Unlike the larger legal and political science communities, the Roberts Court does not appear to treat the safeguards of the Bill of Rights for criminal prosecutions as important protections for democratic government. The Court leaves Americans dependent on the good will and intelligence of public officials, even in cases where it is clearly lacking.
Some cases on the Court’s docket are about the deliberate misuse of the criminal justice process to put and keep people in prison regardless of their innocence. The California Supreme Court described Thomas Goldstein in 1979 as “an engineering student and Marine Corps veteran with no criminal history.”1 But in 1980 he was convicted of a murder he did not commit, largely based on the testimony of a jailhouse informant after Goldstein was arrested. He was released in 2004, when his innocence became clear, after spending nearly a quarter century in prison.
Goldstein’s attorneys explained: “[The] informant falsely testified that Mr. Goldstein confessed the crime to him and falsely swore that the District Attorney’s Office had promised him nothing in return for his testimony. The trial deputy [district attorney] did not know, and therefore could not disclose to the defense, that this was a lie.”2 Petitioners John Van de Kamp and Curt Livesay ran the district attorney’s office, and vetoed collecting any information about what favors informants received from his office for providing incriminating testimony. Because there was no file or database to check, deputies rarely knew about promises to informants made by others in the office. In Goldstein’s case, the deputy apparently did not know what had happened before he received the file. Goldstein was convicted on the testimony of a jailhouse informant named Eddie Fink. The U.S. Supreme Court commented that Fink “had previously received reduced sentences for providing prosecutors with favorable testimony in other cases” so it was reasonable to infer that he was trying to get similarly favorable treatment for testifying against Goldstein.3 In Goldstein’s case, the district attorney’s office promised “to slash Fink’s sentence on a pending theft charge from 16 months to less than two months” in return for his testimony.4
Deals with witnesses work like bribes.5 Prosecutors promise to drop charges in other cases, urge judges to release or reduce a witness’s jail time, or give him or her other forms of leniency.6 Those are powerful inducements to testify. Such promises affect witnesses’ credibility and their motives to testify to please the prosecutor. Long before Goldstein was arrested, the U.S. Supreme Court decided in Brady v. Maryland that the prosecutor had to give the defense counsel that information, and, in Giglio v. United States, that the office had to turn the information over even though the prosecutor handling the trial did not know what the witness had been promised.7 It would have helped the defense counsel and the jury evaluate whether the witness lied. Failure to disclose the promises to Fink clearly violated those and other U.S. Supreme Court rulings to turn over exculpatory information, specifically including deals with prosecution witnesses.
The story gets worse. A scandal broke a decade after Goldstein’s trial and a grand jury investigated the prosecutor’s office’s handling of jailhouse informants. In its 1990 report the grand jury found that the “Los Angeles County District Attorney’s Office failed to fulfill the ethical responsibilities required of a public prosecutor by its deliberate and informed declination to take the action necessary to curtail the misuse of jail house informant testimony.”8 The report detailed how jailhouse informants fabricate confessions from people the authorities were interested in prosecuting, often with official help in creating the confessions they claimed to have heard.9 Although the Supreme Court did not mention it, Goldstein’s counsel informed the Court that the grand jury report found the abuse of jailhouse informant testimony “began well before Mr. Goldstein’s arrest . . . and continued over the course of the ensuing decade.”10 The report examined at length the decision of the district attorney’s office not to keep records on the testimony and the promises made to jailhouse informants. One reason they decided not to keep those records was precisely that they would have to turn the information over to defense counsel. The report identified both their constitutional and moral duty to provide that information, so that defense counsel and juries could evaluate the witnesses’ truthfulness. But the district attorney’s office declined.11
Based on the prosecutors’ deliberate efforts to prevent defense counsel from getting the information that they were entitled to and that the jury should have seen, counsel sought damages for Goldstein’s twenty-four years in prison. The case came to the U.S. Supreme Court as Van de Kamp v. Goldstein.12
The Roberts Court responded by expanding the shield protecting prosecutors from any liability for their behavior. Citing the decisions which defined the constitutional obligation of prosecutors to disclose promises made to witnesses, and recognizing “that sometimes such immunity deprives a plaintiff of compensation that he undoubtedly merits,”13 the Court nevertheless held prosecutors completely immune from liability for failing to keep records that would make disclosure possible because lawsuits would inconvenience prosecutors and might interfere with the proper performance of their jobs.14 The Court did not specify any incentives for prosecutors to honor their obligations, prevent such miscarriages of justice in the future, and compensate Tom Goldstein for the loss of twenty-four years of his life.
Following the Van de Kamp decision, another man convicted of a crime he did not commit also tried to convince the Court to protect the public from abusive prosecutors. In Connick v. Thompson, Justice Thomas,15 writing for the Court, described the prosecutors’ behavior as “flagrant—and quite possibly intentional—misconduct.”16 Justice Ginsburg’s dissent amplified what had happened. In what has been all too common misbehavior: “Throughout the pretrial and trial proceedings against [John] Thompson, the team of four [who were] engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.”
Nevertheless, the Court once again protected the prosecutor and denied relief. Ginsburg commented in dissent, that “the trial record . . . reveals [that] the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.” And she concluded that “a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.”17 For the Court, this “single” instance was insufficient basis for relief. Thompson spent eighteen years in prison, fourteen of which on death row, for a crime he did not commit. The prosecutors’ only contribution, in violation of well-known constitutional obligations, was to conceal the evidence that would have acquitted him. But they were excused by the Court, 5–4.
In Ashcroft v. Iqbal,18 Javaid Iqbal alleged a wide-scale discriminatory policy regarding conditions of confinement of Muslim men without evidence that they had participated in any terrorist activity. Justice Souter’s dissent described the allegations more fully than the majority:
Iqbal alleges that after the September 11 attacks the FBI “arrested and detained thousands of Arab Muslim men” . . . that many of these men were designated by high-ranking FBI officials as being “of high interest” . . . and that in many cases, including Iqbal’s, this designation was made “because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees’ involvement in supporting terrorist activity.” . . . The complaint further alleges that Ashcroft was the “principal architect of the policies and practices challenged” . . . and that Mueller “was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged.” . . . According to the complaint, Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject [Iqbal] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” . . . The complaint thus alleges, at a bare minimum, that Ashcroft and Mueller knew of and condoned the discriminatory policy their subordinates carried out. Actually, the complaint goes further in alleging that Ashcroft and Mueller affirmatively acted to create the discriminatory detention policy. If these factual allegations are true, Ashcroft and Mueller were, at the very least, aware of the discriminatory policy being implemented and deliberately indifferent to it.19
Iqbal’s complaint was one of many brought by major civil liberties organizations challenging the discrimination toward Muslims without any basis in factual information about them.20 But the Court’s treatment of Iqbal’s complaint made it difficult to hold federal officials responsible.
Rule 8 of the Federal Rules of Civil Procedure requires only that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief.” It was adopted to eliminate the need to elaborate specific facts and legal theories in the complaint and to head off lengthy technical battles about what the complaint should have said.21 But the Court required the complaint to state the facts in some detail, continuing a redefinition of Rule 8.
Second, the Court eliminated liability for knowingly acquiescing in, or deliberate indifference to, the misbehavior of subordinates, even though counsel for Ashcroft and Meuller conceded that was the correct standard, and the issue had been neither briefed nor argued.22
Third, the majority treated Iqbal’s allegations of misbehavior as “conclusory” and “formulaic,” including allegations about who created and implemented what policy of discrimination.23
Fourth, having concluded that Iqbal’s allegations should be treated as conclusions rather than as facts, the majority concluded that Iqbal’s claims about Ashcroft and Mueller were implausible inferences from the existence of different treatment given Muslim men.24 Although the Court denied that it was making a judgment about what Ashcroft and Mueller actually did,25 its judgment about what counted as a factual allegation and its assessment of the implications of proof of discrimination reflected long-standing blind spots of the Court, and a lengthy battle between Congress and the Court about the evidence required to prove discrimination.26
Plausibility is a troubling standard because it invites judges to evaluate claims subjectively, based on their respect for the individuals, political ideologies, and exposure to the kinds of problems addressed in the complaints. One might compare the Court’s solicitude for the competing public obligations of President Clinton—when the Court refused to stay a private and legally implausible lawsuit that was later dismissed27—with its solicitude for the competing obligations of Attorney General Ashcroft in Iqbal and various prosecuting attorneys in Van de Kamp v. Goldstein and Connick v. Thompson in evaluating how reliably courts might assess other subjective standards like plausibility in the early stages of litigation.28 The system of notice pleading, abrogated only recently by the Roberts Court,29 is much more likely to produce reliable results.30
Following the Iqbal decision, my colleague Raymond Brescia examined the impact of both Iqbal and a prior ruling on which the Iqbal decision was based.31 Brescia concluded that Iqbal left courts much more likely to dismiss discrimination claims.32 The Court’s action fits a long pattern of making it difficult, if not impossible, to prove discrimination.33
In Ashcroft v. al-Kidd,34 the Court decided Attorney General Ashcroft and others involved were immune from responsibility for abusing the power to arrest and detain material witnesses by using it against people without any intention to put them on the stand. Neither Ashcroft’s nor the government’s motives mattered to the Court. The Court had condoned a maliciously motivated arrest in a prior decision.35 Now they allowed prosecutors to mislead magistrates when seeking a warrant. Concern that “a pretextual warrant . . . ‘gut[s] the substantive protections of the Fourth Amendmen[t]’ and allows the State ‘to arrest upon the executive’s mere suspicion’” escaped the Court.36
Abdullah al-Kidd was a native-born American citizen, neither called as a witness nor charged with a crime. He had been meeting and cooperating with federal investigators regarding an investigation of Sami Omar al-Hussayen, a terrorism suspect, but federal officials presented a magistrate with an affidavit that misrepresented al-Kidd’s availability to testify at the trial of al-Hussayen fourteen months later. Before it was determined that it was sufficient to release him subject to a travel restriction for most of the fourteen months, al-Kidd was detained “in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.”37
In each of those cases, the Court refused to interpret the Bill of Rights to protect the public from the abuse of power, a fundamental purpose of the founders’ work.
Judicially crafted immunities protect most law enforcement personnel if they act in “good faith” and not in violation of “clearly established law.”38 Van de Kamp and Connick ignored the clearly established law and provided absolute immunity for prosecutors, while Iqbal ignored good faith, holding the officials’ motives were irrelevant. Despite the Bill of Rights, innocent people abused by officials with guns and badges have few remedies, courtesy of the Roberts Court.39
Law, to the Court’s conservatives, is rarely about accurate fact-finding or procedures. Instead, it is a system to control the public without regard to catching the right defendant.
The Roberts Court resists even providing reliable procedures. It took years, over sustained objections from the Court’s conservatives, to decide that detainees on Guantanamo had the right to petition the courts for a writ of habeas corpus.40 It struggled to allow the right to have attorneys who could have access and respond to government hearsay evidence.41 It overruled two lower federal courts which had ordered Alaska to make DNA evidence available for testing, deciding that prisoners have no right to evidence that could prove their innocence.42 Even when evidence discovered after conviction shows that a prisoner is innocent, when the evidence that led to conviction turns out to have been false and misleading, the Court has been deeply split and unable to find that alone justifies any relief.43 Four justices have resisted every attempt at freedom, while Justice Kennedy just calls it “an open question” whether a “‘federal constitutional right to be released upon proof of ‘actual innocence’” exists. Kennedy noted, “We have struggled with it over the years,” but he remains unwilling to decide.44
In these decisions, the Roberts Court repeatedly told prosecutors they are free to hide evidence, lie and let witnesses lie, and keep innocent people in prison. The Court’s stance makes liberty more tenuous and conflicts with the views of the Bill of Rights’ authors,45 as well as the conclusion of modern political scientists, that fair and accurate procedures matter for the survival of democratic government.46 Autocrats from Putin to Pinochet disregard due process as they consolidate power, illustrating the risks the Court imposes on America.
While Citizens United was percolating through the courts,47 the Roberts Court compiled a record limiting political rights that exceeds the chutzpah and damage of that infamous decision.
