The Court Moves Right
But judges have a lot of unlearning to do.
Less than a decade ago, surveying the shambles that half a century’s judicial activism and judicial abdication had made of the Framers’ original Constitution, such insightful commentators as Philip Howard and Mark Levin feared that only a new constitutional convention could fix the mess. Not a full replay of the 1787 drama, but something almost as drastic—the amending convention that the Constitution’s Article V outlines. Its terms allow two-thirds of state legislatures to name a council empowered to frame a balanced-budget or income-tax-limit amendment, say, or—most important—to repeal unconstitutional laws, regulations, and Supreme Court decisions. Three-quarters of the legislatures would then need to ratify such measures.
Now, though, the advent of Justices Neil Gorsuch and Brett Kavanaugh has reshaped the Supreme Court enough to stop such despondent talk. While the decisions announced at the end of the Court’s term in June, marking the first year with both new justices on the bench, don’t amount to a stampede toward the Right, they display a wholesome focus on what the Constitution and statutes actually say. The Nine are “redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation that judges have employed for centuries to elucidate the law’s original public meaning,” Gorsuch explained in a June opinion. “Today, it is even said that we judges are, to one degree or another, ‘all textualists now.’ ” And that’s already a quiet revolution.
To see what Gorsuch means, and how consequential a shift it promises, start with two of his own June opinions. The first, his judgment for the Court in United States v. Davis et al., concerns a Texas duo whose spree of sunrise gas-station holdups—they’d stick a sawed-off shotgun in a terrified cashier’s face and flee with cash and cigarettes—ended with a crash after a rain-slicked car chase. In addition to Davis and Glover’s convictions for robbery and conspiracy to rob, and Davis’s for being a weapons-toting felon, the jury also found the pair guilty of carrying a gun during a federal crime of violence, entailing heightened sentences. Joining the Court’s four left-leaning justices, Gorsuch found the last conviction unconstitutionally vague.
The enhanced-sentence law, he noted, parroted the definition of a crime of violence that the Court had already quashed for vagueness in enhanced-sentencing laws concerning offenders with prior convictions for violent crimes whose precise details the current sentencing judge couldn’t know. The laws therefore provided a loose, capacious definition that depended on judicial guesswork, Gorsuch objected, violating due process by failing to give citizens “fair notice of what the law demands.” It also undermined the separation of powers and democratic self-governance by letting cops, prosecutors, and judges, rather than legislators, define crimes.
Justice Kavanaugh, writing for the four dissenters, protested that in these gas-station robberies, a jury had already found the perpetrators guilty of waving a shotgun during an actual crime of violence, so no judicial guesswork was required. Moreover, his dissent added, think of the consequences for public safety of overturning a clause that for 33 years has reined in gun crime.
Possibly true, Gorsuch agreed. But faced with an unconstitutionally vague law, the Court’s job “is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.” Pedantic? More accurately, it puts Congress on notice that if judges are to do their job of faithfully interpreting the Constitution and laws as written, legislators must no less painstakingly strive to craft unambiguous statutes. Did the left-leaning justices get the outcome they wanted? Yes, but they had to endorse a declaration of judicial restraint to get it. As for Davis and Glover, sending them to the lower court for resentencing won’t make much difference to their terms of 50 years and 41 years. Even without the enhanced-sentencing provision, they will be liable to maximums of 100 years and 70 years, respectively.
There’s nothing pedantic about Gorsuch’s majority opinion in United States v. Haymond, which safeguards key constitutional rights with a rigor that would please any Founding Father. After 38 months in prison for possessing child pornography, Andre Haymond was serving the second part of his sentence—ten years of supervised release—when authorities again caught him with such pictures. Finding on the preponderance of the evidence that he had violated his release rules, the district judge faced a dilemma. In most cases, conditional release would require him to send the convict back to prison for all or part of the remainder of his term—two years, in Haymond’s case. But for certain specified violations, including Haymond’s, a provision of the conditional-release law obliges the judge to impose a minimum additional prison term of five years. This the judge did, while noting his repugnance for the law he had to enforce.
