Student Note Preview: Political Question Doctrine in Zivotofsky v. Clinton

Carol Szurkowski provides a preview of her student note in the current issue (Volume 37, Issue 1) of the Harvard Journal of Law and Public Policy:


In 2012, the Supreme Court decided Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, in which it held that the political question doctrine could not be invoked to dismiss a suit involving the question whether an American citizen born in Jerusalem can enforce his statutory right to have “Israel” listed as his birthplace on his passport.  Chief Justice Roberts’ opinion for the Court was remarkable for its omission of any mention of the six-factor test introduced in Baker v. Carr, 369 U.S. 186 (1962), which has served as the touchstone for lower federal courts’ political question jurisprudence for the last half-century.  Especially in light of the fact that Justice Sotomayor’s concurrence, Justice Breyer’s dissent, and the D.C. Circuit opinion below all made much of the Baker six-factor test, this omission must have deliberate.

Why is this so significant?  Primarily because, since Baker was decided, lower courts have been using its test to avoid deciding some of the most sensitive foreign affairs questions of our day.  In particular, they have been relying on the final three factors of the test, which embody prudential considerations that are not drawn from the text and structure of the Constitution, to grant these dismissals.  In this note, I argue that Zivotofsky should largely put a stop to these prudential political question dismissals, forcing the courts to decide the questions that the Constitution has committed to their determination and returning the political question doctrine to its classical, text- and structure-bound roots.  With his statement that resolving sticky and sensitive questions such as that presented in Zivotofsky is “what courts do,” Chief Justice Roberts effects a Marbury-esque reclamation of the judiciary’s prerogative and duty to decide even difficult questions that have been committed to its resolution.


Read the entire article at: 

David Rivkin & Lee Casey on the Recess Appointments Case

In this morning’s Wall Street Journal, David B. Rivkin, Jr., and Lee A. Casey preview Noel Canning v. NLRB, a case to be heard in the Supreme Court this month concerning three appointments made by President Obama two years ago while the Senate was in pro forma sessions:

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

While this challenge to presidential power touched off considerable controversy, some political observers say that the recess-appointments issue will fade because Senate Democrats recently did away with the traditional filibuster rule, requiring a “super-majority” of at least 60 senators to allow a contentious nomination to proceed to a vote. This rules change, however, does not moot Noel Canning v. NLRB or the issues it raises. Indeed, limiting filibusters will only grease the wheels of a nomination when a Senate majority approves of a particular nominee.

Even when a president’s own party controls the Senate, there are individuals who for one reason or another cannot get the nod. For example, a nominee unacceptable to his or her home-state senator can be subject to a “hold”—a still-respected senatorial courtesy. Recess appointments are not a proper means of avoiding such roadblocks.

The Constitution’s Framers considered and rejected the notion that the president should be able to staff federal offices without congressional oversight. That’s why the president must have Senate “advice and consent” for the most important appointments. As Alexander Hamilton wrote in Federalist 76, the Senate’s participation “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

The Framers believed that vesting the entire appointment authority in the president would have made him too powerful, contrary to their key goal of safeguarding individual liberty by dividing power among the three branches of government.

The need for a presidential power to make recess appointments arose from the assumption that Congress would meet infrequently and that there would be long periods—running to many months—when critical federal offices might remain vacant because the Senate was unavailable to discharge its advice and consent function. Recess appointments are a necessary exception to the normal appointments procedures, but they are an exception.

In more recent years, however, as attitudes in Washington have hardened and become more ideological, presidents of both parties have used recess appointments to put individuals in office who the Senate either had already refused to confirm or would likely turn down if given the chance. Such individuals may serve for up to two years. Although presidential frustration may be understandable, since many nominees never even get a Senate vote, overcoming this roadblock is not the constitutional purpose of recess appointments.

To avoid being in recess, Senate Democrats began to hold pro forma sessions in the last years of the George W. Bush administration. These involved tasking, by unanimous consent, one senator from each party to “convene” the Senate for brief periods in order to “receive” presidential nominations. These pro forma sessions are not fundamentally different from the way the Senate routinely conducts its core legislative business, which also can involve passing bills by unanimous consent with few senators in attendance.

