Author: Gerard Magliocca


Some Thoughts on the Gorsuch Hearings

We know a few things about Judge Gorsuch’s nomination to the Supreme Court.  First, he will be confirmed. Second, Senate Democrats will mention Merrick Garland’s name many times.  Third, I think we will learn a lot about Chevron deference, given that Judge Gorsuch has taken a stand on the viability of that precedent and that there is growing academic criticism of Chevron. (A new article in the Yale Law Journal, for instance.)

Some people complain that confirmation hearings for the Court aren’t revealing.  I think that this observation is overstated, but to the extent that it is true it’s a result of a structural reality.  Not since Justice Thomas was confirmed in 1991 has a Supreme Court confirmation hearing occurred where the President and the Senate were controlled by different political parties. If Democrats controlled the Senate, then Judge Gorsuch (or whomever was nominated), would simply have to answer more questions in order to get confirmed. When the President’s party controls the Senate, by contrast, a nominee can skate through pretty easily.


The March on Washington and Section 2 of the Fourteenth Amendment

One thing I’m learning in my research into the constitutionality of the reapportionment process is that there was some interest in this issue during the early 1960s. My colleague Florence Roisman, an expert on the Civil Rights Movement, pointed out to me that the 1963 March on Washington, capped by the “I Have a Dream” Speech, listed ten civil rights demands. Here was Demand #4:

“Enforcement of the Fourteenth Amendment–reducing Congressional representation of states where citizens are disfranchised.”

This, of course, was about Section Two of the Fourteenth Amendment.  Next I’m going to go through all of the other speeches given that day to see what was said about Section Two.



Justice Scalia’s Papers Given to Harvard Law School

Since this is a topic that I’ve posted about before, I wanted to note that Justice Scalia’s family announced yesterday that his papers will be given to Harvard Law School.  None of his Supreme Court papers will be opened until all of the colleagues that he served with have died, so it will be some time before anything significant becomes available.


The House of Truth and Justice Holmes

I just finished Brad Snyder’s fascinating new book on “The House of Truth.” The book is about the men who lived or visited this house near Dupont Circle in Washington DC during the 1910s, most notably Justice Oliver Wendell Holmes, Felix Frankfurter, Walter Lippmann, and Gutzon Borglum (the sculptor of Mount Rushmore). There is a lot to chew over, both in terms of how Snyder traces the evolution of progressive thought, the personalities involved, and the events swirling about them.

My strongest impression from the book, though, is that it changes my view on Holmes somewhat.  I’ve always had a negative opinion of him, in part because of Buck v. Bell, but also because of his broad pronouncements about the virtues of majoritarianism. Brilliant guy, great writer, but not a person whose legal values were worth emulating. True, he wrote some excellent dissents in First Amendment cases, but I thought of that as the exception rather than the rule.

Why do I feel differently?  Snyder points out that Holmes did more than any other Justice of the time on behalf of African-American rights.  (Perhaps a more precise way of putting this is that the post-1919 more-liberal Holmes did.) Moore v. Dempsey, a 1923 case written by Holmes, was the first Supreme Court decision that ordered a lower federal court to reexamine (though habeas) a state trial that convicted several African-American defendants.  The Court held that there were serious questions raised about whether the petitioners got a trial at all.  Holmes also commented, in an order rejecting the plea of Sacco and Vanzetti for Supreme Court review, that what they got (as flawed as it was) was far more than what many African-Americans were getting.

I want to give this more more thought, but then again that’s what quality books do.


Hibernation Time

Today I got the tap on the shoulder from my publisher saying that the clock has started to run for the next round of edits on my Bill of Rights book.  So I’ll be posting less frequently for the next month or so.


The Ninth Census and the Fourteenth Amendment

In prior posts I’ve outlined part of my argument that the laws regulating the apportionment of representatives among the states violate Section Two of the Fourteenth Amendment.  Before getting back to explaining that analysis and some of my research, I thought I’d discuss this fun find.

The first census conducted after the Fourteenth Amendment was ratified was run in 1870 by the Department of the Interior. In the instructions given to the census takers, they were asked to count the number of men who were citizens and over the age of 21 who were unable to vote pursuant to the language of Section Two. Here was the explanation given in those instructions:

Many persons never try to vote, and therefore do not know whether their right to vote is not abridged. It is not only those whose votes have actually been challenged, and refused at the polls for some disability or want of qualification, who must be reported . . . but all who come within the scope of any State law denying or abridging suffrage to any class or individual on any other ground than participation in rebellion, or legal conviction of crime. Assistant Marshals, therefore, will be required carefully to study the laws or their own States in these respects, and to satisfy themselves, in the case of each male citizen of the United States above the age of twenty-one years, whether he does or does not come within one of these classes.


Section Two and the Political Question Doctrine

Let’s assume I can convince you (which I haven’t yet) that the federal apportionment statutes are unconstitutional because they ignore Section Two of the Fourteenth Amendment. Still, is that a political question that is not justiciable? If so, then my next paper won’t be of much practical value.  I think, though, that Section Two does not present a political question even though there are three or four lower federal court opinions (all more than fifty years old) saying that it does.