Unlike courts abroad, the Roberts Court does not treat the inclusion of the public in the mechanisms of democracy as crucial to defining democratic government, nor does it consider popular control of government as a virtue to be defended. The political science community finds the inclusiveness of the democratic system strongly affects whether the system spirals into autocracy and kleptocracy or whether the democratic system strengthens in the service of the general public. In most contexts, the Roberts Court supports entrenched power over citizen control.
Justice Thomas, in an opinion joined by Justice Scalia, told us in 1994 that he does not believe that there is a fair definition of democracy that can be used to decide cases.48 That rejection of principles of democratic choice implicates cases involving the apportionment of seats, the drawing of district lines, the registration of voters, and the protection of minority voters, among others. Constitutional structure affects the Court’s reading of federalism but not its treatment of democratic institutions. Thus there is nothing subtle about the treatment of democracy by Thomas and Scalia; they head it off at the pass and attack with guns blazing.
In Rutan v. Republican Party, a 1990 decision about patronage practices in Illinois, the Court had to decide whether personnel decisions “involving low-level public employees may be constitutionally based on party affiliation and support.”49 In dissent, Scalia stressed the importance of “the link between patronage and party discipline, and between that and party success.”50 As Scalia recognized, patronage gives preference to loyalty over other skills. Strong “disciplined” parties are somewhat immune from the rank and file supervision. Theirs is control of, not by, their members.
Beginning in 1996, the Court adopted Scalia’s position in cases about drawing district lines for legislative seats, holding that otherwise unconstitutional districting can be justified when it protects incumbents.51 States can allocate voters for the benefit of leaders, and that trumps inequalities. Politics is a game of kings, or at least bosses, not people.
Four of the Roberts Court’s conservatives have not approved an attack on the entrenchment of elected officials, and the fifth did so only rarely.
In League of United Latin Am. Citizens v. Perry, the Court refused to address the scientific measure of gerrymandering, known either as symmetry or neutrality. The four “liberal” members of the early Roberts Court argued, in dissent, that the definition and test for gerrymandering used by the political scientists should be employed. The four more conservative members of the Court rejected it.52
Chief Justice Roberts and Justice Alito wrote that “appellants have not provided ‘a reliable standard for identifying unconstitutional political gerrymanders.’” They also commented that whether partisan gerrymandering presents a “case or controversy” that the Court is allowed to resolve had not been decided.53 If gerrymandering presents no case or controversy, then—no matter how badly the districts are gerrymandered to insure victory for one party—their opponents have no right to complain.
Justices Scalia and Thomas concluded that “claims of unconstitutional partisan gerrymandering do not present a justiciable case or controversy” so the Court had no business even hearing it and the party fenced out of legislative seats had no right to complain. The political scientists’ brief notwithstanding, they also concluded, “no party or judge has put forth a judicially discernible standard by which to evaluate them.” They would “simply dismiss appellants’ claims as nonjusticiable.”54
Justice Kennedy was more interested in the neutrality standard: “A brief for one of the amici proposes a symmetry standard that would measure partisan bias by ‘compar[ing] how both parties would fare hypothetically if they each (in turn) had received a given percentage of the vote.’ . . . Under that standard the measure of a map’s bias is the extent to which a majority party would fare better than the minority party, should their respective shares of the vote reverse.” Still he was not satisfied: “Amici’s proposed standard does not compensate for appellants’ failure to provide a reliable measure of fairness.” Kennedy was concerned that the model might not predict accurately whether the change would be smooth across the state or would be concentrated in certain areas. And he was skeptical of statistical predictions: “we are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.” Nevertheless Kennedy appears to have left a door open to use the symmetry standard in some yet undefined combination with other elements: “Without altogether discounting its utility in redistricting planning and litigation, I would conclude asymmetry alone is not a reliable measure of unconstitutional partisanship.”55 Given Thomas’s and Scalia’s rejections of neutrality and the skepticisms of Roberts and Alito, it appears that door is open only to Kennedy among the conservative justices.
The majority also rejected most objections to Texas’s districting plan under section 2 of the Voting Rights Act.56 Nevertheless, Justice Kennedy and the four justices to his left reversed the lower court’s decision with respect to the redrawing of the lines of one district allocating the Hispanic community a smaller portion of southern and western Texas. Section 2(b) of the Voting Rights Act requires that nominations and election procedures should be “equally open to participation” without regard to race or language without any right to have representatives “elected in numbers equal to their proportion in the population.”57
Gerrymandering to strengthen Republican prospects at the polls meant splintering the Democratic-leaning minority community among several surrounding districts. Roberts and Alito said Texas had done enough for the Hispanic community to satisfy its constitutional obligations, noting that the Hispanic share of Texas districts was “roughly proportional” to their share of the population.58 Their data revealed, however, that the non-Hispanic community would have been more than proportionately represented even if another district had been designed with a Hispanic majority.
Scalia and Thomas supported splintering of the Hispanic community. They required the state to show a tremendously important justification before it could aid minority voters, which they treated as a racial preference. “In my view,” Scalia wrote, “when a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation and strict scrutiny is therefore triggered.”59 But they did not object to weakening minority voting strength because they did not think favoring majority white voters was racially motivated.60 In that circumstance, “[a]lthough a State will almost always be aware of racial demographics when it redistricts, it does not follow” that advantaging white voters would be racially motivated.61 That contrast in standards is astonishing from a member of the Supreme Court but clearly expressed. For them, the principle of equal protection designed to protect the freed slaves and their descendants now largely protects only the descendants of their former masters and those with similar pigment and European origins. Equal protection, as they understand it, is not racially neutral–it favors whites.
So with the exception of one district, LULAC sustained the Republican effort to maximize control of Texas’s congressional delegation by gerrymandering the state and splintering, or “cracking,” the Democratic population to reduce its share of the Texas congressional delegation.
Two years later, in 2008, the Roberts Court decided five cases involving the entrenchment of political leaders. Perhaps most surprising was the unanimous result in the 2008 New York judicial nomination decision, New York State Bd. Of Elections v. López Torres.62 New York, by law, holds party conventions only for judicial nominations. Voters select delegates to the nominating conventions, but not the judicial candidates themselves. After the conventions there is a limited opportunity for independent candidates to collect signatures to try to get on the general election ballot.63 And party leaders are free to arrange cross-endorsements for candidates of the other major parties, so that the parties do not compete at the general election. Two results stand out. First, New York puts party nominations for judicial offices largely in the control of the political bosses. Second, a large proportion of judicial elections are uncontested.64
No one on the Court saw any problem with statutory support for political party boss control over judicial nominations. They held the provisions acceptable because party members could have adopted it. Justice Scalia wrote: “Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates.”65 Therefore, according to the Court, it was perfectly acceptable for the state to impose smoke-filled rooms on the nominating process by state statute.
Two months later, the Supreme Court decided parties could not control who could identify him- or herself as party candidates on the primary and general election ballots.66 Washington adopted a run-off system in which candidates identified their party preference on the primary ballot. All candidates competed in the same primary, an open primary because it is open to candidates and voters of all parties. The top two vote-getters, regardless of whether they belong to the same or different parties, compete in the general election. Over the objections of Justices Scalia and Kennedy, the court upheld the Washington primary and general election system.
Washington’s open primary system was an extension of Washington voters’ electoral populism. The New York system reflected a preference for smoke-filled rooms. But both cases preferred government control over how parties nominate candidates. Two decades earlier, in Tashjian v. Republican Party, the Court had upheld—paraphrasing Barry Goldwater’s famous slogan—“a choice” or “an echo.” In Tashjian, Connecticut Republicans wanted to open their primary to independent voters to nominate the most broadly acceptable statewide candidates. Connecticut law restricted party primaries to registered party voters, but the Court blocked the state from overriding the party’s choice. Previous cases similarly blocked states from requiring open primaries when the parties chose closed ones.67 Those cases affirmed the parties’ right to organize to best present their message, whether a choice or an echo.
The Supreme Court’s approval of both the New York and Washington systems can, in different ways, protect the status quo. New York can protect existing officeholders by encouraging self-dealing between bosses. Washington can drown voices for policy change and drive all candidates to the center by making them appeal to the same voters so that the winning candidates will echo each other’s policy preferences.68
In the third major election decision of 2008, Crawford v. Marion County Election Bd.,69 the Court sustained Indiana’s new requirement that voters produce government-issued photo identification in order to vote. The card itself was free, in deference to an old U.S. Supreme Court decision,70 but the cost of producing the documents required to get one could be substantial. Applicants had to present a birth or naturalization certificate, a veteran’s or military photo ID card, or a U.S. passport. Each document has a price tag, which varied from three to one hundred dollars, depending on which state or agency it would have to come from. And voters might have to make repeated trips to state offices to get the required photo ID card before the election, or after the election to complete the process of using a “provisional ballot” by executing an affidavit. Those trips could cost hours of lost income plus the price of transportation. Indiana did little to make it easier for voters to get the necessary photo identification, much less than other states did to make it easier to vote. All that would discourage poor or handicapped citizens from voting. The potential political consequences were obvious—as Justice Souter put it, “the interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules.”71 Absentee ballots have been much easier to abuse on a much larger scale, but Indiana took no comparable measures to prevent absentee ballot fraud. Interestingly Judge Posner, who wrote the court of appeals’s opinion, and Justice Stevens, who wrote the Supreme Court’s opinion, have both publicly admitted they were wrong in Crawford.72
Then, in June 2008, the Court struck the so-called millionaire’s amendment from federal election finance law.73 The Bipartisan Campaign Reform Act of 2002 tried to even the odds between wealthy candidates and those with more ordinary means. The Court overturned it saying candidates have an unlimited First Amendment right to spend their own funds on their campaigns.
The Court sidestepped another 2008 election case. Ohio Republicans tried to force Secretary of State Jennifer Brunner to purge the voter lists where they were inconsistent with motor vehicle records.74 A U.S. district judge directed Brunner to purge the records. Brunner resisted because matching lists put together at different times for different purposes would exclude more people erroneously who should be allowed to vote. The similarity of names of different people, differences in spelling, use of diminutives, and changes of address, are among the many innocent sources for inconsistencies between records. The Supreme Court, in a one-paragraph unsigned order without argument vacated the injunction on the ground that it seemed unlikely that Congress had authorized private parties to litigate the issue under the Help America Vote Act.
Thus, in its first three terms, the Court had backed the statutory entrenchment of judicial nominations by political bosses in New York, rejected science that would have subjected gerrymandering to a mathematical standard for treating voters equally without regard to party, authorized splintering minority communities to reduce their representation in Congress, and began to unravel campaign finance rules. It treated the vote not as the condition and justification for democratic government, but as a privilege, which might or might not be allowed if people did not satisfy the standards set by the governing party as sufficient to qualify.
In 2009 the Court continued emasculating the Voting Rights Act. In Bartlett v. Strickland,75 the Court held that African American communities comprising less than half of a legislative district were not entitled to consideration in the way the districts were drawn. Then, near the end of the term, the Court left the constitutionality of the Voting Rights Act hanging by a thread in Northwest Austin Municipal Utility District v. Holder,76 waiting to be cut down in 2013.77
The Voting Rights Act of 1965 came after a century of failure. The Fourteenth and Fifteenth Amendments both addressed voting. But by the time President Eisenhower took office, virtually no blacks had been allowed to vote in the states of the Confederacy. Congress passed statutes authorizing the attorney general to enforce voting rights and authorizing federal officials to register voters, during the Eisenhower administration, in 1957 and again in 1960.78 Those, too, worked poorly.79
The Voting Rights Act of 1965 finally made a difference with the help of an army of civil rights volunteers and lawyers, both African Americans and white supporters, some of whom gave their lives in the effort. Section 2 prohibits voting rules that abridge or discriminate among voters because of race, color, or native language.80 Sections 4 and 5 together bar places with histories of discrimination, including the former Confederacy, from adopting any voting rule that will weaken the voting strength of racial or language minority groups.81 Section 5 is usually described as barring retrogression in voting rules that affect minorities, making their situation worse.82 It added teeth by requiring those jurisdictions to submit changes in voting rules to the U.S. Attorney General for pre-clearance before they can go into effect.83 In Northwest Austin, Chief Justice Roberts cited “the historic accomplishments of the Voting Rights Act,” the one piece of civil rights legislation that the Court had allowed to have a significant effect on the states over the past two decades.
