Law professors can be so naive

And a note on October 18th: Originalism is discussed in this terrific piece in the Washington Post.

With an update on October 14th.

On October 1st (on the website, and October 2nd in the paper edition), the Star Tribune published two op-eds by Harvard Law professors, Noah Feldman and Cass Sunstein. They both have at least some progressive liberal credentials: Feldman clerked for Justice Souter and Sunstein is married to Samantha Power.

The subject of the two op-ed was, of course, Donald Trump’s nomination of Amy Coney Barrett to sit on the Supreme Court.

The pieces are excellent, and I commend them, but when I was finished reading them, I thought about how much both professors were defenders of the Court as an institution at a time it is at risk of being hijacked and transformed in a way that leaves the Court unworthy of the fealty.

Anybody who has passed through a law school knows they pound,You are an officer of the court, into you from day one. I didn’t go to Harvard, but I’ll bet they do it there, too. Ethical rules for lawyers circumscribe the scope and ferocity with which you may criticize courts and judges. Law students are taught by law professors to worship the courts.

Let’s take the op-eds in turn.

The gravaman — a lawyer word that both professors would undoubtedly approve — of Feldman’s piece is that even the lion Franklin Delano Roosevelt couldn’t pack the Supreme Court! The short response is that he didn’t have to. His threat was enough to turn the Court around. And ideologues such as Doug Wardlow have been in sack cloth and ashes ever since.

Even Professor Feldman pays grudging respect to the threat:

The crucial events in the [court packing] plan’s short life came in March and April of 1937. First the court, in a 5-4 opinion written by Hughes, repudiated the Lochner doctrine and upheld wage and hour legislation passed by states. The decision was interpreted by the public as a result of the pressure imposed by the court-packing effort. That took the wind out of the plan’s sails. The decision came to be known as the “switch in time that saved nine.”

Then the court upheld the Wagner Act, a signature piece of New Deal legislation that created the National Labor Relations Board. The message was that the court would uphold the second New Deal.

Van Devanter soon announced his retirement, further weakening the logic of court-packing. When, in July, Sen. Joe Robinson, who had been promised a Supreme Court seat in exchange for leading the court-packing plan, died in his sleep, the scheme died with him.

“Scheme” is a little pejorative, don’t you think, Professor Feldman? I do. But, even if it was a scheme, it worked. But the professor continues:

The historical lesson is, arguably, that even with near-total partisan power and good cause, FDR couldn’t pack the court. If the lesson is still valid, it suggests that it would fail again now.

Arguably? No kidding. I don’t think there is any question that the prospect of having to sit next to a bunch of new kids affected the decisions of the Court. I think the plan was a success.

And it might be now, too. The prospect of having the Court blown up on his watch would be sobering to Chief Justice Roberts; it’d be a virtual condemnation of the Court and the delegitimized political circus it had become. The Roberts Court would be remembered like the Taney Court (think Dred Scott): a permanent blot on Roberts’ escutcheon. Think of all the eighth graders who would read about it down through the years. Maybe they’d call it the Trump-Roberts Court, even better.

Professor Sunstein’s principal point is that you can never tell how a Justice will vote when elevated to the Court. He cites examples: supporting same-marriage, striking down Trump’s repeal of the Deferred Action for Childhood Arrivals, or to hold that the Civil Rights Act of 1964 prohibited discrimination on the basis of sexual orientation. There are other examples, of course: Burger and Blackmun on Roe v. Wade, and the jurisprudence of Justice John Paul Stevens, a Ford appointee.

In spite of the examples he cites, I think that the professor is being a Pollyanna. Look at the Mitch McConnell shenanigans that brought us to the point of a Judge Barrett nomination: Judge Merrick Garland was nominated by President Obama in March of 2016 (an election year) and he didn’t even get a hearing. Judge Barrett was nominated in September, less than two months before the election, and Republicans are falling all over themselves to get her confirmed. Under the circumstances, it is naïve to indulge in a belief of the smallest amount of good faith on the part of Republicans.