Gorsuch shared his repugnance and his reasoning. The Fifth Amendment’s guarantee of due process and the Sixth Amendment’s promise of a jury trial in criminal prosecutions mean that “only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty,” Gorsuch wrote. Those amendments would allow a judge to lock up Haymond only for the two remaining years of his sentence, as in the parole system, which the conditional-release regime replaced for federal crimes. But to lock him up for five years, as the special provision of conditional release requires, amounts to a new sentence and thus requires a new jury trial and conviction beyond a reasonable doubt, not a judicial fact-finding based on a preponderance of the evidence. Nor will the majority’s decision bring the whole conditional-release system tumbling down, as the conservative dissenters fret in Justice Samuel Alito’s opinion. In only a few instances will this special conditional-release provision trigger a mandatory minimum that extends beyond the malefactor’s original term, and only those cases will require a new trial.
“Ever since the New Deal, administrative agencies have multiplied like the Sorcerer’s Apprentice’s brooms.”
Kisor v. Wilkie shines the Court’s searchlight on two of the most vexed constitutional issues of our time: our swollen and ever-growing administrative state; and the ancient doctrine—stare decisis—that judges should respect legal precedents. Woodrow Wilson gave the administrative state its rationale: he held that government by nonpartisan, public-spirited, Ivy League–trained experts making rules in such agencies as the Federal Trade Commission or the Interstate Commerce Commission would be infinitely wiser, more efficient, and more responsive to changing conditions and the evolving spirit of the age than the Framers’ government of limited and separated powers, a clockwork relic in the electricity age. But though Wilson thought the administrative state the epitome of modernity, it’s hard to see how a government that he modeled on Frederick the Great’s enlightened despotism can be more up to date than the Framers’ vision of democratic self-government, still history’s most avant-garde political ideal, 232 years after the Constitutional Convention.
Nevertheless, ever since the New Deal supersized Wilson’s system, administrative agencies have multiplied like the Sorcerer’s Apprentice’s brooms, so that federal regulations now spill out of 240 volumes—and not only overregulated businessmen, infrastructure planners, and a few law professors, but also Supreme Court justices, have begun to wonder by what legitimate authority unelected bureaucrats can make rules like a legislature, carry them out like an executive, and adjudicate and punish infractions of them like a judiciary, usurping powers that the Constitution places solely in the Congress, the president, and the courts, with no two powers concentrated in the same hands.
In Kisor, a Vietnam vet challenged both the Veterans Administration’s denial of disability benefits to him as well as the Supreme Court doctrine of “Auer deference,” which leaves such decisions to an agency’s interpretation of its regulations, rather than to a judge’s. Justice Elena Kagan’s opinion for the majority, sending the case back to the appeals court for what she calls a “redo,” reads like a Russian novel, with the Court throwing one Auer provision after another out the back of the troika, hoping to slow down the ravening wolfpack long enough for the straining horses to get the sleigh back to the dacha before the whole doctrine, which implicitly validates the administrative state, is devoured.
True, writes Kagan, the Court has sent “some mixed messages” on Auer, which the majority will now clear up. Before courts defer to agencies’ interpretations, they must determine by rigorous analysis that the regulation in question is genuinely ambiguous and that the agency’s interpretation is reasonable and based on its specialized technical expertise; that it comes from some authoritative agency source rather than from a speech or guidance letter by some mid-level functionary; and that it isn’t just an after-the-fact rationalization or some new regulation disguised as an interpretation. In this decision, Kagan writes, the Court has “cabined” Auer, leaving it “less menacing” than before, though “not quite so tame as some might hope.”