Before it was last renewed, Congress held hearings to find out whether minority voting rights were still threatened in the old Confederacy and other places covered by the Voting Rights Act. Congress wanted to know whether the statute had done its work and could be retired. Witnesses described constant efforts to move voting places, change district lines, reorganize the forms of government and otherwise exclude African Americans from political power. But because the Voting Rights Act gave the U.S. attorney general the authority to reject changes that attempted to turn the clock back, most of those efforts failed. The witnesses’ testimony made clear that efforts to undo electoral integration continues almost unabated, however, and would come roaring back if allowed. Pamela Karlan, a well-known and highly respected professor and associate dean at Stanford Law School, told the committee at the hearings:
[I]f you have a really bad infection and you go to the doctor, they give you a bunch of pills, and they tell you, “Do not stop taking these pills the minute you feel better. Go through the entire course of treatment because, otherwise, the disease will come back in a more resistant form.” And the Voting Rights Act is strong medicine, but it needs to finish its course of treatment, and that has not yet happened for reasons that you have heard from other witnesses.
City of Boerne v. Flores,84 decided in 1997, had a warning. Justice Kennedy compared the strong record of abuse and disenfranchisement, which justified the Voting Rights Act of 1965, to what he considered the weaker record of religious discrimination behind the Religious Freedom Restoration Act. On that basis he wrote the Court’s opinion that the Religious Freedom Restoration Act unconstitutionally burdened state government. Boerne implied that subsequent extensions of the Voting Rights Act might be tested against a contemporary record of racial discrimination in voting and election laws.
The trend was against enforcement of the Civil Rights Acts. The Rehnquist Court had gradually narrowed the meaning of the Bill of Rights and the Fourteenth Amendment. The Rehnquist Court in Boerne made it clear that it would extend Congress little leeway in legislating under section 5 of the Fourteenth Amendment. If the Court would not act, Congress usually cannot.
In Shelby County, the Court swung the axe. The Court imported a principle of equal state rights into the Constitution.85 To Roberts and his colleagues in the majority, that means the states of the old Confederacy have the same right to discriminate against African Americans and other minorities that all the other states do. The Court could not claim that any state has a right to discriminate;86 that’s forbidden by the Constitution in very clear language—“no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”87 But Roberts and company did not want to deprive the old Confederacy of the opportunity to try to evade that prohibition just like anyone else. The original record of discrimination was compiled before the Voting Rights Act did its work, and the Voting Rights Act did its work very well. Therefore, despite constant state requests for permission to take actions that would discriminate against African Americans and other minorities, there was no longer any reason to impose on the states covered by section 5—the very reading against which Pamela Karlan eloquently warned.88
With the Shelby County decision, the Court has largely closed the legal chapter of the civil rights movement with respect to minorities, while still treating the equal protection clause of the Fourteenth Amendment as requiring powerful remedies on behalf of the descendents of European immigrants against the descendants of African immigrants. Equality is a one-way ratchet that George Orwell would have understood—it makes some people “more equal” than others.89
The Court drove that point home in consistent hostility to attempts to “democratize” the political process by leveling the playing field, especially by campaign funding rules. It found limitations on the size of contributions too severe,90 and overturned the so-called millionaires amendments that buttressed public funding programs where competitors exceeded what candidates who accepted public funding received.91 In Citizens United,92 the Court overturned the prohibition on direct spending from corporate and union treasuries that had been part of American politics for a century.93
The flow of money is complex and has been an area of intense study by political scientists. Before Citizens United, political scientists had been arguing that campaign funding should focus on “floors, not ceilings,” put public money into election campaigns but do not limit what can be raised or spent except voluntarily, as candidates do if they accept public funding of presidential campaigns. Public funding could promote fair, competitive races if funds are sufficient for both candidates to get their messages across. The mantra of political scientists has long been competition.94 Depressing available funds lessens competition, especially by challengers against incumbents. Unseating incumbents is expensive because they start with large advantages. Therefore, limiting what challengers can raise has a disproportionate effect on them and leaves leadership more entrenched. Plus, campaigns seeking votes in working-class or impoverished constituencies need financial angels. In other words, limitations on campaign contributions can also squeeze out candidates trying to represent the interests of ordinary Americans. Much of the research, however, was conducted when Democrats had long-term control of Congress, so the flow of money was strongly affected by the need to curry favor with them. That kind of protection money may have swung to support GOP candidates.
It will be a while before we have a clear understanding of the impact of the Citizens United decision. So far political spending still seems reasonably balanced across the political aisle. But that may not measure the impact of corporate spending. Money may shift power and ideology as much within as between the parties. That is essentially Ralph Nader’s position, and he may be right. Corporate political activity directed toward lobbying for legislation tends to align their overall impact with more conservative causes.95 And the rightward tilt of the wealthiest may be magnified by corporate governance mechanisms—minorities on corporate boards are not likely to be reflected in political spending by board majorities. Until the evidence is in and analyzed, there are good reasons to believe that the more money is allowed the more that money controls and moves politics in a counter-populist direction, although the details of the channels involved remain to be understood.
Regardless of the complexities of the flow of money that political scientists have studied, it seems likely that the Supreme Court, like most Americans, believed their decisions against campaign finance rules would give an edge to those with the money to control the process—another example of the Roberts Court’s support for the entrenched political power.96 Of the conservatives, only Justice Kennedy found a problem with the influence of money and only in the case of a West Virginia judge sitting on the case in which a three-million-dollar contributor was a party.97
The future of democracy, according to contemporary political science, requires universal adult suffrage, fairly and equally counted votes, nonpartisan handling of electoral mechanics, and a nonpartisan Court.98 Those also are elements of the moral claim of democracy to govern. The conservatives currently in the majority on the Roberts Court block the path to fair elections. The Court offers no relief for malapportionment, no relief for gerrymandering, no relief for exclusion from the polls, no relief for minorities under the Voting Rights Act, and in Bush v. Gore, conservatives on the Rehnquist Court, most of whom continue to serve on the Roberts Court, blocked a manual recount to audit the electoral machinery. Instead, the Court offers support for statutes that lock in boss control over party nominations (especially of judges) and make it more difficult and expensive to register and vote. The Court overruled a series of efforts to democratize campaign finance and dismantled the most effective remedy of the Voting Rights Act. There are no democratic rights—no rights to vote—that this Court respects.
The New Deal and Warren Courts ended the white primaries in the South, protected black voters, and required “one person, one vote.” The Roberts Court has refused to maintain that effort at every turn. The consistency of its rulings reflects the hostile attitude toward democracy that Scalia and Thomas expressed. With the occasional exception of Justice Kennedy, none of the conservative justices have accepted any attempt to open or democratize the election process.
Voters also need a free marketplace of ideas but there is no need here to review relatively settled areas of free speech doctrine. The restructuring of the information media by the Internet and the devolution of the Internet trunk lines from public to corporate hands have the potential to present major issues of government complicity in monopolization.99 We will not know for some time how the Court will handle those issues, although there certainly are decisions suggesting it will support both corporate and governmental control.100
Madison explained in the Federalist that the purpose of the separation of powers was not merely to assign different tasks to different branches, but to create mutual dependence so that the branches would check each other.101 By requiring the operation of more than one branch for many tasks, the separation of powers limits the possibility of abuse or dictatorship and can protect freedom.
The signature separation of powers cases in the Roberts years arose from the prisoners the United States took in Iraq and Afghanistan. The conservatives—notably Roberts, Scalia, Thomas and Alito—stressed the independence of the branches, particularly the presidency, and the importance of not interfering in what the president sought to do, so that conservative references to the separation of powers did little work protecting freedom.102 Their approach emphasized power, another major goal of the separation of powers. If the president set up military commissions, it was the Court’s job to see that he got what he wanted. And if the executive acquired and reviewed phone or e-mail records, those four conservatives treated the separation of powers as reason not to consider the issues plaintiffs raised.103 Of the conservatives, only Justice Kennedy thought that the separation of powers was to enable judicial oversight of incarceration by the executive.104
The conservative justices also used the separation of powers as a reason not to interfere in President Bush’s faith-based initiatives or Arizona’s funding of religious schools. Their position was that the Court would be intruding if it examined the actions of either the legislature or the executive on such religious matters.105 In that way, they used the separation of powers, not to restrain government, but to protect its decisions.
The Supreme Court’s conservatives have, however, been skeptical of agency action in cases dealing with corporate, environmental, and financial behaviors.106 The result has been separation of powers doctrine which is applied to ideologically defined categories of government action, but which is unreliable to protect against abuses of power that pose serious threats to democratic government.
American tradition, courts abroad, and political scientists studying democracy all treat building a united national community as important. Integration had been applied over two centuries to class, immigration, language, religion, ethnicity, gender, and, and finally, to race. But not by the Roberts Court.
In the Roberts Court’s race cases, advocates on both sides claim to take a unifying view, and blame the other for taking a divisive stand. The Roberts-led majority argues that any mention of race is divisive.107 For its critics, the Roberts-led majority entrenches the status quo and offers no path to incorporate African Americans into the mainstream of American life.108
In Parents Involved in Community Schools v. Seattle School Dist. No. 1109—a pair of cases coming to the Court from Louisville, Kentucky, and Seattle, Washington—the Roberts Court confronted the racial “melting pot” and the “contact hypothesis” that contact will improve interracial relations.
Beginning in the late 1930s the U.S. Supreme Court accepted both the ideology and the impact of the melting pot and the contact hypothesis. Starting with graduate education, the Court repeatedly held that there was no substitute for seating students in the same classrooms without barriers between them.110 The Court wrote: “[T]he State, in administering the facilities it affords for professional and graduate study, sets McLaurin apart from the other students. The result is that appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.”111 Anything less would deny African American students the chance to interact with people who would play a big part in their future professions. For lawyers, segregated professional schooling blocked their opportunities to interact with future lawyers, judges, and legislators who would affect their careers, and the benefit of conversation with them while working on their degrees. The Court did not write about changing attitudes; but it protected the opportunity for contact. And in 1948, the Court held in Shelley v. Kramer that judges could not enforce racially restrictive covenants—agreements among homeowners not to sell to people of a different race.112 Finally, in Brown, the Court wrote that “segregation is inherently unequal” in public elementary and secondary schools,113 an inescapable result from those prior decisions, a conclusion the justices almost certainly realized they would reach years before Brown was argued.
The Warren Court did not elaborate on the implications of Brown for public schooling, but for a single decision shortly before Warren retired. In that decision the Court held that it was not sufficient for formerly segregated school districts simply to remove the segregation language from its laws and let parents send their children wherever they chose. The Court had been down that route with the White Primary beginning in the 1920s.114 Instead, the justices maintained: “School boards . . . [were] clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”115 By 1968 Congress committed significant federal dollars to give segregated schools an incentive to integrate. It was left to the Burger Court to enforce the obligation to eliminate the vestiges of segregation, “root and branch.” And in a lengthy series of decisions the Court maintained that goal.116
By 2005, when the Louisville and Seattle cases came to the Court, many American school districts were still clinging, voluntarily, to the goal of bringing us together through education. Segregated neighborhoods in both cities meant that neighborhood schools would be largely segregated. Both cities created complex plans to create integrated schools with minimal reference to race. They relied on a combination of lotteries and parental choice. Only in well-defined marginal circumstances would anyone’s race matter. In Parents Involved in Community Schools, the Roberts Court found that marginal use of race unconstitutional.117
Housing patterns in cities like Seattle and Louisville tend to be described as “de facto” segregation. Calling it “de facto” makes it sound like government had no responsibility. All members of the Supreme Court have agreed that the Constitution requires a remedy for official discrimination. So de facto discrimination absolves government of responsibility and eliminates the one accepted reason for affirmative action—official government discrimination. Unfortunately, documents reveal FHA officials refusing to insure loans to blacks seeking to buy suburban homes. And the FHA discouraged banks from lending to blacks seeking to purchase or renovate homes in black communities. At stake were federal guarantees of home mortgages made by lending banks. This FHA action virtually mandated the segregation of white and black communities as well as disinvestment and deterioration of black neighborhoods.118 The practice of refusing to make loans in African American communities has been described as “redlining.” For years those working in the communities involved thought the problems were the work of brokers, agents, homeowners, developers, and bankers. Official federal involvement was slow to come to light. It has now been clearly documented.119
Had it been raised in the litigation over school districts, the Court might have shrugged it off because the documents are about federal behavior; the school districts were all state entities. In Milliken v. Bradley, decided in 1974, constitutional violations at all levels of government created racial segregation in Detroit, Michigan. But the Burger Court held that the suburbs surrounding Detroit were not complicit and could not be made to participate in remedying Detroit’s problem.120 Extending that logic, it is not clear what it would accomplish to acknowledge federal culpability for Seattle, Louisville, or other areas where segregation might be traced back to federal action, because federal discrimination does not establish municipal culpability. That probably leaves no remedy against either the federal government, which bore much of the responsibility, or any obligation on the part of the white suburbs created by federal racial discrimination, whether or not those suburbs felt themselves “benefitted.” No racial remedy is permitted by governmental bodies unless they have intentionally discriminated.121 Some cities still tried to provide integrated schools for their students. The Roberts Court, in Parents Involved, closed off what may prove to have been the only remedy left by blocking a remedy the cities chose voluntarily.122
Writing for the Court, Roberts suggested that affirmative action is divisive.123 In contemporary America, all choices are somewhat divisive. Leaving groups apart accommodates white racism, and leaves African Americans deeply isolated and bitter, so that inaction is also divisive. Bringing people together requires mixing. In moderation, groups can be brought together with minimal acrimony.124 The Roberts Court and part of the communities regard that as divisive and unpleasant. The Seattle and Louisville schools both pointed out that few students were affected and it was acceptable to most of the voting population.125 The Court suggested no solution it would consider constitutional. The Roberts-led stance therefore creates one form of divisiveness coupled with continued separation in order to avoid a different form of divisiveness coupled with more complete integration.