Mr. Obama made the appointments that are being challenged in Noel Canning during one of these pro forma Senate sessions. The president determined that for the purpose of considering his nominees, the Senate was not properly in session because, according to White House Counsel Kathryn Ruemmler, the Senate was “unavailable to fulfill its function.” This, of course, raised another critical constitutional question, since the Constitution vests each congressional house with the power to determine how to operate.

Permitting any president to resolve when the Senate is or is not in session upsets the constitutional balance of power among the executive and legislative branches even further. Most dangerously, a president could potentially claim that the Senate was not “in session” when certain legislation was enacted, and then refuse to enforce it on the grounds that it was invalid.

The specific issue of pro forma Senate sessions was not addressed by the lower court. But given the key constitutional prerogatives involved, the Supreme Court asked lawyers representing Senate Republicans to participate in the oral argument. This signals that the court may determine the extent of the president’s recess appointment power and decide whether the Senate’s power to determine its own rules precludes the president from questioning the constitutionality of the pro forma sessions.


The Supreme Court should affirm the court of appeals, limiting recess appointments to filling vacancies actually arising during a true Senate recess, and decisively rejecting the Obama administration’s position that the president can determine when the Senate is or is not in session regardless of the Senate’s own view. This will restore the proper separation of powers between the two political branches that the Framers clearly intended.

Seven Score and 10 Years Ago…

Here at the Roundtable, we attempt to hew closely to our mission of presenting conservative and libertarian musings on the intersection of law and policy, but there are certain days of reflection that call for a slight aberration.

There have been times in our history when an event is so significant that observers seek to commemorate the occasion almost instantaneously. This was the case on November 19, 1863. Not five months after the terrible and awesome Battle of Gettysburg, we gathered at a graveyard steps from the battlefield in Gettysburg Pennsylvania. Following a headline speech by Edward Everett (former President of Harvard, and alumnus), we heard a surprise two minute address–not speech— from a President whose mere election proximately caused the South’s secession. Greater historians and thinkers than I have provided a wealth of commentary and I encourage you to seek them out. Below are some other appraisals of today’s auspiciousness. But before reading the commentary, I think the most important thing to do on November 19, 2013 is to read the words spoken on November 19, 1863:

Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. We are met here on a great battlefield of that war. We have come to dedicate a portion of it, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But in a larger sense, we can not dedicate — we can not consecrate — we can not hallow — this ground. The brave men, living and dead, who struggled here, have consecrated it far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but can never forget what they did here.

It is for us, the living, rather to be dedicated here to the unfinished work which they have, thus far, so nobly carried on. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain; that this nation shall have a new birth of freedom; and that this government of the people, by the people, for the people, shall not perish from the earth.


After you’ve read and considered the words, I encourage you to look at some others’ commentary on it:

Bret Stephens (The Wall Street Journal): From ‘Four Score’ to ‘Yes, We Can!’

David Azerrad (The Heritage Foundation): Is Our Government Still “Of the People”?

Ken Burns: Learn the Address

USA TODAY (Video): Gettysburg Marks 150th Anniversary

Associated Press: Pa. Paper: Sorry for Panning Gettysburg Address

The Religion of Procedure

Though it may seem at odds with my intense patriotism, I spent the Columbus Day weekend in Paris, but—rest assured—my mind never strays too far from our topic on the Roundtable. On the flight back, I watched a few episodes of the riveting, thrilling, and smart HBO mini-series “Rome.” The show chronicles the transition from Ancient Rome’s republic to Julius Caesar’s dictatorship to his adoptive son’s reign as Augustus Caesar. I have seen the series many times before, but this weekend, one particular scene caught my attention in a new way.

To simplify the several complex plot lines, in the scene, the full Roman Senate sits with Consul Pompey Magnus presiding. The Senate is debating what to do about the renegade Julius Caesar and, in hard-line conservative Cato’s appellation, Caesar’s “illegal war.” Famed orator Cicero has calculated that if he leads his moderates to side with Cato’s anti-Caesarian resolution, Tribune Mark Antony will use his veto to prevent his patron and mentor Caesar from being named a public enemy. When Cicero votes, however, violence breaks out on the Senate floor, but the newly-elected Mark Antony, seemingly unaware of his veto power sits back smirking. Cicero, a procedural savant, calls to Mark Antony over the melee, who belatedly calls in his veto. When the fracas subsides, the presiding magistrate tells Cicero and Pompey that the veto was not counted because Mark Antony did not formally have the floor. Pompey scoffs at this, refusing to let Caesar’s status as a criminal be determined by a mere rule of procedure, to which the magistrate, with renewed energy responds that procedural rules are the most sacred in the republic.