First, the only Supreme Court case where a Section Two claim was presented rejected that claim on the merits.  In McPherson v. Blacker, the Court held that state legislatures have broad authority to determine the method used to choose presidential electors. One of the issues that was addressed was whether Section Two of the Fourteenth Amendment limited that power directly, and the Court said no.  (So did the Michigan Supreme Court in the decision below.) There was no suggestion that Section Two raised a political question.  As a result, the subsequent lower court decisions that went the other way (none of which cite Blacker) are, in my view, just wrong on this point.

Second, these lower court decisions all predate Baker v. Carr (which reformulated the political question doctrine) and all involved Section Two in a collateral way that is distinguishable from the kind of challenge that I am contemplating.  In one Second Circuit decision, a man convicted for refusing to answer census questions argued that the census was unconstitutional because it did not ask questions about voting eligibility pursuant to Section Two.  The Court affirmed the conviction saying that Section Two presented a political question, but another way of looking at the case was that the entire census is not invalid (and the duty to respond is not erased) no matter what you think of Section Two.  In a D.C. Circuit case, a man convicted of failing to respond to a subpoena from the House of Representatives argued that the subpoena was invalid because that Congress was not elected consistent with Section Two. The Court rejected that with a political question argument, but on the merits that claim was very weak (what about every statute enacted by that Congress–was that also invalid?) And in a Fourth Circuit case, a man who was not allowed to run for Congress in Virginia argued that the state was not entitled to the number of representatives because of its poll tax.  Once again, this was called a political question, but on the merits no court was going to take this seriously at a time when the poll tax was adjudged constitutional (in 1945).

Third, there is a big difference between saying that something is not justiciable and that there should just be significant deference given by courts on the merits.  My view is that Congress cannot bar consideration of Section Two of the Fourteenth Amendment as it currently does. Once some consideration is permitted, though, then exactly how that is done or what standards are used rest within Congress’s discretion with few exceptions.  The Court has ruled on other cases involving the apportionment process for the House of Representatives and deferred to what Congress did–the same would probably be true here.

Tomorrow I’ll go back to the statutes are try to tie this together.

UPDATE:  Now I’m not so sure that the McPherson part of this post is correct.  The better reading may be that no Section Two claim was presented in that case.  I need to obtain the briefs, which will take some time.


Section Two of the Fourteenth Amendment and the Census

My research into the reapportionment process is still ongoing, and I’ve been working through the following problem:  Is the Commerce Department’s failure to undertake a Section Two review as part of its reapportionment duty unlawful or is it the result of an unconstitutional statute?

One way of thinking about the issue is that Congress delegated its Section Two authority to the Commerce Department in the relevant statutes, but the Department has refused to exercise that power and perform its designated function. Here is the most straightforward argument on that score–2 U.S.C. Section 6 provides:

Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for participation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State

This statute was enacted by Congress in 1872 and closely follows the language of Section Two. Since the Commerce Department has never tried to apply this provision or examined whether it should be applied, perhaps the answer is that the Department is just not following the statute.

But this analysis is not so straightforward. There is a strong case that 2 U.S.C. Section 6 is unconstitutional because of its use of the word “male.” Though this is what Section Two says, a statute that says makes an explicit distinction based on sex must satisfy heightened scrutiny under the Equal Protection Clause. 2 U.S.C. Section 6 cannot meet the standard, especially given that the choice of the word male in the Fourteenth Amendment rested in large part on the fact that no state allowed women to vote. Thus, the Commerce Department is probably right in declining to enforce this law or collect “male-only data” out of concern that they would be acting unconstitutionally.

What about the other statutes that govern reapportionment? More on that next week.


Some Thoughts on Judge Gorsuch’s Nomination

A colleague of mine once said that in the first half of your career you are trying to figure out what is right. In the second half, you are trying to convince everyone that you are right. I guess I’m still in the first stage, and in that spirit I want to make some observations about Judge Gorsuch. (For the record, I think that he should be confirmed by the Senate.)

First, I think that his nomination shows that originalism is alive and well.  After Justice Scalia died, some people (like Eric Posner) declared that philosophy dead on the assumption that nobody else who cared about interpreting the Constitution in that way would be confirmed. He was wrong. The elevation of Judge Gorsuch does not make the Court an originalist institution, of course, but there could be more Trump appointments in the coming years–you never know.

Second, administrative law is poised for some major changes.  Over on Balkinization they just held an online Symposium in Adrian Vermeule’s new book Law’s Abnegation, which states as its central thesis:

Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.

In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action.

As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.

So this confident argument does not look so convincing now.  Judge Gorsuch has openly called for Chevron to be cut back or overruled, and he’s not the only one on the Court who feels that way.  Are there five votes to gut Chevron once he is confirmed?  I doubt it, but who knows.

One way of thinking about these two points is that a little intellectual humility goes a long way. The other is that when everybody says buy, it’s probably time to sell.