s a strike. The usual interpretation involves “breaking the plane of home plate,” but Blake points out that this is a tradition that developed over time, not a literal rule. The definition of a check swing, he observes, “is entirely extratextual.”

Set aside the moving target that is the strike zone. (“I know it when I see it,” the Mets pitcher Ron Darling once said, tellingly echoing Justice Potter Stewart on pornography.) Unusual stadiums, like domes, requires special ground rules (is it a home run if you hit a roof beam?) The managers of the two teams are supposed to agree on these rules, but if they can’t agree the umpire can set them himself.

Quick pitches are illegal if they are made with the “obvious intent to catch a batter off balance.” Guess who has to divine such intent? The infield-fly rule should only be invoked when an infielder can catch the ball with “ordinary effort.” In deciding whether this standard is met, umpires are to consider “the effort that a fielder of average skill at a position in that league or classification of leagues should exhibit on a play, with due consideration given to the condition of the field and weather conditions.” Which is not much more clear-cut than a judge trying to decide whether police conduct “shocks the conscience,” something legal umpires are called upon to do. (Ditto calling a game on account of “unsuitable” weather conditions.)

Finally, there’s a baseball rule that at least some Justices would dearly love to have in their arsenal: “Each umpire has authority to rule on any point not specifically covered in these rules.” When the 1989 World Series resumed, after a delay caused by the Bay Area Earthquake, Blake notes,  the umpires decreed that if a tremor struck while a ball was in play, altering its course, that would be considered the moral equivalent of a bad hop.

That’s a clear case of umpires making up the rules — something the Chief Justice said they never do. However, Blake writes,

This does not mean that umpires are or should be partisan. When umpires have to fill in gaps in the rules, they should do so with an eye on the good of the game, not as a way of supporting one team over another.

*As well as, his author bio notes, “a member of the Central Texas Umpire Association.”

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