What struck me about this scene was the mixing of religion and law. I subscribe to a view of the First and Fourteenth Amendments similar to that of Professors Akhil Amar and Noah Feldman, which does not require a strict separation of religious thought from local governments. Nevertheless, the notion that procedure could be of paramount religious importance had never before occurred to me—but even if it no longer carries the spiritual element, procedure is still supreme in American law. Indeed, where procedure is deemphasized, so too is the Constitution’s guarantee of “due process.” Thus, when thinkers opine on “The Little Rule Change By House Republicans That Guaranteed A Federal Shutdown,” the very essence of American law is attacked.

Procedural complaints arise often, and from the Right as well as the Left. And when advocates cannot win on the merits, seeking refuge in procedure can be a necessary element of zealous representation. Still, procedural rules are not subservient to substantive rights. Rules of procedure are never “little.” They are a double-edged sword that defends individuals from federal, state, and local governments in addition to fellow citizens. They did not descend from on high, but they are nevertheless foundational to a government of laws, and not men.

In Defense of Dictionaries

Law professors James Brudney and Lawrence Baum have a new study out on Supreme Court justices’ use of dictionaries in deciding cases. Perhaps not surprisingly to court watchers, they note that the justices almost never used dictionaries prior to the start of the Rehnquist Court, but now use them in as many as one-third of statutory decisions. Although textualist justices invoke dictionaries the most, purposivist justices are not far behind.

Although to the author’s credit, they recognize some proper use for dictionaries when they propose a plan “to develop a healthier approach to [the Court’s] dictionary habit,” the study is generally critical of the justices’ invocation of them. Brudney and Baum note that dictionaries “can confer a deceptive sense of objectivity and legitimacy.” Moreover, they note that justices will frequently cite only one dictionary in an opinion, but cite another dictionary in a different opinion, something they argue may be evidence of justices searching for a definition that might “fit a justice’s conception of what a word should mean.”

In addition to other studies that are critical of the use of dictionaries, judges have also noted problems with dictionaries. Richard Posner has written that “dictionary definitions are acontextual whereas the meaning of sentences depends critically on context.” Even Justice Scalia, the arch-textualist whose time on the Court has coincided with the increased use of dictionaries, wrote in his recent book on statutory interpretation that judges should “take care” when consulting dictionaries, and that certain dictionaries may not define words appropriately. Similarly skeptical of dictionaries are linguists, who tend to believe words lack fixed meanings and are always context-dependent.

But there is a proper role for the dictionary in statutory interpretation. We all use dictionaries in our lives, so we must believe they have some use and can shed some light on what the ordinary understanding of a word is. In writing this post, I consulted a dictionary to see if a certain use of a word was defensible. It therefore seems logical that a judge might consult a dictionary to see if a certain interpretation of a phrase is defensible.

If a judge can show his or her conception of the meaning of a word corresponds to one of its definitions in a dictionary, then it is at least plausible that the judge’s interpretation is correct. Moreover, if a judge consistently uses the same well-respected dictionary (yes, some appear to be more respected than others), he or she can hardly be accused of selectively using dictionaries. Although it might be incorrect for a judge to point to a definition of a word in a single dictionary as conclusive proof that the word means exactly what this particular definition says it means, dictionaries provide a rough approximation for society’s general understanding of what a word means. This can be extremely useful, particularly when interpreting statutes passed decades ago, given that contemporary society’s understanding of a word may be different from the understanding of prior generations.

Perhaps an example from a case can illustrate the potential problems with dictionaries, but also how they can be quite helpful. The statute at issue in MCI v. American Telephone and Telegraph Company gave the FCC the power to “modify” any of the requirements of the statute. The FCC used this power to get rid of a tariff requirement altogether for certain telephone companies. The question for the Court, therefore, was whether the FCC could reasonably interpret the power to “modify” a requirement as the power to get rid of a particular requirement.

