Law

For Federal Power, Does the Mechanism Matter?

If, come June, the Supreme Court decides to strike down ObamaCare’s individual mandate, they’ll accomplish something almost unique in the Court’s history, but not for the reason you think. We expect the Court to strike down unconstitutional laws; even conservatives agree with that proposition (for now). What we don’t often see is a Supreme Court willing to invalidate a law that’s constitutional in its effect, and only deficient in the means it chooses to achieve that goal.*

No-one seems to doubt that Congress could constitutionally coerce citizens into purchasing insurance coverage by, for example, altering the tax code. Even conservative pundits and the Supreme Court seem to agree (pdf). The question is — per Justice Kennedy — whether that matters:

Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.

On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.

It should. The Supreme Court rarely strikes down questionable extensions of Commerce Clause power if they would be otherwise sustainable under separate constitutional rules. Consider the case of the Civil Rights Act of 1964, which used the Commerce Clause to forcibly integrate all public institutions — restaurants, hotels, etc. — nationwide, and regardless of whether those institutions themselves engaged in interstate commerce. No-one can reasonably doubt that the Civil Rights Act was a very good thing. But as an exercise of Commerce Clause power, it’s… well… dubious.

Segregation impacts interstate commerce, Congress said, because it acts in restraint of trade, by relegating wide swaths of the population to second-class status. This barrier to commerce should be regulable under the Commerce Clause. Sure, but as the Supreme Court has repeatedly said since, Congress cannot regulate social problems, no matter how serious, by packaging them as barriers to “commercial” activity. And, moreover, the government’s position that no establishment could evade such regulation, no matter how small or how isolated from national commerce, defied conventional wisdom on the boundaries between state and citizen. To paraphrase Justice Kennedy, by making it impossible for individual Americans to evade the administration’s chosen social policy — integration — the Civil Rights Act threatened to “profoundly change the relationship of the federal government and individual Americans.”

And yet, the Court went on to sustain the Civil Rights Act — twice — holding that the Commerce Clause supported such broad-ranging social policymaking, and even if it didn’t, that Congress’ powers under the Fourteenth Amendment’s Enforcement Clause undoubtedly made up the deficiency.

This was undoubtedly the right decision. If all agree that Congress could constitutionally enact a statute, the Court has only minimal interests in striking it down merely because Congress chose the wrong means to a valid end. And all such interests — avoiding a “slippery slope,” or maintaining consistent doctrine — are historically avoidable, and can be managed by a sufficiently careful Court. Neither McClung nor Heart of Atlanta Motel presaged a total erosion of limits on the Commerce Clause, for example, because the Justices and the public alike knew exactly what the Court was doing.  The Civil Rights Act, for its importance to the country and its clear overlap with Congress’ Fourteenth Amendment powers, was special, and no-one has ever mistaken those decisions carefully upholding it for a general abandonment of Commerce Clause principles.

Similarly, despite the Justices’ intensive search for a “limiting principle” to constrain any decision upholding ObamaCare, there is no real danger that a sufficiently careful decision — acknowledging both the uniqueness of the insurance market and that Congress could constitutionally go far beyond the mandate using its tax power — would inaugurate an era of broccoli mandates or compulsory gym attendance. The Court is the master of its own destiny, as it’s proved time and again. If the individual mandate is an “extraordinary” mechanism, but one entirely incapable of altering the balance of power between the federal government and the states. And that’s all that should matter

* – Except in equal protection challenges. 

In Partial Defense of David Dow: Maybe Don’t Impeach the Five

On the Daily Beast, Professor David Dow — a brilliant man and storied advocate against the death penalty — argues that President Obama should consider impeaching Supreme Court justices, if the Court votes to invalidate the individual mandate. I respectfully disagree: for one, even if Thomas Jefferson considered the same, Jefferson was a bit of a wild card when it came to the Court. His many letters against Marbury v. Madison are regularly quoted by conservatives as proof that judicial review is contrary to the Constitution, even though his  clearest expression of this sentiment was motivated by partisanship, and also clearly wrong (Marbury‘s explication of judicial review is holding, not dicta). And, impeaching a justice for voting the wrong way would be a more blatant and extreme assault on the Court’s legitimacy than the right has ever even contemplated. Justice O’Connor is right on this point. To the extent that we want to pick a fight with the Court at all, we should limit the fight to the justices, not the institution. Impeachment implicates both.