It’s questionable how divisive the Louisville and Seattle plans were. Both had been adopted by local educational authorities, not imposed in a distant capital.126 And both had been designed to bring races together. Neither plan favored any race, but merely brought them into contact in the time-honored American tradition of the coeducational public school system. That system was divisive when introduced and when each new group was brought in, but the divisions were temporary and all but forgotten except by scholars examining American educational history.127
How deeply does racial division affect America? The combination of financial redlining, movement of employment opportunities to the suburbs, and isolation of poor black children in minority schools, has made their communities, and even the cities in which they live, seem much more alien to the surrounding culture. Reactions to issues like affirmative action that have a racial impact are not simply code language for the racial divide. And disinterest in the plight of others has a variety of roots. But it would be equally dense to miss the contribution made by racial isolation. Continued segregation helps divide and corrode our democratic system.
The Court’s Establishment Clause decisions show the same indifference to building community across faiths. It does that largely by closing the courthouse door so that it becomes impossible to challenge some forms of government support for religious activity.
Hein v. Freedom from Religion Found.128 challenged spending federal money specifically to help faith-based organizations get federal funds. President Bush set the program up by executive order and appointed Jay Hein director of the White House Office of Faith-Based and Community Initiatives to coordinate the effort.
When government spends money, there may be no one who has a sufficient direct injury to challenge the expense in court, under Article III of the Constitution. So, for several decades, the Court accepted the “standing” of taxpayers to challenge government expenditures that might violate the constitutional ban on establishment of religion.
The Freedom from Religion Foundation sued. The Court did not decide whether the program or anything done by Hein or his office violated the Establishment Clause. Instead it held that plaintiffs had no standing to sue. In general, that means a “plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”129 Scalia and Thomas would have eliminated taxpayer standing altogether. Alito (writing also for Roberts and Kennedy) announced that taxpayers have no standing to sue for presidential actions unless they have been authorized by Congress, because the precedent for taxpayer standing referred to congressional actions and this case had nothing to do with Congress. In plain English, since most presidential authority is based on congressional grants of power,130 the less authority the president has, the less he can be called to account. The combination of Scalia’s opinion and Alito’s—although they reasoned in very different ways—meant that the suit was thrown out. It also means that the president has a great deal of leeway to act on his, or her, own with regard to funding religious groups, because it will be hard to find ways to challenge it.
In Ariz. Christian Sch. Tuition Org. v. Winn,131 the court threw out a challenge to tuition tax credits also on the ground that taxpayers lacked standing to object. Kathleen Winn and other Arizona taxpayers challenged Arizona “tax credits for contributions to school tuition organizations . . . [which] provide scholarships to students attending private schools, many of which are religious.”132 The Arizona plan was constitutional given decisions of the Rehnquist court a few years earlier. But denying taxpayer standing resolves a large class of issues by simply closing the courthouse. A five-member majority held that taxpayers have no standing to object to tax credits because the plaintiffs’ taxes did not pay for the school tuition. Therefore there is no injury to the taxpayers sufficient to justify standing to sue. Economists and tax experts have long been describing tax credits as tax expenditures, but the majority held there was a constitutional difference.133
The original objection which the establishment clause was intended to address was the funding of clergy by the government.134 The Court’s decisions make it difficult to enlist the Court in preventing or stopping such funding. Justice Kagan, writing for the four dissenters, pointed out:
Distinction [between taxes and tax credits] threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other. Today’s opinion thus enables the government to end-run Flast’s guarantee of access to the Judiciary. From now on, the government need follow just one simple rule—subsidize through the tax system—to preclude taxpayer challenges to state funding of religion.135
The Hein and Ariz. Christian School Tuition Org. cases facilitate funding religious schools. To understand the significance of these decisions we have to look back at the legal and political context in which they arose.
The Vinson Court erected the so-called wall of separation between church and state based on documents from this country’s founding, a time when states were beginning to disestablish their churches. The wall was designed to protect individual freedom of conscience and also to protect religious institutions from government meddling.
The Rehnquist Court knocked the wall down by substituting the position that government should be neutral between faith-based and secular groups seeking to use school facilities.136 It remained to be decided what is neutral. In Zelman v. Simmons-Harris,137 the Rehnquist Court held that states could give parents vouchers for private or parochial education so long as the parents chose the school and the legislation covered individuals and schools without reference to religion. Many of the private secular schools were ineligible because their tuition exceeded the statutory maximum. Other secular schools participated in the program but admitted only a few students. Therefore the bulk of funds went to religious schools. But the Court denied that the program favored religious schools because, according to the court, parents had choices.
Zelman changed the legal meaning of neutrality. For most of the twentieth century, a secular education was neutral; the public schools gave its students a floor of knowledge in secular subjects. Public schools brought children of all faiths together and provided education without reference to religious belief. People could add the schooling of their own faiths outside of school, on any matters they thought appropriate, but at their own expense. For most Americans, Sunday school or after-school classes provided faith-based education. The wall of separation and a vibrant American religious culture flourished alongside one another, as the Court enforced both the nonestablishment and free exercise clauses of the First Amendment. The Court’s interpretation of the wall of separation never barred courses in the history of religion or in comparative religion.138 What it did bar was the use of public funds and public schools for education or indoctrination in the tenets of a single faith. Indeed, in some respects the Court was more ready to support religious expression before the Rehnquist Court substituted the rule of official neutrality.139
Some religious groups charged that the public schools are teaching secular humanism as a substitute for religion. On that view, if secular subjects are not taught in the form of admiration for a divine being, then they are contrary to religion, that is, not neutral at all. In the cases concluding with Zelman, the idea of secular subjects seemed to have changed from neutral to unequal in the Rehnquist Court’s mind. If so, all that remained was to decide that vouchers were not merely permissible, they were required.
Zelman led several religious foundations and law firms to argue that official neutrality required government support for religious education.140 That would remake American education, dividing more children by faith from the time they enter school. It would segregate American education on the model of Europe, India, and other countries where government supports religious education. In Israel, Jews, Muslims, and Christians are all educated separately, leading one to wonder how they ever expect to be able to settle their differences.
The Rehnquist Court, however, stayed its hand in Locke v. Davey.141 The State of Washington funded studying at colleges and universities that met state standards, including religious schools, but not religious instruction. The state was prepared to fund students studying religion “from an historical and scholarly point of view”142 but it refused to fund Joshua Davey’s devotional program of study, which would prepare him for the ministry.
Justices Scalia and Thomas concluded in dissent that Washington had discriminated against religion. Scalia wrote: “When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.”143 Scalia and Thomas made the crucial jump from a neutral common baseline of secular education to an obligation to fund religious education. Having made public education available, Scalia and Thomas concluded that Washington had to make religious education available on the same terms.
For prior courts adhering to the wall of separation, there was no breach of neutrality. The state provided everything secular, neutrally, to everyone, including fire, police, water, and sanitation departments. There is no antireligious bias in not providing separate faith-based services. Similarly, providing secular education did not favor or discriminate against anyone’s faith or faith in general. People were free to pursue what faith they chose without interference by the government. And the government did not affect power within the churches by deciding whom to fund. In providing secular education, it was offering a public service on neutral grounds without interference with religion.
Rehnquist, joined by the rest of the Court, refused to make the leap that Scalia and Thomas did. Rehnquist, writing for the Court, maintained that this “case involves that ‘play in the joints’” between the Free Exercise and Establishment Clauses of the First Amendment. In other words there is a mild nonneutrality but the state must be permitted to stay out of the funding of religion in its effort to avoid the establishment of religion that would violate the Constitution.144 Or to put it another way, the Rehnquist Court’s approach to religion stopped short of logical and doctrinal consistency, at a compromise between the wall and religious equality to public secular education.
The proliferation of schools addressed to separate segments of like-minded parents is being accomplished in a variety of ways—particularly by charter schools, which are publicly funded but run by separately chartered groups, as well as by vouchers and tax credits. Hein and Ariz. Christian School Tuition Org. expand the opportunities for separate segregated religious schooling.
Eleven o’clock on Sunday mornings has been described as the most racially segregated hour in America. It is also the most religiously, and to some extent also ethnically, segregated hour in America. Grouping ourselves by faith for religious purposes in houses of worship of our own choosing is an essential part of the free exercise of religion, to which Americans are entitled. But publicly supported religious schooling threatens to extend the separatism of Sunday mornings to the entire school week. It is hard to miss the potential contribution of religious isolation.
The Roberts Court’s treatment of race and religion challenge the melting pot. The problem posed by the Court is not defined by its disdain for any specific remedy, whether affirmative action, a unified school system, or the separation of church and state. The implications are cumulative. It remains to be seen whether American traditions behind the melting pot are strong enough to survive the Court’s antagonism.
Political science has put financial issues at the core of stable democratic systems. Where the split between the wealthy few and impoverished mass is too great, it puts a great strain on democracy and is often the prelude to coups, violence, or other forms of breakdown of democratic government.
The Court normally works at the margins of economic change and redistribution, because legislation normally has a greater impact than the financial issues submitted to the Court. Nevertheless, the Court can ameliorate or exacerbate the problem by reinterpreting legislation or declaring it unconstitutional. And as “national storyteller” it can alter perceptions of the justness of financial power grabs. The Roberts Court has been a cheerleader for the increasing concentration of wealth, encouraging both the ideology and the support of an army of lawyers and staffers who press the Court for still greater shares of the financial pie.
Five members of the Roberts Court were members of the preceding Rehnquist Court, and three—Scalia, Kennedy, and Thomas—were part of an effort to use the so-called takings clause to limit government’s ability to deal with the environment or assist the poor. It’s worth spending a moment on those cases for what they reveal about the Roberts Court.
The takings clause requires government to make “just compensation” whenever it takes private property for public use. When ratified in 1791, the takings clause was understood as applicable when government took title to private property to convert it to a public use. And it was interpreted with a liberality befitting the founders’ attachment to public good over private gain. However, in his 1985 book, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN, Richard Epstein argued that even taxes were a taking unless they were used for taxpayers themselves. His approach would flatly ban public assistance to the poor or indeed anyone.
Epstein’s proposal is the only imaginable explanation for a bizarre pair of cases that attempted to use the just compensation clause to deprive legal services programs for the poor of funding through the Interest on Lawyers Trust Accounts systems, known as IOLTA plans. The IOLTA plans created large unified state bank accounts out of funds that pass through attorney’s hands but only funds so small, or held so briefly, that the banks would pay no interest at all for the deposits. Unified, however, the accounts generate significant interest. Realizing that, all fifty states created unified funds and used the interest they generated to fund lawyers for people who cannot afford them. Lawyers, as even conservative leaders of the American Bar Association like the then future Justice Lewis Powell understood, were crucial for people to be able to resist efforts to defraud and deprive them of what little they have.