Justice Scalia, writing for the Court, said no. One might think “modify” a somewhat vague word. The Court noted, though, that “modify” means to make small changes, not large changes. After all, Scalia explained, most dictionaries defined “modify” to mean, roughly, modest changes. The FCC, however, cited a single dictionary that included, among multiple definitions of “modify,” “to make a basic or important change in.” One might throw up one’s hands at this point and say this just shows dictionaries are subjective, or one can find the definition one wants if one simply looks hard enough at enough dictionaries. But such a reaction would be unwarranted. After all, the unusual definition was found in a single dictionary published forty years after the statute at issue in the case was enacted. If nearly every dictionary, including those from around the time of the passage of the statute, provide roughly the same meaning, then a drastically different interpretation of the word would be improper.

Judges may not have the time to consult numerous dictionaries in every statutory interpretation case. But dictionaries can at the very least prevent interpretations of phrases that are not at all grounded in the text of the statute. They also can provide a rough idea of what vague words mean (particularly since it seems likely that the legislature would consult a dictionary when determining what language to use in critical parts of a statute). Besides, anything that gets justices to focus more closely on the text of a statute has some benefit. Given their potential benefits and that every other tool of statutory interpretation is flawed, that dictionaries can be used inappropriately hardly seems a reason to not consult them at all.

The Election’s Effect on the Judiciary

Although the presidential candidates rarely discussed it, much ink has been spilled in recent months over the effect that the presidential election would have on the Supreme Court. Although often overstated, the effect is significant. To be sure, Justice Ginsburg is likely to step down during the next four years. Given Obama’s tendency to appoint fairly young justices, if Justice Breyer, 74, were to retire along with Ginsburg in the next four years, President Obama could install a sold liberal bloc of 4 justices that will all likely remain on the Court for decades. Had a Republican president replaced Ginsburg, he could have ensured a more robust conservative majority immune to the defection of an individual Republican appointee in a particular case. Perhaps Roe v. Wade would be overturned. However, although Obama’s reelection constitutes a lost opportunity for conservatives, it really just means that the status quo will remain in place. Justice Scalia, 76 shows no signs of major health issues, and has indicated he would not want to be replaced by someone who “sets about undoing everything I’ve tried to do for 25 years.” Justice Kennedy is also 76, but will likely want to remain on the Court beyond 2016 as well.
The major overlooked effect of the president’s reelection on the judiciary, however, is the effect it will have on the appellate courts. Although the Supreme Court remained fairly split, Republicans had changed the complexion of the courts of appeal. According to the Washington Post, by 2008, Republican-appointed judges constituted majorities on 10 of the circuit courts and Republican-appointed judges were represented in equal numbers as Democratic appointees on two others. But although Republicans controlled the White House for 20 of the 28 years between 1981 and 2009, by the end of 2016 the Democrats will have controlled the White House for 16 of the last 24 years. Although there are 179 circuit court judges (including senior judges), there are currently 15 circuit court vacancies. Numerous additional vacancies will undoubtedly arise over the next four years. Given that most of the nation’s legal battles take place at the circuit level, this is not insignificant.