Gorsuch, joined by Justice Clarence Thomas and in part by Kavanaugh and Alito, concurs that the case should go back to the appellate court for reconsideration, but he endorses nothing else in Kagan’s opinion, especially her conclusion that Auer should stay on the books. Fortunately, Gorsuch cheers, the majority has drained enough blood from the doctrine to leave it “zombified,” so doubtless the justices will soon have to revisit it, when “I hope this Court will find the nerve it lacks today and inter Auer at last,” since it offends both the law and the Constitution. The 1946 Administrative Procedure Act (the administrative state’s charter, so far as it has one) “requires the court to determine legal questions—including questions about a regulation’s meaning—by its own lights, not by those of political appointees or bureaucrats who may even be self-interested litigants in the case at hand.” Tellingly, while on other points the act compels judicial deference to agencies, on this it categorically commands the opposite. Auer deference not only flouts this provision, but it also disarms the courts from making sure that agencies don’t evade the act’s elaborate notice-and-comment procedure for promulgating new rules by issuing interpretations that essentially amount to new regulations.
More important, Auer (or Seminole Rock deference, as it’s sometimes called) oversteps the Constitution in a way that would especially horrify the Framers, who gave judges life tenure and irreducible salaries “so that an independent judiciary could better guard the people from the arbitrary use of governmental power,” Gorsuch writes—precisely the tyranny that the Founders fought a revolution to repel, since they wanted not to be ruled but to govern themselves by laws that their own representatives had made in their name. It’s the suspicion that rule by experts, however enlightened, embodies precisely this arbitrary government that makes constitutional conservatives so wary of the administrative state. In this spirit, writes Gorsuch, the Court can’t allow “other branches to usurp [its] power to interpret and apply the law to the circumstance before it,” as Auer deference requires. To give executive-branch agencies the power not only to make rules—that is, to legislate—but also to adjudicate transgressions of them, Gorsuch notes, is exactly what Hamilton warned against in Federalist 78: “there is no liberty if the power of judgment be not separated from the legislative and executive powers.”
It’s revealing, Gorsuch points out, that only three other justices joined Kagan in wanting to uphold Auer on its merits; Chief Justice John Roberts wrote separately to uphold it on stare decisis grounds, and Kagan’s opinion also clings desperately to that doctrine, trumpeting previous Court pronouncements that “[o]verruling precedent is never a small matter” but rather one that “demands ‘special justification’—something more than ‘an argument that the precedent was wrongly decided.’ ” Auer aside, one can’t help thinking, stare decisis is what the left-of-center justices are most fervently protecting. That certainly seems to have been Justice Stephen Breyer’s prime concern in dissenting in May from Thomas’s majority opinion in Franchise Tax Board v. Hyatt, a technical tax-jurisdiction case notable chiefly for its overturning of a Court precedent. “Today’s decision can only cause one to wonder which cases the Court will overrule next,” Breyer worried, perhaps concerned about all those Court decisions of dubious constitutionality that Senate Judiciary Committee Democrats have in mind when they question Supreme Court nominees about their fidelity to such supposed “settled law” as Roe v. Wade.
Thomas, the Court’s most principled originalist and arguably our era’s greatest jurist, used one June decision, Gamble v. United States, to pen a long opinion outlining his own view of stare decisis—a view that law professors and his colleagues once thought outlandish but are coming to consider more respectfully, thanks to Thomas’s decades-long insistence. In America’s legal system, he wrote, the “Constitution, federal statutes, and treaties are the law.” Judicial decisions take a distant second place, and “if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error. . . . When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” In such cases, he explained, stare decisis is a real evil, in that it “both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power,” since a flawed Court decision illegitimately makes new law instead of merely interpreting what the law is. What’s more, Thomas notes, even the English legal system, which does evolve by judicial decree (and which the American colonists rejected after living under it for 150 years), recognizes that judges are human and therefore fallible, so they mustn’t flinch from righting their predecessors’ mistakes.
“‘When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.’”
Another June decision, Flowers v. Mississippi, provides a thought-provoking illustration of what he means. The chilling facts are these. Curtis Flowers, recently fired for absenteeism from the Tardy Furniture store in tiny Winona, Mississippi, executed store owner Bertha Tardy and her bookkeeper with .38 slugs to the head in 1996. He also killed the two workers hired to replace him, though it took 16-year-old Bobo Stewart a week to die from his point-blank wound. Over 13 years, four juries convicted Flowers of murder and sentenced him to death, and two other juries couldn’t reach a verdict. The state supreme court reversed the first two convictions for prosecutorial misconduct and the third for racial discrimination in jury selection, though it upheld the 2010 conviction—the sixth one. In its June decision, the U.S. Supreme Court overturned that most recent conviction because of racial discrimination.