Two cases challenging IOLTA plans reached the Court. Plaintiffs claimed state use of interest on their money violated the takings clause of the Constitution. What made the cases bizarre was that there were no damages, no harm to any individual for which just compensation could be measured and paid. Any deposit large enough to throw off interest separately had to be rejected and would be returned if deposited. Nevertheless, Rehnquist, O’Connor, Scalia, Kennedy, and Thomas agreed that the constitution was violated and remanded the first case to the lower court to assess damages. When a second case raising the issue reached the Court, Justice O’Connor agreed with the liberals that there was no violation because there were no damages.145 That there were no damages, and therefore no constitutional violation of a duty to pay compensation, made clear the underlying ideological instinct. The votes of Scalia, Kennedy, and Thomas—now on the Roberts Court—that the IOLTA plans had to pay constitutionally required “just compensation” even though there were no damages, made clear that they were fighting against legal efforts to reduce the split between the wealthy few and impoverished many.
In addition to Epstein’s argument that we have no constitutional right to use government to help each other, it also helps to explore traditionally legal approaches to injury before examining the Roberts Court’s conservative economic response.
Tort law, which includes the law of accidents, is an example. Tort law is a legal tool to make people and businesses pay for the damage they do. If a business or anyone else can avoid paying for the damage it does, its balance sheet is very different from the social balance sheet, because the latter includes the injuries and costs. When business can impose costs on others, their profits are larger, and larger profits encourage businesses to do the things that hurt others. When the business balance sheet includes the damage it does, business is more likely to adjust its behavior. Economists call the harm to others externalities—they are external to the business and not taken account of in its transactions. Injuries that escape business balance sheets make goods and services more expensive to society than their price. Economists seek to internalize them. Tort law provides a way to do that by making businesses accept liability and pay for any damage they cause. There are inaccuracies and imperfections, of course, sometimes favoring business and sometimes favoring the injured. On the whole, however, tort law seeks to internalize costs rather than impose them on other people, whether a pedestrian hit by a vehicle, or people whose asthma, allergies, and cleaning costs are affected by pollution. Sometimes tort law is inadequate and other regulatory tools are used. Either way, putting the cost on the people or businesses that can avoid it is one of the major purposes of many of our legal tools.146
Externalizing costs changes the distribution of wealth. It allows “sharp practices” to become sources of great wealth at the expense of people behaving in ordinary and responsible ways. It also changes the business climate for everybody because any means of making money encourages others to copy, and companies that successfully externalize their costs can force competitors to match them. Some may be able to resist when selling to special audiences and markets, but consumers are most able to discriminate by price, less able to discriminate on safety, and to an even lesser extent motivated or able to calculate the costs to society as a whole.
Tort law affects those incentives by adjudicating responsibility, instance by instance, so that some of the external costs are brought, piecemeal, into the financial calculus. As companies recalculate their profits in light of their potential liability, they also have incentives to improve their products and practices. That is one way court decisions affect the extent to which the wealthy reap a larger share of national wealth while leaving the poor less. By supporting or blocking those rules, the Supreme Court affects how much unscrupulous business can dominate our lives like the infamous robber barons of the late nineteenth century.
Courts and the law are, by nature, distributive. People have a notion that markets can be “unregulated” in the sense that law is absent, but that is a misconception. Law answers disputes, favoring one of the parties and abandoning the other. The so-called absence of rules defining obligations is a legal statement that a party is immune from responsibility and can externalize the cost of the damages it does. In consumer matters, that is often the rule of caveat emptor. It is not the absence of law but rather that the law says the buyer is unprotected. Whatever the rules of the market, regardless of whom they favor and whom they abandon, those rules control and distribute the benefits and the burdens of the transactions.
Ronald Coase was a Nobel Prize–winning economist at the University of Chicago. He was admired by all economists, but conservatives think he was one of their own. In a pathbreaking piece, Coase wrote that sometimes the economy will produce the same goods regardless of how the law structures preexisting rights.147 If it was cheaper for the railroads to put spark catchers on the old steam locomotives than for each farmer along the rails to find ways to deal with fires, then either contracts or lawsuits would eventually lead to spark catchers on engine smokestacks—provided that there are good ways to settle the dispute among all the parties. Coase was quite clear, however, that law controls the distributive consequences by defining preexisting rights and responsibilities. If the railroad had the right to emit sparks and no responsibility for the damage, farmers would have to unite to convince the company to agree to put spark catchers on the engines; but the farmers would probably have to pay the cost to the railroads to convince them to act. If the farmers had the right to be free of sparks from the train engines, they would be able to sue and the railroad would bear the costs. The party without the initial right will end up paying more or suffering injury. Distributive consequences are intrinsic to law.
Courts constantly decide who bears costs or gets benefits and thereby cause big shifts in wealth among the people. At his nomination hearing, Roberts compared judges to umpires calling balls and strikes, but the Roberts Court has reversed numerous distributive decisions of federal and state governments. Where legislation tried to protect the general public, including the poorest and most vulnerable, the Roberts Court has redistributed wealth to the strongest and wealthiest, as we are about to explore.
One area where the Court has been redistributing wealth is antitrust law. The market fails us where competitors agree among themselves, thereby substituting agreement for competition. Antitrust laws were created to deal with that type of market failure. But the Roberts Court, relying on the market for efficient solutions to social needs, has undercut the antitrust laws, and in doing so, undercuts the market it claims to support.
The Court made its policy preferences clear in 2007. In Bell Atl. Corp. v. Twombly,148 the Court addressed proof of a conspiracy to set prices. Because price fixing is illegal, companies do not say when they’ve set prices. So plaintiffs start with circumstantial evidence of parallel behavior, and then use legal tools—called “discovery”—to get more information. Judges and juries are usually allowed to infer intentions from behavior. Identical moves close in time suggest an intent to work in concert, in violation of antitrust law. Similar rules permit judges and juries to infer intentions from suspicious behavior in criminal cases, statutory discrimination cases, and many others. Parallel conduct can be ambiguous, but it suggests the companies collaborated. The Court, however, decided that parallel conduct allegations were no longer enough in antitrust complaints. The Court demanded factual allegations that go beyond the inference from circumstantial evidence. Without facts “suggesting agreement, as distinct from identical, independent action [w]e hold that such a complaint should be dismissed.” Without inside knowledge, plaintiffs see only external behavior suggestive of a combination. But the Court threw the case out, blocking further factual discovery. The ruling makes it much harder to bring antitrust litigation. Although the case was about what plaintiffs had to say in the complaint, the ruling implies that parallel conduct alone will neither generate an inference nor require that defendants show other reasons for their behavior, arguably making it much easier for industry to fix markets.
The decision reversed decades of decisions interpreting the Federal Rules of Civil Procedure and the antitrust laws. The Court made its policy concern clear: “it is one thing to be cautious before dismissing an antitrust complaint in advance of discovery”; that would block the plaintiffs from going to trial. But it is “quite another to forget that proceeding to antitrust discovery can be expensive [to the defendants].”149 As Souter explained:
That potential expense is obvious enough in the present case: plaintiffs represent a putative class of at least 90 percent of all subscribers to local telephone or high-speed Internet service in the continental United States, in an action against America’s largest telecommunications firms (with many thousands of employees generating reams and gigabytes of business records) for unspecified (if any) instances of antitrust violations that allegedly occurred over a period of seven years.
The new rule would be cheaper for the dominant companies at the expense of weaker competitors. Stevens articulated the distributive consequence: “The transparent policy concern that drives the decision is the interest in protecting antitrust defendants—who in this case are some of the wealthiest corporations in our economy—from the burdens of pretrial discovery.”150
A month later, the Court delivered its opinion in Leegin Creative Leather Prods. v. PSKS, Inc.151 Since 1911 the rule had been that it was “per se illegal under § 1 of the Sherman Act, for a manufacturer to agree with its distributor to set the minimum price the distributor can charge for the manufacturer’s goods.”152 Companies could not tell dealers what to charge. That’s why we have the “manufacturers’ suggested retail prices” label. But the Court decided the per se rule would no longer apply and the “rule of reason” would take its place. Under that rule, the issue is whether the manufacturer has good business grounds to require a specific resale price. If they do, dealers cannot compete to drive the price down, and corporations can come closer to monopoly pricing. Under the “rule of reason,” courts would be asked to make individual judgments about whether such restraints are pro- or anticompetitive.
Justice Breyer responded, speaking also for Justices Stevens, Souter, and Ginsburg: “The upshot is, as many economists suggest, sometimes resale price maintenance can prove harmful; sometimes it can bring benefits. . . . But before concluding that courts should consequently apply a rule of reason, I would ask such questions as, how often are harms or benefits likely to occur? How easy is it to separate the beneficial sheep from the antitrust goats?”153 Breyer responded to his own question, “My own answer is, not very easily.”154
If Breyer is right, the Court’s “rule of reason” will make it much harder and more expensive to stop anticompetitive behavior in court and undermine the antitrust assumption that free competition makes for a better market. Essentially, the “rule of reason” is the Court’s device for gutting the antitrust laws—a vague standard that masks significant economic choices behind a veneer of legal language.
Preemption is legal language for holdings that federal law leaves no room for state law even though there is no specific conflict. Preemption can leave those injured without any remedy if the courts hold that federal law preempts state law that would impose responsibility on manufacturers and others for the foreseeable effects of their products and practices. The Court has waxed eloquent about the importance of deferring to the states—unless there is an opportunity to throttle state regulation in order to protect large corporations.
A federal statute enacted in 1976 gave the FDA authority to regulate medical devices and barred inconsistent state law.155 The Supreme Court and lower federal courts had harmonized state and federal law.156 In 1996, the Rehnquist Court held federal law did not block the application of generic state tort law to the negligent design, manufacturing, and labeling of medical devices.157 State regulation “with respect to a device” regulated by federal law would be preempted, but generic state law requirements would not be. As the Court put it in 1996, “it is impossible to ignore [Congress’s] overarching concern that pre-emption occur only where a particular state requirement threatens to interfere with a specific federal interest.”158 The 1996 decision found it “implausible” that Congress had intended to preempt state law remedies for those injured by defective devices.159 And the FDA agreed: “FDA product approval and state tort liability usually operate independently, each providing a significant, yet distinct, layer of consumer protection. . . . Preemption of all such claims would result in the loss of a significant layer of consumer protection.”160 The statute was designed to provide additional remedies, not to eliminate them.
The FDA, however, changed its view during the Bush administration,161 and the Roberts Court’s 2008 decision in Riegel v. Medtronic, Inc. almost entirely excluded state liability for negligence. The Court decided that the medical device statute excluded not only state law specifically aimed at medical devices but also state common law tort claims that stated a general standard of care broadly applicable to the behavior of almost everyone without regard to the kind of activity.
The Court’s opinion was written by Justice Scalia. Consistent with his aversion to legislative history, the opinion states that “the only indication available [to understand congressional motives is] the text of the statute.”162 But the Court wrote that if it were to “speculate,” the “text of the statute [] suggests that the solicitude for those injured by FDA-approved devices, which the dissent finds controlling, was overcome in Congress’s estimation by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations.”163 In Riegel, the Court found the company was not responsible when a Medtronic catheter ruptured in Charles Riegel’s coronary artery during heart surgery—it was not the company’s problem.
Again in Bruesewitz v. Wyeth,164 the Court eliminated liability for design defects of vaccines by holding that state tort remedies for negligence were preempted by the National Childhood Vaccine Injury Act of 1986. The Act provides: “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine . . . if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”165 The problem was the word unavoidable. The majority said they were unavoidable if they were the unavoidable consequence of the specific design of the vaccine.166 The dissenting justices argued that injuries were avoidable if a better design had become available.167 Again the result placed the burden on individual victims and protected the companies.
And in Pliva v. Mensing,168 the Court exempted makers of generic drugs, which account for 75 percent of prescriptions dispensed nationwide, from state law for failing to warn customers about risks associated with their products.
Each of these cases changed existing law in favor of the companies and left those injured to bear the costs of manufacturer error. In each case, the Court’s explanation focused narrowly on ambiguous statutory language and treated Congress as trying to protect the companies, not the victims. None of those statutes were adopted at a time when congressional indifference to victims was a likely intention, on the part of either national party.