Rehnquist and the Role of Proper Reasoning in Arriving at Results

John Jenkins’ recent biography of the late Chief Justice William Rehnquist has engendered anger from the right and even embarrassment from some on the left. The biography is titled The Partisan, but one could be forgiven for believing the title refers to the author rather than the subject. According to Jenkins, Rehnquist’s judicial philosophy was “nihilistic,” and “dismissive of…institutions that did not comport with his black-and-white view of the world.” Rehnquist, Jenkins tells us, yearned for “the simplicity of an earlier time when white men ruled.”
Although The Partisan does little to shed light on Rehnquist, it brings the former Chief Justice back into the public eye, thereby raising a question for conservatives today about the importance of the result a judge votes for versus the reasoning the judge uses to get there.
After all, Rehnquist had core beliefs about the judge’s role. He was a defender of states’ rights and a limited role for the government in the 1970’s, long before they became cool again. But Rehnquist did not have an rigid judicial philosophy in the way that Justices Scalia and Thomas do. Rehnquist was not a Textualist. He believed the Constitution limited the powers of the federal government, but he was not an Originalist in the mode of a Scalia or Thomas. Jan Crawford Greenberg wrote in her book on the Supreme Court that Scalia became disappointed that Rehnquist, toward the end of his tenure on the Court, seemed to care more about outcomes than reasoning. The two chiefs Rehnquist most admired were John Marshall and Charles Evans Hughes. Perhaps uncoincidentally, both were politicians before ascending to the Court.
Does Rehnquist’s reasoning matter, if he usually voted on the right side? Although one suspects Jenkins would have found a way to criticize Rehnquist regardless of his approach, the seeming lack of analytical rigor made it easier for many of Rehnquist’s critics to criticize him. Of course, the reasoning the Court adopts in an opinion can affect how future courts decide future cases. And if one believes that judges ought not be partisan, but instead use proper reasoning to decide the case in front of them, then reasoning matters a great deal. A judge is supposed to tell us what the law is, not what the judge wants it to be. To many conservatives, a major problem with the Warren and Burger Courts was not just that they handed down results abhorrent to them, but that the reasoning justifying such results was shoddy. If the reasoning of “activist” courts were bad, the antidote ought not be bad reasoning that yields a better result. Applying the law to a particular case, rather than instituting one’s social program, should be the role of the judge, and we should be skeptical of any judge who does otherwise, regardless of ideology.
That being said, if one is a conservative, one can feel good about Rehnquist. One might wonder if he receives too much credit for “steering the court to the right.” After all, would Scalia and Thomas vote with the “liberal justices” if, say, John Paul Stevens were Chief Justice? Just as Blackmun moved away from Burger over the years, maybe O’Connor would have moved further away from Rehnquist had he lacked the personal skills that made the arch-liberal Justice William Brennan call Rehnquist his “best friend” on the court. Moreover, his belief in tradition and slow change may have been appropriate for his era, as it paved the foundation for a more conservative court.
The lesson from Rehnquist is that reasoning matters, but overall view of the court in society and the ability to work with other justices matter, too. The court Rehnquist left was far from perfect, having handed down some poor precedents. But it was much better than the court Rehnquist joined.

Supreme Court Poised to Reduce American Involvement in Foreign Human Rights Cases?

Does a Founding-Era statute enable foreigners to sue other foreigners in federal court for conduct that took place overseas? That was the question facing the Supreme Court yesterday when it opened its latest term with arguments in Kiobel v Royal Dutch Petroleum.

A 1789 statute, the Alien Tort Statute (ATS) states, “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute presumably was passed in order to allow aliens to sue in the United States for breaches concerning diplomats or merchants, and to provide a remedy against piracy. In the 1780’s, a French diplomat was assaulted in the United States, but could not sue because he was not a citizen. The incident became notorious overseas and an embarrassment for the young republic. Incidents like this, or piracy, were presumably what the words “in violation of the law of nations” referred to.

The plaintiffs in Kiobel, however, are suing Royal Dutch Petroleum, a foreign corporation, under the ATS for aiding and abetting torture that occurred in Nigeria. It seems fairly clear that a corporation aiding and abetting torture did not constitute a “violation of the law of nations” as that term was commonly understood in 1789. However, the Supreme Court’s decision in the 2004 case Sosa v. Alvarez-Machain has complicated the matter. There the court ruled that a violation of the present-day law of nations must rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the 18th century paradigm violations of the law of nations, such as piracy. Hence, under Sosa, if aiding and abetting torture were found to violate a norm of international character defined with sufficient specificity, the claim could go forward even if all parties are foreign and the conduct took place on foreign soil.

That such an interpretation of the ATS does not seem to comport with the text and the 1789 common understanding of the language of the ATS ought to be reason enough to not allow such a suit to go forward. However, letting the claim in this case go forward also would have troubling consequences. As Justice Breyer noted in a concurrence in Sosa, there is a comity issue here. The government of Country X may be upset that American courts are trying cases involving conduct that occurred in X and involves the citizens of X. It also seems American courts might often be ill-equipped to try such cases. Furthermore, however awful such conduct might be, it seems wrong that foreigner’s conduct on foreign soil is subject to American laws. Would we want Italian courts trying us for our conduct in the United States?