Separately, though, Professor Dow’s explanation of the mandate’s constitutionality is (especially by incorporating Akhil Amar) one of the best I’ve read yet, and clearly prevails over his detractor, a writer who actually refers to an article by Ann Coulter as “eye-opening.” Indeed. Oh, and, full disclosure — I was once took a class taught by Professor Dow, an equal protection seminar at Rice in 2005. The man is a genius, and a rough grader. He gave me a B+, I think, and I was happy to get it.

Image stolen from here.

Library Voices, “Traveller’s Digest“

The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law:

And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

As much as I’m willing to grasp at anything that might help the government sustain the mandate, I hope it’s obvious to everyone that while the democratic process is itself a limit on federal power, it’s not one that can be relied upon to restrain government action. The Constitution precommits us to certain values, with the knowledge and expectation that we might, one day, try to transgress beyond them. In such cases, the Constitution is there to limit the people’s transgressions against themselves, and snap them back into line.

The very essence of the Court’s countermajoritarian role is that elections alone are inadequate safeguards on popular liberty. If this is something we as liberals accept in social causes — when we try to invalidate validly-enacted, but nonetheless noxious bans on gay marriage — we can’t ignore it when it hurts us. That’s the conservative approach, so plainly on display on Erick Erickson’s site (judicial activism is fine when they do it, you see!). But we should be above that.

ObamaCare: the Value of Narrative in Appellate Advocacy

Today begins oral argument in No. 11-398, U.S. Dep’t of Health & Human Services v. Florida, the “ObamaCare” case.  By most counts, this is a case Republicans should expect to lose, probably by a lot. The Supreme Court has never limited congressional power to regulate strictly economic conduct, not even at the high point of Chief Justice Rehnquist’s federalist revolution. This may make the five-plus hours of oral argument little more than an exercise in legitimacy, the Court’s attempt to build political cover for itself as an institution by creating the appearance of controversy.

In fact, no matter how close the case ultimately comes out, the matter is probably already, for all intents and purposes, decided. It’s the rare oral argument that changes any judge’s pre-existing view of the merits, a point that’s probably particularly relevant in controversial, closely-watched cases. For judicial opponents of Congressional power, this is a day decades in the making. For proponents of the status quo – and make no mistake, the status quo would uphold the law — this is a chance to put to bed the conspiracy theories and legal fantasies that’ve animated the Tea Party for two years. The destination is already chosen; the rest is just the journey. But the journey does matter.

Sadly, the Court chose to shut out television cameras, squandering a valuable chance to educate the public about the nature of constitutional law, and constitutional decisionmaking. This means we’ll have to wait for transcripts, or live reporting from Court correspondents. When we start to hear reports, keep the following rules about appellate advocacy in mind –

• Infer from questions only carefully: if a Justice asks a question, it’s not always because he or she personally believe the question’s implications. Justices tend to use questions not to tip their hand as to their own beliefs, but to argue with their colleagues by proxy. So if we hear a “liberal” justice ask a question that implies that the individual mandate oversteps precedent, don’t assume their vote is lost.
• Watch who the lawyers are “targeting”: it’s widely believed in liberal circles that Kennedy, Roberts, and Scalia are all “gettable” votes to uphold the mandate. Winning Scalia would be an especially valuable political coup, since he’s widely viewed as more crazily conservative than he actually is (contrast that with Thomas, who actually is as crazy as people think). Arguments from ObamaCare’s proponents turning on Gonzales v. Raich, for example, can properly be viewed as attempts to convince Scalia, who upheld federal power in that case, that the mandate is necessary as part of a complex, otherwise constitutional regulatory regime.
• Don’t expect the Tenth Amendment to come up: as we’ve detailed extensively, the Tenth Amendment argument is just a non-starter. Every lower appellate court has agreed, and the only Tenth Amendment case in recent history, U.S. v. Printz, was written by Scalia, but concerns federal “commandeering” of state officers. That plainly does not apply.
• Look for clues from narrative: the most important part of appellate advocacy is issue framing.  The Court already framed the questions (pdf), and therefore, the context of the debate. But how the advocates from their position is important, especially when we get to the individual mandate question. Look for lawyers to drop initial phrases like, “this is a case about…,” and ask yourself why they’ve chosen to frame an issue in one particular way.