That decision, from Justice Kavanaugh’s pen, rests entirely on a 1986 precedent, Batson v. Kentucky, which, in Thomas’s view, stretched beyond the breaking point the Fourteenth Amendment’s world-historical guarantee of equal protection of the laws to all citizens, including freed slaves, backed up by such laudable measures as an 1875 Civil Rights Act barring state officials from excluding blacks from jury service and an 1880 Supreme Court decision voiding a similar West Virginia ban. A 1965 Court decision on peremptory challenges of jurors defined the appropriate outer limits of these provisions, though, ruling that “we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws.”
Batson trampled this reasonable limit to oblivion. Henceforward, criminal prosecutors would have to explain the reasons for their peremptory challenges to the trial judge, who would decide if they were bona fide or merely “a pretext for discrimination.” No longer, Kavanaugh explained, could a prosecutor peremptorily “strike a black juror based on an assumption that the black juror would favor a black defendant.” After all, the Batson Court held, “ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusions on the basis of such assumptions, which arise solely from the jurors’ race.” In Flowers’s case, therefore, wrote Kavanaugh—considering the prosecutor’s peremptory striking of 41 of the 42 prospective black jurors examined during this black defendant’s many trials, his disproportionate questioning of those prospective jurors, his disparate questioning of struck black prospective juror Carolyn Wright in this sixth trial compared with her similarly situated white counterparts, and the fact that “the Constitution forbids striking even a single prospective juror for discriminatory purpose”—the Court reversed the judgment of the Mississippi Supreme Court and sent Flowers back for yet more expensive proceedings.
Thomas’s dissent starts by shredding the majority’s supposed facts. Looking back over the number of black jurors struck in Flowers’s previous trials, the majority chides, “We cannot ignore that history.” No one is ignoring it, Thomas counters. When defendants allege violations of Batson in jury selection, appellate courts have sensibly deferred to the trial judge’s assessment of whether the prosecutor’s stated reasons for striking jurors are sincerely nondiscriminatory or pretextual, since he or she has personally observed the prosecutor’s tone and demeanor and can most accurately infer motive. And the trial judges suspected only one possible Batson violation in Kavanaugh’s litany of previous peremptory challenges over 13 years, an assessment of fact that the Supreme Court has no warrant to second-guess. Reviewing the last trial of this multiply convicted mass murderer, the majority airily ignores the reasons the prosecutor gave for striking five prospective black jurors, reasons any competent lawyer would endorse. Two knew the murderer’s family and had been sued by the Tardy Furniture store; one adamantly opposed the death penalty; two lied during questioning; and one said that her relationship with Flowers’s relatives might lead her to favor him, regardless of the evidence. As for Carolyn Wright, purportedly the “single prospective juror struck for discriminatory purpose,” the problem wasn’t, as Kavanaugh writes, that she might have been swayed by her feelings over a 13-year-old, paid-off debt to the furniture store, but rather by her possible resentment about having been sued by the new owner—daughter of the slain Bertha Tardy and a witness at the trial—and having had her pay garnished for that debt, as the state showed. Neither the trial court nor the state supreme court erred here.
Thomas’s real target is Batson itself, and he writes with a hint of scorn for the majority’s reverential treatment—possibly based on its wish to “boost its self-esteem” as nonracist right-thinkers—of a precedent that “requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on a jury.” While the Bill of Rights and the Fourteenth Amendment aim to ensure the fairness of criminal trials, Batson “serves to undercut that fairness by emphasizing the rights of excluded jurors at the expense of the traditional protections accorded criminal defendants of all races.” Batson’s “misguided effort to remedy a general societal wrong” leads to the absurdity that a “convicted criminal, who suffered no injury, gets his conviction vacated,” while the struck juror’s injury—if he or she really suffered one—“is not redressed by undoing the conviction of another.”