The Court yesterday seemed to be looking for ways to limit the scope of the ATS without explicitly overruling Sosa. After all, the court originally heard Kiobel last spring on the question of whether the ATS applies to corporations or only individuals. It asked for reargument this term, however, on the broader question of whether the ATS was meant to apply to claims by foreigners against foreigners for foreign conduct, perhaps implying a desire by the Court to limit the application of the ATS over foreign conduct. Justice Alito yesterday asked, “Why does this case belong in the courts of the United States when it has nothing to do with the United States, other than the fact that a subsidiary of the defendant has a big operation here?”

Disagreement between the justices existed yesterday, though. Some wondered if a court should ask for advice from the State Department on whether the case threatened a U.S. relationship with a foreign country. Others wondered if plaintiffs should try to sue in a foreign court with a greater connection to the case before suing in a U.S. court. This solution may be pleasing to some on a policy level, but it is unclear what basis in law it has. Why ought the ATS provide jurisdiction only after other fora are first tried, particularly given the fact that it seems on its face that the ATS does not allow these kinds of claims to be brought in U.S. courts?
It seems likely that Kiobel will produce a shift in the right direction regarding the ATS. How far a shift it will produce, however, is far from clear.

A First Amendment Victory: Allowing Political Parties to Endorse Judicial Candidates

In a victory for free speech in political campaigns earlier this week, the Ninth Circuit in Sanders County Republican Central Committee v. Bullock enjoined Montana from enforcing a Montana statute that prohibits political parties from endorsing judicial candidates. The court ruled that the law violates the First Amendment’s protection of speech.
The Sanders County Republican Central Committee sought a preliminary injunction against the law, in order that the Committee be able to endorse judicial candidates. Quoting the Supreme Court in Citizens United, Judge Jed Rakoff, sitting by designation, wrote, “[t]he First Amendment ‘has its fullest and most urgent application to speech uttered during a campaign for political office.’” He then argued that the protection of speech applies not just to individuals, but to political parties as well. Citizens United, he noted, rejected the notion that “political speech of corporations or other associations should be treated differently” than that of individuals.

After finding that the statute on its face restricted the Committee’s First Amendment rights, the court then found that the Montana law was subject to strict scrutiny. The court found that the statute could not survive strict scrutiny because it did not further a compelling interest and was not narrowly tailored. Although Montana has a compelling interest in having fair judicial elections, the state was wrong to assume that “preventing political parties from endorsing judicial candidates is a necessary prerequisite to maintaining a fair and independent judiciary.” After all, many other states have elected judges but do not prohibit political parties from endorsing judicial candidates. There was no evidence that these states have unfair elections. Judge Rakoff also pointed out that Montana could appoint its judges if it were concerned about corrupting effects resulting from permitting political parties to endorse judicial candidates. Such a process, unlike the one challenged in this case, would not violate the First Amendment.

Noting that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the court found the irreparable injury requirement for a preliminary injunction satisfied. Since the restriction on First Amendment rights outweighed the hardship to Montana, the balance of hardships favored the committee. The public interest also pointed in favor of granting the injunction.

Judge Mary Schroeder dissented. Schroeder ignored what Citizens United and other Supreme Court cases had to say about the First Amendment outside of an indirect reference that the state in White I “violated the First Amendment when it prohibited ‘candidates for judicial election from announcing their views on disputed legal and political issues,’” something that she thought played no role in this case because Sanders County dealt with whether a political party, rather than a candidate, had rights under the First Amendment. Her opinion focused instead on how the decision would lead to what she called “disruptions and distortions in the non-partisan processes states have developed in order to prevent judicial elections from turning on promises to decide cases in ways that will get votes.” Assuming such “distortions” would actually result from the court’s decision, it is doubtful that preventing them trumps upholding the First Amendment.

After all, although it may have already been the right decision anyhow, after Citizens United, it is obvious that the First Amendment protects the rights of political parties to endorse judicial candidates (the lawsuit dealt merely with endorsements, not the state’s ban on contributions to judicial candidates). Protecting political speech is, if not the primary purpose of the First Amendment, one of the top reasons for it. We may not want to elect judges in exactly the same ways as we elect other elected officials, but it is hard to square the First Amendment with prohibiting an organization from endorsing a candidate.

