Author: Gerard Magliocca

6

Vergara and the Future of Liberal Constitutionalism

The other day the California Supreme Court decided not to grant review in Vergara v. California, which raised the issue of whether state law regarding teaching tenure violates the equal protection rights of students (basically, by irrationally allowing bad teachers to stay employed). The Court was divided 4-3, with Justices Goodwin Liu and Mariano-Florentino Cuellar dissenting and urging that the case be heard.  [Disclosure: Justice Liu was my law school classmate.]

I think that the dissenting position in this case represents the future of liberal constitutional thought, keeping in mind that there was no decision on the merits in Vergara. What I mean is that liberals in the academy and on the courts are probably going to start taking more seriously the idea that the Constitution confers positive rights or requires a more compelling state justification for policies that lead to unequal outcomes in the distribution of those benefits by legislation. When I say the future, I mean a decade from now. Merrick Garland and Steven Breyer are the archetypal legal process liberals who will not be terribly interested in such claims, but the next generation will probably have greater faith in the judicial capacity to address these problems.

Whether this is a good idea is another matter.  We’ll cross the bridge when it comes.

2

The Next Supreme Court Term

We are within six weeks of the start of the Court’s next Term, which promises to be two terms in one.  The first will consist of eight Justices.  The second will consist of nine, though when and by whom is unclear.

This leads me to wonder if next year the Court will have to forego its traditional custom of issuing all of its merits opinions by the end of June.  If there are deadlocks in cases in the first portion of the Term, presumably those cases will be held over for another argument in the second portion. If there are several of those (or if the new Justice is not confirmed until later in the Spring), can the Court finish its business by the end of June?  Seems doubtful.

It’s worth noting that Judge Merrick Garland is currently on one of the world’s longest paid vacations, as he must by tradition be recused from all cases so long as his nomination is pending.  I wonder what he does all day.

1

Law and the Modern Mind–Unanswerable Questions

I am honored to comment on Susanna Blumenthal’s new book. One of the many benefits of reading Law and the Modern Mind is that it offers a window into a range of common law topics from the nineteenth century, including contracts, torts, criminal law, and trusts and estates. The sheer breath of Blumenthal’s research is astounding, especially as she delves into the philosophy and psychology behind the presumption of rationality.

The book looks at how lawyers, judges, and scholars tried to craft exceptions to the presumption. One theme that really stood out for me is how society often struggles to reconcile unusual beliefs with rational behavior.  In effect, someone who has an idiosyncratic view (say, leaving all of their wealth to the family cat) can get characterized as irrational as a way of justifying a rejection of the choice that they rationally made.  Thus, the inquiry into rationality is sometimes a judicial tool for regulating behavior rather than a genuine inquiry into a person’s mental state. (There are lots of examples of this in the book.)

Even when the search into another’s mind is genuine, though, Blumenthal’s examination shows how difficult that task is. For criminal law in particular, the problem was identified in Ancient Greece. Can a rational person knowingly commit an evil act? Don’t people who do something evil think that they are doing good? Ron Rosebaum’s extraordinary book on Explaining Hitler argues that this claim can be made about Hitler himself, as as times he seemed to think he was helping humanity by killing Jews. The law faces this sort of dilemma from time to time when someone does something particular vicious. Must a person be insane if they, say, shoot up a school?  Why would a rational person do that? Or is it just too awful to admit that rational people would do that?

Blumenthal’s fascinating case studies provide lots of food for thought, but it’s not as if the twentieth or twenty-first centuries have solved these problems.  John Hinckley’s attempt to kill President Reagan in 1981 led to a verdict of “not guilty by reason of insanity.” (Blumenthal mentions that Charles Guiteau, who assassinated James Garfield in 1881, made a similar unsuccessful claim at his trial.)  Perhaps this was the correct assessment of Hinckley’s mental state then (recently he was released to the custody of his parents) or maybe it just struck people as too ridiculous to think that a rational person would shoot a president to impress an actress. (Though that seems less implausible now than it probably did then.)

This is a tour de force on a very challenging subject. I look forward to the rest of the Symposium.

 

1

Secret Service Investigations of Presidential Threats

Donald Trump’s recent comments about “Second Amendment people” raises an issue that I’ve wondered about for a long time. What standard does the Secret Service use in determining whether its agents need to contact someone who makes a threat against the President or a presidential candidate?  And what does the Secret Service do when they contact someone like that?

I ask these questions because there is a chilling quality to such a visit on political speech. Now the Secret Service does not visit every person who makes a crazy comment, as they lack the resources for that and correctly conclude that the vast majority of those statements are harmless. But are there written guidelines that help them assess this?  If so, what are they? And would there be a First Amendment claim, say against individual Secret Service agents, if someone felt that they were being unfairly targeted or harassed for things that they said?