The Court also cut off liability by those who aid and abet securities fraud. Securities law requires a set of disclosures to purchasers of stocks and other securities. Those who aid and abet securities fraud take actions that make it possible for the corporate issuer to make the misstatements that mislead investors. In a famous opinion early in the twentieth century, when a similar problem arose in tort litigation, then Judge Cardozo held: “If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. . . . If he is negligent, where danger is to be foreseen, a liability will follow.”169 The rule he stated in MacPherson v. Buick, has been fundamental to American law since. But not, the Roberts Court holds, to securities law.170 Stoneridge Investment Partners bought Charter Communications stock. Charter, to keep up the price of its stock value, engaged in sham transactions with defendants Scientific-Atlanta and Motorola. But the investors could not sue those companies for participating in sham transactions, the Court announced, because they did not say anything to the buyers of the stock. In an internal battle within the Bush administration, the Treasury Department succeeded in preventing the Securities and Exchange Commission from submitting a brief to the Court. The Court’s decision then overruled the SEC.171
In 2011, the Court went further, holding that, no matter how extensive their role in producing the false statements, investment advisors and managers cannot be sued for fraud by misled investors because only “the person or entity with ultimate authority over the statement” is the “maker” of the statement and responsible under rule 10b-5. Once again a narrow technical reading of a remedial statute left it toothless.172 Once again, the Court simply discounted congressional concern for the victims of those manipulations.
Early in the twentieth century, before the securities legislation passed in the 1930s, the financial market was a kind of Wild West. As schemes have become more sophisticated, the Roberts Court has supported those who make such manipulations possible. Stoneridge may have been able to sustain the loss. But the principle extends to all investors.
In mid-June 2007, Credit Suisse Sec. (USA) LLC v. Billing responded to a challenge to the way initial public offerings are sold, that is the sale of stocks not previously available to the public. In a decision by Justice Breyer, the Court concluded that sales by teams of underwriters working together made sense. The Court protected them by deciding that the securities laws supersede the antitrust rules, thus blessing collusion among dealers.173 Only Justice Thomas dissented, arguing that there was no need to “decide whether the securities laws implicitly preclude application of the antitrust laws.”174 Justice Stevens suggested that the challenged practices probably made no difference and would not run afoul of the antitrust laws; and he too thought the collaboration among dealers productive. Thus eight of the justices apparently believed that the seller is entitled to a price that would be ruined by competition—a somewhat odd conclusion for anyone who actually listens to reports of market swings. Stevens objected only to the Court’s approach of creating a pass around antitrust considerations.175
In other cases, the Court removed corporate incentives to comply with the law, including the obligation not to be reckless toward others.176 Justices Scalia, Thomas, and Ginsburg had dissented from decisions holding that the due process clause imposed narrow limits on punitive damages.177 Punitive damages traditionally took the profits out of—and discouraged people and corporations from—particularly bad behavior. The jury thought such damages well deserved in the case of the infamous Exxon Valdez spill of millions of gallons of crude oil into Prince William Sound after it ran aground on a reef. The Roberts Court decided that a much smaller smack on the hand was all that due process would allow. It restricted punitive damages for the Exxon Valez to no more than the damages awarded to compensate victims for their physical, personal, and financial injuries. In the future, corporations would be able to calculate the cost of ignoring their responsibility to the people around. As the Court put it, the “real problem, it seems, is the stark unpredictability of punitive awards,” even though the Court noted that, according to the evidence, juries “show an overall restraint.”178
Consumers beware. Antitrust litigation is fought by business against business. Arbitration law affects everyone. Many of the agreements we are required to sign—for consumer purchases, credit cards, even employment agreements—specify arbitration and provide for the forum and the arbitrators that the seller, charge card company, or employer have chosen. Nominally the agreement binds both sides. But by the choice of forum and decision makers, the likelihood that a contract can be mutually binding can be shifted radically. That is a major reason we are required to sign so many of those agreements. By keeping the cases out of the courts and making it very difficult and prohibitively expensive to hold corporations liable, we end up with rights without remedies, and encourage corporations to thumb their noses at the law.179
The Federal Arbitration Act makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”180 It was passed in 1925 but the decisions of the Roberts Court have given it new and unexpected life. The Court sends all issues in all contracts with an arbitration clause to the arbitrator unless the issue relates solely to the making of the arbitration clause itself. That interpretation largely reads the savings clause out of the statute. The Roberts Court has used it to take abuses, which would otherwise have invalidated contracts, out of the hands of state and federal courts.
In Buckeye Check Cashing, Inc. v. Cardegna,181 the Court decided that if contracts violate state usury laws but also contain an arbitration clause, state courts cannot hold the contracts unenforceable but must send them to arbitration. Although the usury laws applied to any and all contracts, they did not get the benefit of the statutory savings clause. Speaking through Justice Scalia, the Court held that “the contract’s validity is . . . [for] the arbitrator in the first instance.”182 Except to the limited extent that arbitration awards may be subject to review, the decision permits corporations to make an end-run around state restrictions in contracts of adhesion. No doubt arbitration is cheaper in many instances than litigation through the courts, but it also limits the force of state rules in ways that may make the transactions far more oppressive. This is particularly true with respect to contracts of adhesion, that is, standard form contracts of the kind that most people are constantly told to sign for the goods and services they want. Judicial judgments about the terms of such contracts change what corporate lawyers write into standard contracts, so that their companies can evade statutory requirements and shift risks from companies to consumers, or, in the language of economists, externalize the costs of company behavior. Buckeye may have added to wealth at the top of the social pyramid, but at the cost of fairness to everyone else. One cannot help but wonder whether recent judicial opinions that weakened state usury laws contributed to the downturn in credit markets because too many borrowers were unable to maintain payments at usurious rates.183
The court tightened the rules for class actions and made it easier for companies to do away with class actions entirely by using form contracts in cases involving the nation’s largest private employer, Wal‑Mart, and its second‑largest cell phone company, AT&T Mobility.
In AT&T Mobility LLC v. Concepcion,184 the Court decided that a form waiver defeated California law, which made provisions barring class actions illegal in most consumer contracts involving small sums of money. California had found them unconscionable, a legal term for fundamentally unfair. Unconscionable contracts are unenforceable in California as in most states.185 But the Roberts Court did not give California the benefit of the savings clause. “[Justice Breyer’s] dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system.” The Court decided that whether or not class actions are a “desirable” option is “unrelated” to its conclusion that class actions are “a procedure that is inconsistent with the FAA.”186
Two months after the AT&T case, the Court held that a gender discrimination suit could not be prosecuted against Wal-Mart.187 The Court decided that differences among the class members did not permit their suing together even though the discrimination they attacked was common to all the women employees. The issue underlying the Court’s 5–4 split was how to prove discrimination. The Court has insisted on proof of intent since 1976 in constitutional cases, has interpreted or blocked other statutory methods whenever possible, and has been almost completely unreceptive to statistical, circumstantial, or, indeed, any other proof of discrimination.188 Showing intentional discrimination in a company with alert legal counsel will prove almost impossible without the statistical evidence that the Court disdains. Since the Wal-Mart case was statutory, the Court could not insist on proof of intention but did the next best thing by effectively demanding individual proof, finding the Wal-Mart claims too different to justify putting them together in a class action. The same solicitude for the corporate employer that shows itself in the arbitration cases reinforced the result in Wal-Mart. The decision forces plaintiffs into costly and duplicative individual litigation without the ability to pool resources. Once again the Roberts Court shut the courthouse door in favor of major corporate defendants.
Workers beware. In 14 Penn Plaza,189 the Court decided that a union can waive employees’ right to sue under antidiscrimination statutes. Employees sue individually when their unions have refused to represent them and may have adverse interests. Indeed the discrimination statutes, which are much more recent than the Federal Arbitration Act, authorize suits against unions.190 Thus the fact that the arbitration is controlled by the union and the employer presents the employee alleging a statutory discrimination claim, with an arbitration chosen by a judge interested only in the defendants. In earlier decisions, the Supreme Court had concluded that employees could not be compelled to take their discrimination complaints to arbitrators but had a right to the statutory judicial forum.191 The statute remained unchanged but the Court abandoned those earlier rulings and adopted a policy preference for arbitration. In 14 Penn Plaza the majority referred to “our current strong endorsement of the federal statutes favoring this method of resolving disputes.”192 As Stevens noted in dissent, “The Court’s derision of th[e] ‘policy concern’ [favoring individual rights] is particularly disingenuous given its subversion of . . . [a prior] holding in the service of an extratextual policy favoring arbitration.”193
The arbitration cases by themselves do considerable damage to ordinary Americans. But the Court does not stop there. In Ledbetter v. Goodyear Tire & Rubber Co.,194 a 5–4 decision, the Court overruled the “paycheck accrual rule” in discrimination cases. Prior to Lilly Ledbetter’s suit, failure to pay women what men were paid for the same work was treated as a continuing violation. Ledbetter asserted that some years prior she was given a smaller raise for an increase of responsibilities than men got. Subsequent raises were based on a percentage of salary. So the original discrimination was multiplied in subsequent raises. None of this was revealed to her, of course. When, years after this had begun, she found out what had happened, she brought suit. But the Court said it was too late. The discriminatory decision was too old to litigate and the subsequent raises were not discriminatory. So Ledbetter had no cause of action. In effect, the majority required people who have been discriminated against in the wages they are paid to sue within half a year of the initial discriminatory paycheck. Justice Ginsburg had experience in discrimination litigation and wrote, in dissent, that it is rare for a plaintiff even to be aware of discrimination at this stage. The result of this reinterpretation of the statute therefore prevents most litigation over pay differentials. Once again the Court sacrificed fairness for a rule that protects employers against litigation. The corporation would benefit but the employees would not until Congress amended the statute.195
Barely two weeks later, the Court decided Long Island Care at Home, Ltd. v. Coke,196 a unanimous decision written by Justice Breyer. The decision excluded employees of home health care agencies from coverage under the Fair Labor Standards Act, including minimum wages and overtime. The statute excluded people “employed in domestic service employment to provide companionship services for individuals . . . unable to care for themselves” from coverage.197 At issue was whether the exclusion of “domestic service” extended to employees employed by third parties, that is, agencies that contracted to provide the services needed. The Court held that the Department of Labor was authorized to exclude this class of workers. It should be noted that the exclusion of domestic service and agricultural labor in the original 1938 statute before the amendment at issue in Long Island Care at Home meant that blacks were largely outside the protections of social security, the minimum wage, overtime, and other provisions of the Fair Labor Standards Act, an exclusion that has only partially been remedied over the years since.198 Despite the unanimity of the Court, the distributive consequences are clear.
The following year, the Court decided in favor of a Chamber of Commerce challenge to a California statute that prohibited state contractors from using state funds “to assist, promote, or deter union organizing.”199 Restrictions on the use of public funds by private organizations are not uncommon. But the Court held that sixty-year-old provisions of the National Labor Relations Act generically protecting the speech rights of labor and management preempted California’s effort.
Whistleblowers need to beware of government promises. The Court discouraged people who see that the government is being defrauded from getting that money back for the government. In Schindler Elevator Corp. v. United States ex rel. Kirk,200 the Court refused to let a private litigator reap the reward for helping the government get its due under the False Claims Act. Daniel Kirk had worked for Schindler and had been alert to false claims by the company. To check on his intuition and document the abuse, the Kirks made Freedom of Information Act (FOIA) requests for documents that should have been filed by the defendant. The absence of the documents they sought for some years and their scarcity in other years, revealed the defendant’s failure to provide required opportunities for veterans. Kirk sued on behalf of the government for the value of the noncompliance. The Roberts Court decided that the government FOIA response regarding what documents were on file amounted to a government report. Private litigants are not permitted to claim a share of the amount collected on behalf of the government based on government reports. The Court interpreted the statutory term report to include a response to a FOIA request. Because he was relying on the government report, namely, the answers to the FOIA requests, Kirk could not collect a share. Dissenters pointed out in vain that this was Kirk’s work, not a report that would have been generated without his effort. Having used a discovery device to back up his belief, he was disqualified. From now on, the government may have to do without the services of private litigants who investigate their claims in official records before filing suit.