Read the opinion and dissent:

Texas v. Holder and the Propriety of Voter ID Legislation

In Texas v. Holder, the federal district court in Washington unanimously struck down a Texas voter ID law (henceforth “SB 14”) requiring that prospective voters present photo IDs before casting their ballots. Judge Tatel, writing for the three-judge panel, deemed SB 14 to be “retrogressive” and “the most stringent in the nation” — “far more burdensome” than similar laws in Indiana and Georgia, the former of which the Supreme Court upheld in Crawford v. Marion County Election Board.

In arriving at its decision, the court first noted the high burden of proof Texas faced. It was the state, which bore the tough burden of showing that SB 14 would have not any retrogressive effect on racial minorities (or, to use the precise language of case law, a “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise”), and not the federal government in showing that SB 14 would have some retrogressive effect. Next, the court then argued that Texas failed to carry its burden for the forgoing reasons: one, nothing in social science literature speaks conclusively to the effect of phone ID requirements on voter turnout, and two, no significant lessons can be drawn from the Indiana and Georgia laws, which the court believed to be less restrictive than SB-14. Finally, the court found that Texas failed to submit reliable evidence showing that the rate of ID possession is consistent across different racial groups, so that voter ID restrictions would not disproportionately affect racial minorities. In its packed opinion, the court additionally argued that Crawford does not control in this case (the issue here was effect of the voter ID law on minority voters specifically, while the issue in Crawford was the validity of the voter ID law as applied to all, not merely minority, voters in the state).

The court was correct to focus on the distinctions between Crawford and the instant case, and in subsequently concluding that Crawford should not be binding. It was additionally right to harp on the hodgepodge of contradictory evidence resulting from inconsistent studies offered by each side to the case. However, the court was too quick to dismiss the relevance of voter ID legislation in Indiana and Georgia; the differences between the Texas law and its analogs in Indiana and Georgia were much finer than the court purported them to be. For instance, among the many other fine-grained distinctions which the court seemed strained to draw, was the fact that voters may (but note: may, not must) have to incur at least $22 in out-of-pocket costs to obtain a voter ID (though the voter ID themselves would be free, voters would have to present secondary ID, such as a birth certificate, in order to obtain the voter ID). The court was worried that the $22 cost to obtaining a secondary ID, as well as the associated travel time and expense, would be too onerous for indigent voters to bear. In Indiana, by contrast, secondary ID can cost as little as $3-12.

However, is the extra $10 or $20 such a meaningful difference, as to break the bank for even very poor minorities? Should it help tip the scale towards invalidating a law that is otherwise similar to a law either upheld by the Supreme Court or implicitly accepted by the Justice Department? Sufficient to outweigh the myriad of benefits (e.g., increased legitimacy, reducing election fraud, preserving the integrity of the voting process) stemming from stricter ID laws? No, no, and no — especially as this expense: 1) is hypothetical, 2) may be easily avoided by a large subset of the population, even minorities, who already own secondary ID, 3) would, even if incurred, be incurred only once and not every election cycle, and 4) paltry when compared to debt arising from daily or otherwise necessary expenditures, such as food, rent, and medical bills? This is but one of the distinctions the court draws, but it nonetheless demonstrates how the court carves out superficial and far too fine-grained distinctions in order to dismiss the state’s reference to relevant voter ID laws.

Another problematic argument by the court is that the evidence clearly shows SB 14’s retrogressive effect on minority voters. Now, this argument would be valid had the court come out one way (against the state of Texas’ position) on the opposing sociological studies. But the court did not, having concluded (just before it launched into an argument on SB 14’s retrogressive effect) that trial evidence can neither conclusively map the effects of photo ID laws on voter participation, nor show the causal relationship between photo ID restrictions and widespread social ills. In fact, the indeterminacy of the evidence was a key rationale for the court’s conclusion that Texas cannot overcome its high burden of proof. Against this landscape of reasoning entertained by the court, its subsequent stance on SB 14’s retrogressive effect can only seem non sequitur.

Though the Texas law would have probably faltered anytime, given the high burden of proof and the veritable mess of statistical evidence that does not speak to each side, the court’s many missteps may cause the decision to be overturned on appeal. Texas Attorney General Greg Abbott has already vowed to take the case to the Supreme Court. Whether his confidence is warranted, only a cert grant (or denial) will tell.