Here, lawyers are in the strange position of framing a narrative maximum effect in sophisticated legal setting, and simultaneously for wider political consumption.  Politically, conservatives will want to take an extreme position – “this is a case about the government straining the Commerce Clause to its breaking point” – but counsel will have to balance the hyperbole the public expects against a legally wiser, more tentative position.  Remember that this is a Court that has never limited the Commerce Clause’s reach as a tool of pure economic regulation. And, more importantly, running to histrionics will immediately put the Court on the defensive. Even if they’ve already made up their minds, if he starts out by staking a far-right position, counsel could be in for a rough first ten minutes of arguments as the Court forces him back into line.

And lastly, remember, the course of argument may not be the best predictor for the Court’s eventual result. I’ve had judges feed me my best theory during argument, and otherwise appear to be on my side, only to lose the unanimously nine months later; and I’ve seen judges beat up on our opponent in argument, hard, only to beat up on us in the final opinion. Hard. Like lawyers, judges like to hear themselves talk, and more so than any other day, the nine justices are conscious of their audience.

Follow a live blog of the event at ABC News, or National Review.

Justin Levine, “Second Nature,” from the OST to Bloody Bloody Andrew Jackson.

Originalism and Judicial Restraint, Incompatible as Applied

Public Discourse prints a problematic defense of originalism as a mode of constitutional interpretation, occasioned by a recent book by Judge Wilkinson of the Fourth Circuit, who candidly admits to its shortcomings. Per Gregory Sullivan, originalism shares none of the subjectivity of competing constitutional ideologies, and so should be above reproach:

Whereas Brennan, Ely, and Posner advance theories that inevitably result in judicial supremacy . . . originalism is the only interpretive approach that most consistently will restrain the Court. While Wilkinson is right about one criticism of originalism—its glib and often erroneous use of historical materials—this is a problem that is an abuse of originalism, certainly not its essence. In a fallen world, even a sound doctrine is open to such abuses.

First, I question the seriousness of any commentator who readily drops dog-whistle phrases like “judicial supremacy.” And in this case, caution is well-founded, because Sullivan essentially admits to originalism’s greatest flaw — its inability to cope with a “dense and often contradictory” historical record — before claiming that, but for its fatal flaw, originalism works. Sure. And if we ignore his stopped heart, yes, the patient is doing fine.

The complexity of history, and the fact that there’s always a competing historical narrative, aren’t just little problems. They fatally compromise originalism’s sole virtue — its pretension to objectivity. If judges can still choose results based on originalism, the doctrine allows just as much “judicial supremacy” as the next constitutional modality. But don’t take my word for it. Sullivan notes the problem himself. He just doesn’t think it matters.

Set against this vice is originalism’s great virtue: it closes the door on social progress issues, like gay rights and abortion:

The strength of originalism as a restraining force is found in the really controversial cases: those involving abortion, homosexual conduct, same-sex marriage, and so on. For originalists, these are easy cases. The history of the Fourteenth Amendment with respect to these issues is perfectly clear: they are not constitutional matters at all. The history, that is to say, is uniformly and unequivocally silent on these questions.

Query whether choosing a modality based on the outcomes it generates is any less subjective than the “results-driven jurisprudence of the Warren Court.” Regardless, it’s not clear to me that originalism, properly applied, actually offers easy answers to such social issues. Liberal originalists have demonstrated time and again that laws banning sodomy, banning abortion, or defining marriage are all modern creations. See, e.g., Lawrence v. Texas (“It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution”). And, homosexuality and abortion may not have been topics of ready conversation at the founding, but they’re both life choices of deep antiquity. Applying originalism purely, “unequivocal silence” in the record supports neither a positive right to engage in consensual sodomy, nor a negative right for the state to override the citizen’s interest in privacy, and criminalize such private conduct. Even on this “simple” issue, originalists can tell competing stories.