7

Representing the Bill of Rights During the Cold War

Bill_of_Rights_1966_U.S._stamp.1Building on my prior post, I want to highlight this image. It is a stamp that was issued in 1966-67 to mark the 175th anniversary of the ratification of the Bill of Rights. The design was by Herb Block, the longtime political cartoonist for The Washington Post, and was called “Freedom Checking Tyranny.” The mailed fist on the opposite side of the open hand is meant to evoke totalitarianism, which at the time was widely understood as communism.

I also find it amusing that the quote on the stamp is not in the Bill of Rights (and, as far as I know, does not come from any famous speech or Supreme Court opinion).

2

The Future of the Supreme Court

Every four years the tired claim is trotted out that the winner of the presidential election could appoint three or four Justices. In fact, no President has appointed this many Justices in a single term since Richard Nixon, but this may be the year where hyperbole is true.

We know that there is one vacant seat on the Court, but consider what might happen if Hillary Clinton is elected.  Justices Ginsburg and Breyer would have to doubt seriously that the Democrats would win a fourth consecutive term in the White House, something that last occurred in the 1940s. Thus, they would have a strong incentive to retire in the next few years rather than wait until 2020 or beyond.  That would create a total of three vacancies without including any unexpected change (say, if Justice Kennedy also decides to retire). Of course, Breyer and Ginsburg could decide to go with the example of Justice Stevens and stay until they are 90 years old, but that is unlikely.

Note that if Ginsburg and Breyer retire (say over the next two years), that would make Justice Sotomayor the senior member of the liberal bloc–a rather amazing development for someone who joined the Court only seven years ago.

0

The Bill of Rights and the Cold War

I’ve been hard at work on my Bill of Rights book (three chapters to go), which explains my recent absence here.  I’ll have more posts coming up shortly, but I did want to mention one part of my ongoing research.

The final chapter of the book is about the Bill of Rights and the Cold War. In a symbolic sense, that connection can be seen in the fact that the original Declaration of Independence, Constitution, and an original parchment of the proposal from the First Congress that became our Bill of Rights were all descend each night into a vault that was designed to survive a nuclear bomb. More interesting, though, is that the party platforms that invoked the Bill of Rights after the Second World War almost always did so in the context of fighting communism.  For instance:

The 1956 GOP Platform: “We hold that the major world issue today is whether Government shall be the servant or the master of men. We hold that the Bill of Rights is the sacred foundation of personal liberty. That men are created equal needs no affirmation, but they must have equality of opportunity and protection of their civil rights under the law.”

The 1960 Democratic Platform: “With democratic values threatened today by Communist tyranny, we reaffirm our dedication to the Bill of Rights. Freedom and civil liberties, far from being incompatible with security, are vital to our national strength.”

I’ll have some more on this as the chapter gets written.

4

Innovations in the Law

I’ve just finished reading Robert J. Gordon’s excellent book on The Rise and Fall of American Growth.  Gordon’s thesis is that economic growth has slowed in recent decades because the pace of technological innovation has slowed from the 1870-1970 period.  In essence, his claim is that great inventions of the past (electricity, indoor plumbing, the car, antibiotics) were much more crucial to raising our standard of living than the more recent improvements of the Information Age.

This got me thinking about a related question in law.  To what extent has the pace of legal innovation slowed in recent decades?  In other words, most of the big ideas in law are quite old (judicial review, patents, administrative agencies to name just three).  What was the last big idea that changed legal thought or practice?  Originalism comes to mind, but that dates to the 1970s.  What else is there?

0

The Indiana Governor’s Race

Now that Mike Pence is officially Donald Trump’s choice to be Vice-President, Indiana Republicans need to nominate someone else to run for Governor this Fall. I thought I would say something about the three prospects, as I know something about two of them. (One is the Lt. Governor, whom I do not know.)

First there is Congressman Todd Rokita, who is currently my representative in the House.  Congressman Rokita is an alumnus of the law school where I teach, though I did not know him in school.  What I can say, though, is that he’s a dunce who would be unable to serve effectively as Governor. He once called the Affordable Care Act the worst law in American history, evidently deciding that the Fugitive Slave Act was not as bad.  Enough said.

Congresswoman Susan Brooks is also a McKinney Law School alum, and I’ve had the pleasure of meeting her several times.  She’d be a terrific Governor, and I hope the GOP picks her.  She’s smart, practical, and good at building coalitions.

I should add, in the interests of full disclosure, that I gave money to the campaign of the Democratic candidate for Governor, John Gregg, who is also an alum of the law school.  If Brooks is picked I’ll vote for her.  If it’s Rokita or the Lt. Governor I’ll vote for Gregg.