As other justices have observed, Thomas writes, Batson’s logical conclusion will be the abolition of peremptory challenges to jurors, an ancient legal practice designed to protect both “the defendant whose liberty is at stake” and “the People who seek justice under law.” Such challenges, which cease to be peremptory if they require justification, don’t question a juror’s competence or reasonableness but spring instead from “sudden impressions and unaccountable prejudices we are apt to conceive on the bare looks and gestures of another,” an earlier Court had written—from lawyers’ “intuitions about jurors’ often-unstated biases” that may make them “less sympathetic to a party’s case,” as Thomas puts it. Even Batson recognizes the worth of such intuitions, after all, expecting them to contribute to a trial judge’s assessment of a prosecutor’s nondiscriminatory sincerity.
Moreover, if mankind held no prejudices, if we all made only coolly rational judgments, why does Batson bend over backward to guard against such prejudice in prosecutors? No worldly observer can fail to have noticed that prejudice operates even in rational minds, including not just prejudice against people of other races or religions but also prejudice against police and prosecutors based on the belief that they uphold an unjust social order, along with prejudice because of racial solidarity—which together notoriously make it hard to get witness cooperation, let alone jury convictions, in some inner-city jurisdictions. “The racial composition of a jury matters because racial biases, sympathies, and prejudices still exist,” Thomas writes. “This is not a matter of ‘assumptions,’ as Batson said. It is a matter of reality.”
Thomas’s dissent, which Gorsuch joined except for its willingness to overturn Batson, drew howls from the mainstream press. The New Yorker ridiculed his opinion by saying that he thought it “just fine” that “a Mississippi prosecutor went on a racist crusade to have a black man executed,” while the New York Times clutched its pearls and gasped that “he even suggested that Batson might have been wrongly decided.” But as the unflappably realistic Thomas emphasized at the end of his dissent, “black criminal defendants will rue the day that this Court ventured down this road that inexorably will lead to the elimination of peremptory strikes.”
Ever since Chief Justice John Roberts wrote the Court’s 2010 NFIB v. Sibelius ruling that Congress’s interstate commerce power doesn’t extend to making citizens buy health insurance but that Obamacare’s individual mandate is nevertheless legal under the government’s taxing power—despite White House insistence that the mandate was not a tax—the chief has been the wild card in the Court’s supposed new conservative majority, given what some have thought his hypersensitivity to public opinion. June’s decisions reemphasized his mutability. Roberts the literalist wrote the Court’s opinion in Rucho v. Common Cause, concerning state-of-the-art computer-modeled gerrymandering in North Carolina and Maryland in 2016. That the gerrymandered results were “highly partisan,” as Roberts put it, is an understatement. For instance, as recently as 2012, North Carolina Democratic congressional candidates had received more votes statewide than Republicans, yet the Republican-run legislature’s high-tech redistricting for 2016 produced ten Republican congressmen and three Democrats. And for stacking the deck against Republicans, something is just as rotten in the state of Maryland.
But the Framers put the state legislatures and the Congress—political bodies, not judicial ones—in charge of regulating elections, and they weren’t surprised when shrewdly political governor Patrick Henry tried to gerrymander James Monroe into the seat that James Madison ultimately won in the first congressional elections under the new Constitution, well before Massachusetts governor Elbridge Gerry’s 1812 sanction of a salamander-shaped congressional district gave his name to the ploy. Further, the Constitution doesn’t call for proportional representation by party. Until 1842, many states staged winner-take-all elections, so that Alabama Whigs, for instance, gained 43 percent of the statewide vote in 1840 but won not a single congressional seat. This may seem unfair, but there is no judicial standard for determining electoral “fairness.” It isn’t constitutional reasoning to assert that “this Court can address the problem of partisan gerrymandering because it must,” and the justices unanimously swatted away such hyperbole last year.
As Roberts reiterates in Rucho, the justices “have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.” It’s a corollary of Chief Justice John Marshall’s famous dictum that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Roberts concludes, that “[i]n this rare circumstance, that means our duty is to say ‘this is not law.’” That doesn’t mean that government can’t address gerrymandering, of course. The state legislatures and Congress are already fashioning such fixes as independent redistricting commissions and firm rules for district mapmakers.