* * *
Markets are defined by law. Economists tell us that the benefits of a market economy depend on true competition, protections for participants, effective remedies for breach of contracts, reasonably available information, and a floor of requirements so that the product of the market is not more damaging than beneficial to the community, third parties, and the participants. Law can turn markets into engines of theft or human happiness.
Decisions like Long Island Care, Ledbetter, and other class action, antitrust, product liability, and arbitration cases change the way the market works; they also shift resources from ordinary wage-earning individuals to corporate enterprises, and risks toward individuals. All these decisions change the floor on which ordinary people are compensated and the value of their income. Minimum wages, conditions of employment, and consumer protections represent social judgments about the proper distribution of resources. The basic concept is traditionally republican—that resources have to be distributed for republican government to survive and function properly. It is both about the fortunes of those at the minimum and the fortunes of the rest of society, because the economy, like the law, is a seamless web and the bell, inevitably, “tolls for thee.”201 As with the objections that slavery depressed everyone’s wages, so also, whatever floor society puts under employment and commercial relations affects everyone, and affects the distribution of resources. For the same reason there is no “natural” level for wages or well-being.
Decisions like Stoneridge Partners and Credit Suisse assist the movement of profits into finance from other parts of the economy by reducing liability and making it legally easier and potentially more lucrative to sell securities that embody large risks both to the unwary and to society caught in the financial whirlwinds. They contribute to the hollowing out of the American economy by protecting speculation over production and services.202
These decisions appear less damaging when looked at individually. In combination, the Roberts Court’s rewriting of the rules of the market make it difficult to hold financial and other corporations accountable. The Court claims its decisions were required by clear statutory language. Dissenters saw other meanings closer to congressional intentions. More important, these cases in combination shift the distribution of American wealth further from the people at large as employees and consumers.
Since Lipset’s groundbreaking work more than half a century ago, political scientists have been warning us that growing disparity that makes dictatorship more likely and stacks the deck against democracy.203 As the Court rewrites the rules of the economy, it increases the risks. As its decisions make more people desperate, more people become available for dangerous, nefarious and violent enterprises.204 As fewer people become more powerful, it becomes easier for the elected branches to ignore the populace in favor of a smaller group of powerful supporters whose loyalty can be bought—the classic opportunity for dictators to shape kleptocratic states for their own and their friends’ benefits.205 As the Court’s decisions concentrate wealth they increase the stakes for rich and poor alike, ultimately threatening a showdown over democracy.206
In a dramatic pair of rulings, the Roberts Court reversed the Court’s prior Second Amendment jurisprudence. The initial decision, addressed regulation by the federal government and the District of Columbia. In District of Columbia v. Heller,207 it upheld an “individual-rights interpretation of the Amendment,” to which it gave clear but not unlimited support. It held that the Second Amendment protects weapons “typically possessed by law-abiding citizens for lawful purposes,” including “handgun possession in the home” kept “operable for the purpose of immediate self-defense.”208 Addressing public safety, the Court preserved an unspecified “variety of tools for combating” “handgun violence in this country.” The second ruling, McDonald v. City of Chicago,209 held “the Second Amendment right is fully applicable to the States.”210
Although the Court touched on it only briefly, it confirmed the public right to prohibit “private paramilitary organizations,”211 “bodies of men [who] associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.”212 Historians and political scientists see great risks for democratic governments in arming their peoples, especially in paramilitary organizations. Public ability to ban and control “private paramilitary organizations” was a significant issue when the Fourteenth Amendment was adopted and for several decades thereafter because of groups like the KKK which preyed on the freedmen for various purposes.213 And the Court’s distinction of the individual rights at issue in Heller from the legitimate prohibition of private paramilitary organizations is significant, although the impact may be hard to separate.214 The Court’s decisions seem to have unleashed considerable gun and ammunition purchases, as well as saber rattling at political and other events that go well beyond what the Court protected and seems to have intimidated legislators and government agents.215
The Court’s focus was individual, on the ability to defend oneself and one’s home and family. Battles over the service of warrants at Ruby Ridge and Waco, over rules for use of federal land, bombings like Oklahoma City, and stockpiles of weapons amassed by some of the groups involved, raise the question what those groups, militias, and their members, individually and collectively, are entitled to have. Surely they will take advantage of whatever the rest of us are entitled to have. Warrants at Waco were about weapons violations. Keeping the peace is a much more complex problem than telling everyone to defend themselves. Indeed, if Steven Pinker is correct, we owe our longevity to the surrender of arms and interposition of neutral arbiters.216
It’s not clear whether the Court’s Second Amendment decisions have any impact yet on America except ideologically. On the other hand, ideology is not chopped liver. Obviously, the story is to be continued.
Lawyers and scholars like to talk about whether the Court prefers the states or the nation, is for federalism or against it. The Court itself talks about federalism in only a small portion of the cases in which it has to choose. This Court preempts a great deal of state law which makes it seem nationalistic. But the question here is not whether these nine justices like federalism. We are concerned with their impact on our democracy.
What political scientists call a “pacted” constitution, one that embodies an agreement between powerful opponents to submit their futures to a common government,217 requires a court to stick closely to the language and specific intentions of those who participated in the agreement. Any other reading could jeopardize national unity and democratic government. That need fades as the constitution ages because the specific bargains begin to lose their relevance and new problems arise.
The American Constitution was originally a pacted Constitution, involving significant and necessary bargains between the slave and free sections of the country, among other bargains. As the Civil War approached, the effort to honor the original bargain, or do even more for the proslavery states, turned out to be as ineffective as it was inhumane.218 The original bargain, particularly those elements affected by the existence of slavery, had no real relevance after the Civil War and the Reconstruction Amendments. And therefore, from the perspective of political science, tight focus on eighteenth century specifics contributes little to the stability of contemporary democracy or unity. If anything, honoring that proslave past may encourage more contemporary violence.
Federalism would have had an important role in keeping the country together under a democratic government in the early years of the Republic. The current conservative majority works from close textual readings of the language as they believe it would originally have been understood two centuries ago, as applied to eighteenth century problems, and then makes analogies to contemporary issues.219 From the perspective of protecting democratic government, the need to interpret the Constitution that way had waned and other issues and influences became more important by the time of the nationalistic heyday of the Marshall Court.220
Federalism can contribute to democracy by making it more efficient. There was a period in the nineteenth century when the Court looked at problems to see whether they could best be resolved at federal, state, or local levels and sent them to the level of government that appeared best able to handle them.221 From that perspective it could be helpful to understand the division of powers in light of the purpose communicated to the Committee of Detail, to give Congress power to deal with issues beyond the capacity of the states or where the states came into conflict. That perspective on original history has been clearest in dissent on the Roberts Court.222
Mutually exclusive authority can make problems unsolvable.223 They can be structurally unsolvable because state jurisdiction stops at state borders. So, for example, in the Obamacare case, Massachusetts could not keep uninsured patients from other states out of Massachusetts’s hospitals.224 And problems can be politically unsolvable because what even strong majorities want to do at either national or state levels can be impossible at the other. The Roberts Court’s approach to the allocation of governmental powers, however, has been textual and conceptual rather than pragmatic. It addresses which level of government has the power without consideration of whether they are or should be frustrating majorities of state or nation. Its version of federalism, therefore, is not about governmental efficiency.
Federalism as a check and balance can empower the federal government to limit abusive behavior by the states or local government. The Roberts Court certainly overrules state laws and decisions with some frequency; its role has been to protect corporations from state efforts to curb abuses.225 Federalism could be employed to empower the states as a staging ground for opposition to federal action.226 But the unnecessary designation of mutually exclusive authority weakens the states as staging ground for opposition. The Roberts Court preempts state law even when state law supplements national statutes, and had previously been read as consistent with federal law. So, contrary to the history of federal statutes in the medical field, which were written to fill gaps left by the states, the Court concluded that state law treated corporations too harshly and preempted it.227 The Court bars federal power even when the states argue in favor of the national government. Thus for example, the Court insulated private individuals from federal regulation in Rapanos despite state lack of objection.228 In fact state officials told one of the private developers to cease and desist, objected to the proposal by the other petitioners, and joined thirty-two other states in urging affirmance in favor of federal regulation.229 Roberts Court federalism certainly functions as a limitation but not as national-state checks and balances.
Federalism could maximize local self-government, thereby allowing the people of several states to reach their own solutions. Other than where it conflicts with the needs and desires of a national majority or violates individual rights, local self-government allows people to feel more in control and to tailor policy to their own preferences. But the Roberts Court does not seem to support that goal. It overrode state statutes that made contracts illegal, so that corporate lawyers could block state and federal judges from passing on their companies’ illegal, sometimes criminal, practices, and give those cases to company-selected arbitration programs.230 It decided that states could not stop companies from putting language in ordinary consumer contracts that excluded class actions in the courts, and the Roberts Court then blocked states from requiring the availability of class arbitration in any contract for arbitration.231 None of those decisions were in support of local government in an area of law that had been governed by state law since the beginning of the republic.
The major concern of political scientists with respect to federalism is the possibility that federal boundaries will spark sectional divisions that can tear nations apart.
Federalism can undermine democratic government by geographically intensifying differences, turn them into animosities and provide the basis of separatist movements and civil wars which do a great deal of damage. Conversely, federalism can help consolidate and protect democratic government by working as an escape hatch for tensions that would otherwise destroy the government or the country. It can allow people to come together with a promise of local rule, and often does. As political scientists look at federalism, the problem is that it can easily do either.
It’s not clear whether the Court should consider the general fear of sectional antagonisms discussed in the political science literature or attempt to cool down public reaction to its decisions. Disagreement is part of democracy, and for a court to respond to concern about public reactions means, almost by definition, to consider rejecting human rights. Fear of the consequences could just give the courts an excuse to protect fewer rights than they do now. The difference between using federalism as a safety hatch and applying the Bill of Rights—and being more careful about the ways that businesses try to take advantage of the powerless—is that the safety hatch idea is vague, unclear, and largely perverse. Allowing the states to act as escape hatches for the strong feelings on contentious issues could have been used as an argument that federal courts should have declined to get into any of the social issues of the last half century. The most prominent exercise of the effort to use Supreme Court decisions to cool tempers in disputes among the states were the proslavery decisions of the pre–Civil War Supreme Court—hardly an example to be followed.
Nevertheless, as will become clear, the Court does look at the effect of decisions on public tempers and the possibility of violence, at some times more intelligently than others. And one of the quirks of our political system, is that deciding in favor of the states, which would seem to relieve pressure on the nation, makes organizing easier, and thus decisions in favor of state power can actually heat up an issue instead of cooling it down. Social issues are the major area in which passions rise high. The Court addressed both segregation and abortion long before the Roberts Court. Both presented strong moral issues. Plainly federalism and sectional antagonisms are not the only considerations for judicial action.
In the case of segregation, cooling tempers should not have changed the result both because it was morally right and for reasons of national unity. The issue was festering; neglecting this issue made it worse, encouraging violence and considerable sectional strife. Foreign diplomats, visitors, and many Americans avoided the segregated states for both personal and business trips. Despite continuing political divisions between the formerly segregated states and much of the rest of the country, there is good reason to believe that the nation is much more integrated than when the southern states were allowed to maintain their “peculiar institutions.”
Even so, the deal struck between Chief Justice Warren and Justice Reed that the Court, in Brown, would not require immediate desegregation of the schools, was about inflaming tempers in the North and South and the likelihood of violence. The segregated states were not democracies, most prominently because a large portion of their population was excluded from every aspect of democratic governance. Passions over the issue of race led to Civil War a century earlier. Both the Court and the NAACP did think about the reaction. The NAACP thought about it in planning the lengthy legal campaign that led to Brown, and in their internal discussions about whether it was too soon to try to overturn Plessy. The Court thought about it in its resistance to overturning Plessy until the right time, defined internally by unanimity on the Court and externally by the change in American culture in the years before and after World War II.232
As dramatic as Brown was, it came at the end of a series of decisions over a period of decades, and the delay before mandating desegregation not only gave the defenders of segregation a chance to organize but also provided the rest of the country with the opportunity, through demonstrations and media coverage, to stare into the heart of racism and unite in determination to fulfill the command of Brown.233 Warren knew what he was doing, although it took the heroics and sacrifice of many to fulfill that part of the dream.