All of this should suggest that originalism isn’t about fighting “judicial supremacy,” defined as judges making subjective judicial choices. It’s about fighting “judicial supremacy,” defined as judges making subjective judicial choices that favor social progress. Here in turn is the great virtue of Brennan’s “risible” notion of the responsive interpretation: if we accept that all modalities of constitutional interpretation involve subjectivity, we might as well acknowledge that subjectivity, and deploy it cautiously to allow society to grow within the constitutional text. Better a Constitution that grows with its people, than one which steadily becomes irrelevant as society changes.

“Love is Strong,” by Fires in France

In Changing Social Norms, Narrative (and the Court’s Fragile Sensibilities) Matter

Consider this a follow-up to yesterday’s post on the culture of the legal academy.

Last week’s New Yorker offers the true tale behind Lawrence v. Texas, the watershed Supreme Court case that made unconstitutional any state law targeting morality in the bedroom, and therefore inaugurated the modern gay rights movement. Per Dahlia Lithwick, and her reviewed author Dale Carpenter, the real John Geddes Lawrence was anything but the poster child for romantic gay love, but — given the healthy distance appellate lawyers prefer to place between themselves and “jury facts,” irrelevant on appeal — that didn’t matter so much.

In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

Interestingly, the sordid nature of Lawrence’s backstory was essentially compelled by the jurisdictional requirements of the case. Basically, to present the best argument for ultimate Supreme Court review, the plaintiff has to plead no contest to the state’s case, and challenge only the constitutionality of the statute. So, activist lawyers needed a plaintiff who wouldn’t mind a criminal conviction on their record, which is to say, one without a family and a reputation. Advocates weren’t stuck with a less-than-ideal plaintiff; they were going to have to take a less-than-ideal plaintiff and dress them up. Lawrence just happened to fit the bill.

More to the point, both authors frame the argument in Lawrence v. Texas less as one about the law — truly, the law was already quite settled by that point, which contributed to making the case a blowout 6-3 decision — than about the Justice’s sensibilities, and their perception of prevailing social attitudes on sex. Among the factors that changed between Bowers v. Hardwick (the ’90s case that permitted states to criminalize gay sex) and Lawrence was, the Justices now had gay friends, gay clerks, and lived in a legal world where elite players are, regularly and openly, gay.

This invites a broader question: the extent to which social change depends on the Justices’ collective sensitivity to Das Leben der Anderen – the lives, and problems, of others. If that’s the deciding factor in a close case, or if legal conclusions ever follow moral ones at the high court, the social culture of legal elites and the academy isn’t what matters: it’s how that culture is transmitted to the Court, mediated by the barely permeable membrane with which the Justices surround themselves.

By this theory, persuadable judges can be persuaded by contact with life experiences suggesting that legal problems are social problems that actually matter to the outside world. The advocate should do everything possible to ground his case in a believable life story, relatable and meaningful outside of some niche culture. The Justices could safely ignore gay rights so long as they believed (however erroneously) that they’d never met a gay person, or had a gay clerk; but by 2006 they no longer could, given the size of the proudly gay bar. All together, this suggests an advocacy style that emphasizes the client’s story, or at least those parts that resonate with the legal problem (dissonant chords may be safely ignored). Call it a variant of one of the central theses of Critical Race Theory (yes, we’re back there) — narrative matters, but manipulated narrative matters most.

Of course, not every judge will be persuadable. One of Justice Thomas’ favorite clerks, as reported by Jeff Toobin, is herself lesbian. The Justice regularly sent her holiday cards, and even a wedding gift. But despite his affection for gay men and women, and presumably their problems, Justice Thomas is not a gettable vote on gay marriage. But when it comes time to replace Thomas, progressives should first look for a Justice whose life experience will help to ground the Court’s decisions in reality. Using this rubric, Bartlet’s decision to nominate Justice Mendoza looks especially brilliant, not because of Mendoza’s legal philosophy, but because as a former line cop, he could understand stories about the real world, and relate them to his colleagues to persuade them to vote accordingly. Obama’s pick of Sonia Sotomayor looks equally brilliant, precisely for her power to empathize, as does his decision to follow her and guarantee a second female seat on the bench to balance out the seven men.