Professor Sunstein, if you think that the Federalist Society has the smallest uncertainty about how Judge Barrett would vote on Roe v. Wade, the Affordable Care Act, or the more obscure but equally important nondelegation doctrine, you’re fooling yourself; you’re whistling past the graveyard.

So are people like Senator Tina Smith, who won’t put expanding the Court on the table. I think her public position should be: If you’re going to steal it, we’re going to pack it.

I’m not finished with this subject yet, but that’s enough for now.

– o O o –

Update 10/14: In some ways, the events of the past couple of days have overtaken this story. One of the big events was Senator Sheldon Whitehouse connecting some important dots in the Republican court packing that has been taking place since about 1982 when the Federalist Society was formed. The Federalist Society maintains recruiting offices at places like Harvard and Yale, and that can’t be unknown to the professors at these school; some of them are Federalist Society recruiters. Professors Feldman and Sunstein almost certainly have lunch with some of them in the faculty dining room. This makes the hectoring by them even sillier and more misleading.

Sen. Whitehouse describes an unbroken string of some eighty 5-4 decisions from the Supreme Court favoring an identifiable Republican donor interest. Quite a string of victories, no? You’d almost think there was some force behind it. And you would be right, of course.

They will be 6-3 now, naturally. It’s nice to have an Insurance Justice. The Chief Justice can go a little wobbly sometimes.

The day after he penned the op-ed piece in the Star Tribune linked above, Professor Feldman had another op-ed published wherein he said that a conservative court wouldn’t touch LGBTQ rights, even though he acknowledges that Thomas and Alito want to.

Frankly, I would love to sell Noah Feldman a used car. (Car salesmen like Kurt Daudt can spot guys like this a mile away.) Feldman is clearly a candidate for the undercoating.

And I wrote this in the original story: how Amy Coney Barrett will vote may be unknown to Professor Sunstein, but it is well known to the Federalist Society, which is obviously promoting her. When the leadership of the sheltered workshop that employs Doug Wardlow (really, follow the link; it’s choice), the Alliance for Defending Freedom, shows up at Amy Coney Barrett’s debutante ball at the White House, there is no room for doubt.

Perhaps Cass Sunstein is in the market for a used car, too.

There has been a lot of breast beating about the risk that Judge Barrett poses to the Affordable Care Act, abortion rights, and LGBTQ rights, which she does, but I think the sleeper is the nondelegation doctrine, which is an attempt to take down the regulatory state: agencies like the Environmental Protection Agency. Barrett seems on board with the idea of nondelegation because of her cock-eyed notions of originalism.

There is a very good Atlantic article from May of 2020 – when Amy Coney Barrett was just a gleam in Donald Trump’s eye – discussing nondelegation. It’s blather, say the authors of the article:

Their [nondelegation] argument is grounded in a cursory, selective review of the historical record; it simply falls apart under any kind of serious scrutiny. Americans in 1789 didn’t share the view that broad delegations of legislative power violated the Constitution. Indeed, they would have been baffled by the claim, because governments throughout the Anglo-American world had long relied on this very technique without controversy. There wasn’t any nondelegation doctrine at the founding, and the question isn’t close.

Also from the article:

Indeed, the Founders would have been baffled by originalists’ claim that legislative power cannot be delegated. It was delegated all the time. Parliament regularly delegated legislative authority to ministers and corporations, and state legislatures in the Americas did the same. More striking still, the states delegated some of their legislative powers to a national legislature under the Articles of Confederation. (As Alexander Hamilton explained, “If the [New York] constitution forbids the grant of legislative power to the union,” then the powers granted under the Articles of Confederation “are illegal and unconstitutional, and ought to be resumed.” But they weren’t, because it didn’t.)

The British East India Company was an act of delegation by the sovereign.

The originalists, including Amy Coney Barrett, are elementary school yard constitutionalists, using their nonsense arguments to support ideological positions.

To reiterate what I said in the story, when the Supreme Court has been delegitimized by ideologues, we are not obliged to pay fealty to it.