Big Little Truths About the 2018-19 Supreme Court Term

Posted in: Constitutional Law

As is typical, the Supreme Court this year delivered some of its biggest rulings at the end of the term. While reliable assessments of the Court’s work product that wound down last week will require considerable time in the coming months spent carefully reading, rereading, analyzing, and discussing with other analysts all the opinions of all of the justices, it is never too early to begin collecting thoughts, reactions, and impressions. To that end, in the space below I offer three observations about what the Court has been up to of late.

Intent Takes Center Stage

Perhaps the most important recurring theme this term (it carries over from last term and seems, based on current indications, likely to continue next term) involves the question of improper government motive. The Court has been increasingly if not regularly asked to invalidate government decisions on account of allegedly improper governmental purposes or objectives behind the decisions, even if those decisions could be permissible if made for different reasons. For example, in Department of Commerce v. New York, this year’s challenge to the federal government’s proposed inclusion of a so-called citizenship question in the decennial census, the meaty legal argument was not that the federal government may never ask about citizenship in conducting a census. Although some litigants and justices may have asserted that position, it is a hard one to sustain, given that some form of a citizenship question has appeared in the census for so much of American history, and given that section 2 of the Fourteenth Amendment—an underappreciated provision allowing Congress to punish states that improperly limit the franchise—presupposes that Congress can know how many citizens live in each state. The more vexing claim is whether, this time around, there is sufficient evidence of partisan or, worse still, racial motivation on the part of the key administration officials who sought to add this year’s proposed question in its particular form. Similarly, the challenge to excessively partisan gerrymandering in Rucho v. Common Cause focused not just on where the district lines were drawn, but on the discernable legislative motive behind the line drawing. So too, in Flowers v. Mississippi, the challenge to the use of peremptory challenges in a murder trial focused on the alleged racial mindset of the prosecutor exercising the peremptory strikes. And the question of improper religious intent was taken up by the Court in the case involving the public display of a Latin cross that started out as a World War I memorial. In this connection, think back to 2018’s Colorado same-sex-wedding baker case; there the Court ruled in favor of the baker not because he necessarily had an entitlement to be free from Colorado’s antidiscrimination law, but because the Colorado authorities harbored a religious bias against him as they enforced state law. And, also in 2018, consider the biggest headline grabber, the so-called “Travel Ban” case: there is no doubt that the executive branch can, as a general matter, subject people who come to the U.S. from different countries to different levels of security screening; the issue was whether the federal government’s actions were motivated in this instance by hostility to Muslims.

When we pull the focus back even wider to include the biggest legal (though non-judicial) news story of the year—the completion of Robert Mueller’s report on Russian interference with the 2016 election—we see the abiding relevance of impermissible intent. It is not inherently problematic (constitutionally or legally speaking) for a President to take a firm, even dominant, hand in overseeing, limiting, or, for that matter, terminating federal criminal investigations; if President Trump had terminated any DOJ investigation of Hillary Clinton that was still ongoing when he took office in the name of national healing, no one would think that improper. But if the motive for presidential involvement is corrupt (protecting the President himself or his friends or family from financial or criminal liability), then discussion of obstruction of justice and impeachment becomes a lot more plausible.

Moving back to the judicial arena, I think it fair to say the Court has not fully figured out how to resolve claims of impermissible motive. Historically, when challenging actions of Congress or the President (as opposed to state executive officials like prosecutors or civil enforcement officers), a plaintiff has a very high bar to surmount, and that remains the case today. It is one thing to find a Mississippi prosecutor’s peremptory challenges, or the Colorado Civil Rights commission’s enforcement decisions, to be based on prejudice; it is another to halt actions of a coordinate federal branch on the ground of an evil intent. So, even taking account of the rejection (for now) of the Commerce Department’s efforts to include the citizenship question in the census on statutory Administrative-Procedure-Act-process-flaw grounds, I cannot think of a single case—not one—in the modern era in which the Supreme Court has held unconstitutional a congressional or presidential action on the ground that it was permissible except for its invidious motivation. But social media and the current political climate—to say nothing of the unorthodox decision-making and communication styles of the current White House occupant—have certainly confronted the Court with unprecedented potential sources of proof and complexities of interpretation and causation as the Court processes intent-based claims. So past performance is not a guarantee of future results.

Concerns Over Broad Congressional Delegation to the Executive Branch Grow

One interesting case this term—Gundy v. United States—flew under the radar perhaps because it was decided narrowly; the Court upheld the discretion enjoyed by the U.S. Attorney General under the Sexual Offender Registration and Notification Act (SORNA) by hemming that discretion in through resort to SORNA’s overall structure and goals. But, importantly, four of the eight justices participating (Justice Kavanaugh took no part in consideration of the case) expressed a willingness to revisit the Court’s eight-decades-long disinclination to meaningfully assess whether Congress sometimes impermissibly delegates its legislative powers to the executive branch by creating executive authority to make fundamental policy choices on which Congress has completely punted. To be sure, these four justices haven’t yet laid out clearly how they would fashion a comprehensive test that workably differentiates permissible, interstitial power exercised by the President under a statute from legislative power that the President is wrongly exercising on his own. But the willingness of 4 (and maybe 5) justices to look at the question with fresh eyes is big news.

