Category Archives: Huffington Post

August 25, 2013 · 7:18 PM

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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June 18, 2013 · 7:54 AM

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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May 3, 2013 · 10:08 AM

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).

2013-04-08-Brandeis.jpg

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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May 3, 2013 · 10:05 AM

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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May 3, 2013 · 10:04 AM

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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