In the contemporary world, the Roberts Court’s continuing battle against any deliberate effort to mix students across racial lines cools no serious threat to democracy or national unity. Prohibiting local, voluntary community-wide efforts, as it did in Seattle and Louisville, seems an unlikely path to managing conflict. Conversely, prohibiting efforts to mix the populations preserves the problem, the issue, and the heat in intergroup relations.234
The abortion issue is somewhat different. Although it was a hot issue before Roe v. Wade, and will continue to be, Roe made what had been handled locally into a national issue. Justice Ginsburg has famously argued that the Burger Court should have decided Roe much more modestly, just declaring the extreme statute before the Court unconstitutional, and not imposing the three-trimester system that it did. That would have allowed a more liberal system in New York than in Texas, may have resulted in less tension over federal judicial power, and might well have led to the development of more liberal abortion law across the nation.235
Justice Ginsburg’s suggestion that Roe should have been handled in a more minimal way is happening in reverse—the Court announced the right and has been retreating in the way she thought it should advance. Despite criticism of the Warren Court’s activism, the Burger Court did not appear to think about how boldly to announce its direction in Roe v. Wade.
While Roe has remained a national flashpoint, the Rehnquist and Roberts Courts backed the states in most of their efforts to limit abortions. When the Supreme Court rejected a state effort to prohibit an abortion procedure, the federal Partial-Birth Abortion Ban Act of 2003 was enacted to reverse that decision. In Gonzales v. Carhart, the Roberts Court backed up Congress’s decision. Thus the abortion issue has remained a national one though the states have retained considerable freedom to allow or control abortions.236
The changes in the constitutional status of women’s rights and sexual orientation took place gradually, more on the model of racial equality. That’s not to say that race, sex, and sexual orientation have reached full equality, but there have been significant strides. Bowers v. Hardwick, which rejected gay rights, spawned a great deal of national discussion. Romer v. Evans, a decade later, addressed only the extremity of not just barring behavior but barring all rights and protections. By the time of Lawrence v. Texas, nearly two decades after Bowers, the nation had time to prepare itself mentally and philosophically for the change. Marriage remained a flash point but the Court did not address it for another decade while Congress took a conservative position in the Defense of Marriage Act, setting a rule for recognizing marriage with respect to federal benefits and programs.237
In United States v. Windsor,238 nearly three decades after Bowers, the Court decided that it was unconstitutional to refuse to recognize marriages that were valid under state law. Following that decision, the federal government would honor same-sex marriages that were legal in states where they took place. The Windsor decision left part of the issue to the states, retaining only the federal implications of state marriages. It’s not clear that any resolution would have been either more or less inflammatory, but the involvement of the Court and Congress focused some intersectional anger. That may have contributed to a resolution—there are now national social standards regarding same-sex marriage, just as the nationalization of the issue of segregation in the media, the courts and Congress ultimately led to some national standards regarding race.
One should add that many issues have sectional dimensions, including economic, environmental, and regulatory ones. The Court nationalized the issue of decency several decades ago in pornography decisions that remind the right wing to this day that, from its perspective, the world went mad. The seesaw of decisions about the Establishment Clause also nationalized the role of religion and helped energize the so-called religious right. Conversely, the Roberts Court’s deference to the states on the funding of religious education, while important on other grounds, neither raises nor cools any serious anger.
The question is whether any of this matters. By themselves none of these issues raise the kind of threat that political scientists worry about coming from federalism gone awry. None will significantly roil the fabric of the republic. Still, the social issues examined here do tear at the heart of the country, significantly changing our way of life today from the way our parents lived and creating a great deal of heat. Those antagonisms do track geographic divisions, red and blue states, urban and rural, etc. These issues have repeatedly challenged the quality of our democracy, yet we continue to stumble on. Previous chapters explored the trends toward greater inequality, cracks to the melting pot, decline in the social capital it prepares, and the strong hatred and ideology now rallying around the Second Amendment. If these trends continue, the geographic organization of these issues can magnify the risks of rupture.
In each area that political scientists, historians, jurists, and legal scholars, both in the United States and abroad, have identified as crucial to the survival of democracy, the Roberts Court has been leading in the opposite direction. No one decision destroyed democracy the way Dred Scott contributed to the Civil War and damaged or destroyed the lives of the generation who fought in that struggle. But collectively, the Court is an influential institution, driving American institutions when those institutions are themselves unable to act.
Alexander Bickel argued that the Court may sometimes produce a better result by avoiding than facing an issue. He argued that the Court should cultivate “passive virtues,” that is, ways of avoiding intractable issues.239 The statute which gave the Court the ability to control its own docket made that somewhat easier since 1925.240 Bickel did not argue that the Court could never resolve an issue or act to protect democracy. He was clerk to Supreme Court Justice Frankfurter during the Court’s deliberations on Brown v. Board of Education and wrote a famous study of the intention of the draftsmen of the Fourteenth Amendment, concluding that the amendment did not exclude decisions like Brown.241 In Bickel’s view, the appropriateness of exercising judicial power needs to be addressed separately on each issue.
Some like Gerald Rosenberg have gone further than Bickel by questioning the power of the Court to change American life.242 That claim is global, as the title of his book implies, expectations that the courts can make a large difference is a “HOLLOW HOPE.” Rosenberg took on some of the major controversies in which the Court had been involved and argued that none worked. His evidence is that Congress and the Johnson administration did the crucial work. Because of their work, Rosenberg concluded that the courts did not matter.
Rosenberg overstated his case.243 Because little or nothing happened to desegregate the schools for a decade after Brown,244 when things did change, he argued it was because Congress and the president acted, not the Court. Historians and political scientists who try to quantify the impact of different institutions would certainly treat the actions of the executive and legislative branches as extremely important to what ultimately was achieved. But lawyers and most scholars would also ask a different question: would any of that have happened without the Court?
Rosenberg’s allocation of responsibility to the political branches alone treats politics as wholly independent of the Court.245 Those who lived through the era when the schools were desegregated, however, understood that the Court had changed the debate, the agenda, and the options.246 What some had treated as the South’s problem became illegal, thus adding impetus to the movement to end segregation—swaying some because the Court had declared the law—and making segregation a national problem. Congress was very much affected by the Court’s decision.247
When Presidents Eisenhower and Kennedy met resistance to the entrance of African Americans in Southern schools and colleges, the country rallied behind enforcing “the law” and ending the mistreatment they now watched on television. President Lyndon Johnson pushed for civil rights legislation in the wake of confrontations over the enforcement of Supreme Court decisions and those of lower courts carrying out its mandates. Court decisions and their enforcement are theater and the drama they put in play added to national readiness to end segregation. The fact that the Court mattered is also evident in the long conservative effort to take over the courts. Rosenberg’s specific skepticism about the importance of Brown looks wrong as is the general conclusion that courts cannot spawn important changes in society. Rosenberg was certainly correct that the actions of three presidents and Congress were all important—indeed necessary to the extensive desegregation that took place—but their importance does not eliminate the necessity of the Court’s actions as well as the importance of the lower federal courts, which acted in reliance on the Supreme Court’s directions in Brown and subsequent cases.
The impact of Brown and desegregation on society is a much more complex issue. There have been major reactions and pushback. It appears that large parts of the country are resegregating.248 And, as Michelle Alexander demonstrates in her book THE NEW JIM CROW, the criminal process has been abused to profile, discriminate, and incarcerate much of the African American male population grossly out of proportion to their participation in criminal activity as well as out of proportion to the ways white males are treated in similar situations. One result is that a large proportion of black males have been neutered in the competition for jobs, rebalancing opportunities in favor of white Americans and against those who would have been newly empowered African Americans but for the abuse of the criminal system.249 Alexander is by no means suggesting that Brown should have been decided in favor of upholding the old separate but equal doctrine of the 1896 Plessy decision. The end of Reconstruction in the courts and the withdrawal of the military from the defeated Confederacy empowered the KKK and other southern racists to terrorize and intimidate the African American population for a century.250 Black life before Brown was no picnic. Nevertheless, she demonstrates that a far larger proportion of the African American community has been incarcerated nationally after Brown than before it.251 That has been a disaster of enormous proportions, diverting some of what should have been the gains of the African American community into prison building, jobs for prison guards, and a large African American underclass.
Efforts to quantify the impact of courts on society in other areas are ongoing. The information available confirms both that courts, like other institutions, sometimes fail to handle situations well and that they frequently have a great deal of influence.252
The importance of many of the lines of decisions in areas related to democracy have been repeatedly confirmed even though the long-run impact is always subject to events and evidence yet to be unearthed. Courts have been involved in the issues crucial to American democracy since virtually the founding of the republic.253 Election issues have constantly made their way into the courts, and decisions about how to count votes have determined elections.254 Only the possibility that courts might decide those issues in favor of inclusion and equality makes some people question the appropriateness of judicial power.
The Supreme Court voting rights and white primary decisions played a crucial role in improving the quality of American democracy, although later civil rights legislation certainly did much to make those decisions more effective. The Court required and got reapportionment on the one person one vote standard.255 Many others were involved but Court decisions were crucial in creating the opportunity for the work done by attorneys in the Department of Justice and for the many volunteer civil rights attorneys. The work of the Court was crucial for the organizers who went to courts to enforce the Supreme Court’s mandates, and who could encourage others to act by promising that lawyers dedicated to civil rights would back them up in court.
Reapportionment was a failure of state legislatures. Those legislatures had strong political motives not to make changes unless forced because change would imperil the party in power in the state legislatures and the representation of their party’s interests in Congress. Since the founding of the republic, reapportionment was sporadic, delayed, grudging, and incomplete. It is impossible to imagine the regular reapportionment after each decennial census that has become customary after the work of the Warren Court without the intervention of the courts.
The courts have always been deeply involved in defining rights to the American economy, and their decisions have been implicated in such major economic events as the housing bubble and the deep recession that began in 2008.256 The importance of the courts and legal rules in permitting development257 and sustaining robust markets is assumed in business contexts.258 The very ordinariness of the Court’s economic decisions obscures its impact on the shape of the economy. Litigants spend large sums to get the decisions they want and, as Marc Galanter explained in a classic article, the very fact that large corporations are repeatedly in court allows them to invest in fighting for precedents that have greater value than any individual case.259 Steering the rewards of the economy away from ordinary Americans and toward those who control large commercial and financial institutions increases the latter’s power as well as the stakes.
A common objection is that courts cannot successfully and properly deal with distributive justice, in light of the powerful control by other political actors over distributive issues. Nevertheless, courts matter even with respect to distributive justice.260 In fact, the role of the courts in shaping the economy has a large impact. They provide one of the important “forms of government regulation, the judicially fashioned common law and state regulatory practices.”261 State and federal courts have helped to shape public discussion of economic issues in their respective jurisdictions by their interpretation of state and federal statutes and constitutions.262 Courts have an impact by what they forbid or discourage,263 by what they embolden and legitimate,264 and by the extremes they allow or encourage.265 In effect the courts are an important cultural and political institution; although they do not control culture or politics they nevertheless are a powerful force in shaping both.
The Court raises the stakes with its divisive approach to race, schooling, and support for gun rights, which also increases the likelihood of conflict taking a violent turn. All are areas in which longstanding judicial decisions are at the root of current controversies.266 The Roberts Court’s rejection of many of the principles of the Bill of Rights, the Reconstruction Amendments and the structural principles of the Constitution leaves democracy without the safeguards most Americans assume. The internal evidence in each of these areas suggests judicial power: litigants fighting over decisions as if a great deal depends on them; subsequent cases arriving at all levels of the court system addressing the meaning of Supreme Court decisions; and the decisions themselves about the ways that important institutions, public and private, function. And externally we can track levels of compliance and noncompliance in many of these areas, like apportionment and desegregation. Support for the Court’s work and compliance with it varies geographically, by segments of the population and the economy and over time. The Court is not omnipotent, but neither is it pathetic in impotence.
To the extent that the Court makes a difference, the Roberts Court’s rejection of democratic values is a serious problem. Like many human dynamics, movements can be self-reinforcing, or they may be met by opponents. But clashes over fundamental democratic values are dangerous. Ultimately, the fear of the political scientists and historians who have studied the breakdown of democratic institutions is that as the stakes get too large, people’s willingness to stand down peacefully shrinks. The Roberts Court is heading in the wrong direction.