It is interesting that the so-called non-delegation doctrine (the notion that Article I of the Constitution forbids Congress from giving away its legislative powers) was discussed in another case this term as well, this one touching on Congress’s occasional practice of incorporating, as federal law, the laws of each state to be applied in so-called federal enclaves (federal properties located wholly within states). When Congress says: “federal law on these federal lands shall be the same as the law of the state that surrounds the federal property, even as that state law may change over time,” there emerges a significant non-delegation problem: Congress isn’t making any fundamental policy choices about the content of the federal law to be applied on these federal properties going forward—it is simply empowering the surrounding states to make such decisions.

In this in-futuro-federal-incorporation-of-state-law arena, past Court cases (mentioned this term with seeming approval) have deflected the non-delegation issue on the ground that Congress can undo what a state does if Congress so decides. This is true, and it highlights an underappreciated aspect of the non-delegation theory: the concern underlying the non-delegation instinct is not that power ought never to be delegated, but that power ought never be delegated in a way it can’t be retrieved by the delegator. (This is why, even though Article II vests executive power in the President just as Article I vests legislative power in Congress, no one ever questions the very broad delegations the President confers upon other executive branch officials; the President is always free to countermand what lower executive officials do and withdraw the delegated power.) But this answer to justify broad delegations to states does not work for delegations to the President, because subsequent congressional efforts to countermand the President’s decisions or withdraw the power could be met with a presidential veto; power that took a simple majority of Congress to create may require a two-thirds majority of both houses to withdraw. (This is even clearer in light of the Court’s correct decision in INS v. Chadha.) The fact that the President wears two hats (he exercises delegated power and has a big say, via his veto power, in congressional attempts to reclaim that power) makes delegations to the President much more dangerous than delegations to state legislatures who, since the Seventeenth Amendment at least, have not had a say over congressional efforts to reclaim the delegated power.

The Meaning of and Theory Underlying Stare Decisis is a Source of Much, and Growing, Tension

As I wrote in a column a few months ago, the liberal wing of the Court in particular is increasingly accusing the majority of improperly overruling established constitutional holdings insofar as there is no “special justification” for abandoning the earlier cases. Very late in the term, in the Knick v. Township of Scott case (involving procedures to challenge alleged takings by government without just compensation), Justice Kagan for herself and three others made explicit what was suggested in past dissents—their view that even if a past decision construing the Constitution is very wrong, and even if no persons or institutions in particular have relied on that decision in to their detriment, a “special justification” (such as a change in the understanding of the underlying facts) for fixing the mistake is nonetheless needed because any overruling by the Court undermines society’s faith in the rule of law. As I have written before, I think this argument is pretty weak. Judicial review is about fidelity to the Constitution, not the U.S. Reports. That is why the Court was right, for example, in Lawrence v. Texas to overrule Bowers v. Hardwick, even though there was no “special justification” for fixing that constitutional mistake. Indeed, leaving in place constitutional rulings that, like Bowers, are acknowledged to be mistakes, when no reliance interests are present, itself visits tremendous harm to the Court’s credibility. And overruling a few cases per year (often in important but technical areas) will not in my view risk creating Thunderdome. Indeed, the Court seems willing to rebuff its own past rulings about as frequently as it is willing to rebuff as unconstitutional the work-product of Congress, a coincidence that helpfully diffuses the perception that the Court affords itself more respect than it pays to its co-equal branches.

And speaking of a healthy (dis)respect for dubious past writings of the justices, the Chief Justice’s opinion in the 5-4 partisan gerrymandering Rucho case helpfully pulled back from some unconvincing positions that had been advanced in earlier cases. While many observers are very disappointed that the Court in Rucho held partisan gerrymandering to be a non-justiciable political question, they should take some heart in the majority’s observation that states have been taking (and thus, the implication is, are free to take) the job of districting away from elected legislators and give it to independent districting commissions, and also that states have been regulating (and, again, the implication is, are free to regulate) excessive partisan districting zeal under state law, vindicable in state court. As to the former, the Chief Justice’s opinion in Rucho rightly, albeit implicitly, backs away from his loud dissent for himself and three others in Arizona State Legislature v. Arizona Independent Redistricting Commission, and makes it very hard to reverse that (correct) decision down the road, insofar as the Court is now encouraging states to rely on what it upheld. That is an important development given that Justice Anthony Kennedy was part of the five-vote majority in the Arizona case, and no knew what Justice Brett Kavanaugh’s joining the Court would mean for that case. As to the latter, although I don’t think state courts can easily invoke federal principles to regulate partisan gerrymandering without risking having their rulings vacated by a U.S. Supreme Court that thinks such claims should not be litigated in the name of the U.S. Constitution, state courts seemingly are free to interpret state constitutions and statutes in such a way to as to rein in excessive partisan zeal (even in congressional-district-line-drawing), and to feel comfortable that the U.S. Supreme Court will not find such cases to raise federal questions that it can then review. Such a development builds on the Court’s decision not to try to step in to review the Pennsylvania Supreme Court’s partisan gerrymandering ruling last year, and implicitly cuts back on one of the Court’s most contentious, if not dubious, rulings, Bush v. Gore.