This approach also has the virtue of acknowledging the Court’s greatest strength, and its greatest weakness — its humanity.

Oh, and, I’ve decided to use this platform partially to promote new, good music! So today’s song is “Avenue of Criminals,” by local band The Canon Logic.

In Culture, the Legal Academy Leads — Antintellectualism Notwithstanding

The National Review spent last week expending an appropriate amount of mental energy on the things that really matter — like, is Obama a dangerous radical, because he knew black people? To the publication’s credit, David French answered in the negative, arguing, reasonably, that people change over time: “Law school Obama is not our president, and I’m not sure that the videos tell us much at all about the man who sits in the [O]val [O]ffice.”

Naturally, that’s not the last word on the issue. Conspiracy-theory-machine Andrew McCarthy takes his point, but still sees a radicalized Obama whose life path somehow disqualifies him from high office. To him, the President is a product of that toxic environment of liberal subterfuge — law school — and so remains a dangerous “other.” McCarthy, on the evils of the academic bar: 

I was interviewed by a reporter earlier today about the Gitmo bar’s infiltration of the Obama Justice Department. The reporter made the same point David does: While mostordinary Americans may think it radical for a lawyer to volunteer his services to file offensive lawsuits on behalf of the enemy against the United States in wartime, this is not considered radical in the legal community — there, it is “mainstream.” Well, okay … but that the radicals think of themselves as mainstream does not make them mainstream — they are still radicals. And what’s the upshot of all of this? Lawyers who thought our enemies were worth volunteering to help are now the lawyers who make counterterrorism policy for the country — something so radical as to have been inconceivable just a short time ago, but something that is happening in the Obama administration. And by working it from the inside, these lawyers are incrementally but noticeably moving the mainstream in a radical direction.

I grant that law students and faculty both occupy the far left of the mainstream political spectrum. When I started at NYU Law, coming from evenly-split Rice University in Texas, I found myself shocked (and deeply impressed) by how boldly NYU’s entire faculty staked out a progressive position on gay rights. Here was a school that apologized to its students for losing a Supreme Court case that forced them to permit recruiters from discriminatory employers (to wit, the Armed Forces Judge Advocate General) on campus, or lose >$20m worth of university-wide funding. Personally, I was more impressed that they fought the case at all, against such staggering, ultimately impossible odds.

At the time, bold opposition to the armed forces for its failed personnel policy — “Don’t Ask Don’t Tell” — was extreme. Today it seems prescient: NYU’s storied Dean Revesz and his legendary practicing professor, Burt Neuborne, prefigured the repeal of DADT and the new, stable status quo by just five years. This is “extremism” in the way that progressives are always extreme: anticipating and leading the charge for valuable social changes, like desegregation, that wouldn’t happen without us.

Similarly, it’s well-known that many major law firms and professors happily joined the “Gitmo Bar.” (Though for the record, I had more professors whose prior careers involved fighting terrorism than professors who worked to exonerate detainees wrongfully imprisoned for the same.) But the product of the “Gitmo Bar’s” collective efforts was a Supreme Court decision that, in ringing terms, upbraided President Bush for effecting an end-run around the most fundamental of our rights as Americans — habeas corpus — and provided detainees with the “radical” right to a fair trial. Kennedy’s opinion for the Court makes quite clear that the true “extremists” in counterterror policy, those outside of the mainstream, working actively and efficiently to subvert basic constitutional freedoms and change the very face of our country, were the Republicans in charge of the White House, who somehow read their non-existent mandate as a license to rule like a king over anyone loosely suspected of terrorism. Here, too, the liberal legal establishment’s chosen position wasn’t “radical” — it was anti-radical, and firmly in line with what would be, soon enough, established law.