But immediately after issuing Rucho, Chief Justice Jekyll metamorphosed into Chief Justice Hyde, so to speak. The troubling point in Department of Commerce v. New York, the controversial census case, is not that Roberts penned an unconservative policy judgment for the Court but rather that he got there by abracadabra jurisprudence. The case turned on Commerce Secretary Wilbur Ross’s decision to ask 2020 census respondents where they were born and whether they are U.S. citizens, questions asked on every census but one between 1820 and 2000. A slew of blue-state and local governments, joined by immigrant-rights groups, sued to stop him, arguing that the question would scare illegal immigrants from participating, and the resulting undercount would reduce these jurisdictions’ congressional seats and federal funding, allocated by population. According to the suit, Ross’s stated reason for asking the question—that the Department of Justice wanted the numbers for better enforcement of the Voting Rights Act—was “pretextual,” and the district court agreed, voiding Ross’s decision.
Perhaps with Kisor’s arguments about Auer deference still in mind, Roberts writes that administrative law requires agencies to give reasoned explanations for their actions, justifications that courts can scrutinize, though, of course, judges know that agencies may have additional, unstated, perfectly legal motives, too—often political ones. While generally courts have no business sticking their noses into “the mental processes of administrative decisionmakers,” in rare cases of a “strong showing of bad faith or improper behavior,” judges can do that. The district court was right to do so here, Roberts held, because, whatever unstated reasons Ross might have had, his stated one was not “an explanation” but “a distraction.” In other, less judicious words, Ross is a liar, and the citizenship question is out.
But we’re not in the world of Kisor or Batson anymore, where judges peer into bureaucrats’ reasons and prosecutors’ motives. As Justice Alito said in his sharp dissent: sure, the Administrative Procedure Act allows “judicial review of ‘agency action’ taken in violation of law,” but it “bars judicial review of agency actions that are ‘committed to agency discretion by law’ ”—as Ross’s decision about the citizenship question emphatically is. The census law requires the secretary of commerce to “take a decennial census of population . . . in such form and content as he may determine.” As Alito tartly concludes, italicizing the relevant phrase, “A clearer and less restricted conferral of discretion is hard to imagine.”
Thomas’s equally sharp dissent warns that the Court’s utterly unprecedented decision “has opened a Pandora’s box of pretext-based challenges in administrative law,” as “political opponents of executive actions,” along with “reluctant agency staff” resisting a new administration’s policy, stoke controversy with accusations of deceit and corruption, and push courts into “an endless morass of discovery and policy disputes.” That’s just what happened in this case, he writes, with the district court crediting the snide charge that Ross’s invocation of the Voting Rights Act must be a falsehood, because “the current [Trump administration] Department of Justice has shown little interest in enforcing the VRA.” Alito, who notes that political opponents were quick to tar the citizenship question as “racist,” paints an equally dire picture of what rough beasts will slouch out of the Pandora’s box that this decision has opened. “If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual.” If there’s a silver lining here, perhaps these are the Lilliputians who can immobilize the administrative-state Gulliver.
Everyone remembers John Maynard Keynes’s quip that “[p]ractical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist,” but it’s worth emphasizing what an effort of self-examination and independent thought it takes to free oneself from such mental servitude, even if one is a judge. All those years of law school, all that effort in absorbing the sometimes-crackpot theories of such still-revered justices as Felix Frankfurter or Oliver Wendell Holmes, Jr., not to mention the much wilder living-Constitution and social-justice law professors’ commentary upon them, all those hours cramming for exams in constitutional-law courses that, as Justice Thomas recalls, didn’t even assign the whole Constitution! So getting back to the Framers’ Constitution—as perfected by the Bill of Rights, the Reconstruction Amendments, and the Nineteenth Amendment—and seeing the luminous modernity of its guarantee of liberty and its expectation of self-reliance, takes an immense effort of intellect, erudition, and imagination. But the Court is getting there.