This is to say, we should never allow our positions to be styled as “radical,” or non-mainstream, especially when a five-Justice majority of the U.S. Supreme Court clearly states that we were, in fact, right all along. And to the extent that the legal academy finds itself on the periphery of the mainstream, the answer isn’t to apologize, retreat, and dutifully support the status quo. The answer is to wait. We in the legal elite live in a world of facts, precedent, and consequence, and concern ourselves with what’s right, not what’s popular. So, if history is any guide, we’ll be right soon enough.

Inferring from Aberration: How the Culture War Magnifies

Several point to an absurd incident out of Pennsylvania, where Judge Mark Martin recently acquitted a criminal defendant of assault because his victim, Ernie Perce, was dressed as a “zombie Mohammed,” thereby (apparently) provoking the assault. An excerpt from the trial transcript, as reported by another blog:

Whenever it is very common, their language, when they’re speaking to each other, it’s very common for them to say, uh, Allah willing, this will happen. It’s, they’re so immersed in it. And what you’ve done is, you’ve completely trashed their essence, their being. They find it very, very, very offensive. I’m a Muslim. I find it offensive. I find what’s on the other side of this [sign] very offensive. But you have that right, but you are way outside your bounds of First Amendment rights. …

The apparent argument, that some religions are entitled to more deference than others, is simply wrong by any interpretation of the First Amendment. What the Speech Clause of the First Amendment gives, the Free Exercise and Establishment Clauses cannot take away. Judge Martin is categorically wrong to acquit a Muslim defendant of assault, merely because his particular interpretation of Islam “required” him to undertake the assault. Religion has never been a shield against laws of general prohibition in this country. And regardless of however complex the actual prosecution may’ve been — Volokh, characteristically, adds some nuance to it — it is definitionally improper for a judge to admonish a crime victim not to avail himself of his First Amendment rights.

Unsurprisingly, some’ve taken this incident as proof of the “creeping threat” of Shar’ia law. This is wrong. There’s no evidence that the judge applied any actual standard of law, religious or otherwise, in the case — and that’s the problem. He went so far off-book as to either decide the case, or improperly harangue a crime victim, based on his own private sense of morality, and his (flawed) belief that pluralism means selling out to our thinnest-skinned elements. That’s not Shar’ia — that’s garden variety bad judging. Moreover, there is no law, and none can be drafted, against bad judging. We simply have to endure it, and correct it through the system by removing the judges, or appealing the cases (sadly, no appeal is possible here, on a criminal acquittal). To use this incident as “evidence” of a need for a ban on Shar’ia law in American courts is to note a problem that the law could not solve, and to which the basic, irrational fear underlying Shar’ia bans does not speak.

What’s at play here, in the right’s overreaction, is a common problem for modern democracy, especially evident in culture war issues: when a single act bears on the national consciousness, we tend to imagine it’s as common as it is important. In the public’s mind, there’s no such thing as an isolated tragedy. Like the Springfield “bear attack,” society will not allow a wrong to go unanswered, no matter how unlikely its recurrence, or how meaningless (or unrelated) the belated response (YouTube). The absurd amount of time we dedicate to discussing the “threat” of Shar’ia is no different — except for its racially charged overtones — from the truly absurd amount of time we dedicate to debating whether to criminalize flag-burning, despite the complete lack of any evidence suggesting that Shar’ia is a true, immediate threat; or that there is (as President Bartlett said) an “epidemic of flag-burning.” We magnify things that matter to us, and our view of America, in proportion with our values, not in proportion with the facts.

Ideally, we should take off the tinted glasses that make each of us view the world with some of its traits shrunk, others blown to monstrous proportion, and others relegated to peripheral vision. This may be optimistic. And for the Republican Party — with its new standard-bearer, Rick Santorum — deliriously so.

In Limited Defense of Affirmative Action

Court watchers will note an odd, and unsettling development at One First St. — the Supreme Court yesterday accepted review of Fisher v. University of Texas, the first challenge to education-based affirmative action to reach the high court in a decade. As the Times notes, affirmative action in the college admissions context was never a permanent thing. Like Keats’ life, the concept was writ in water from the start — Justice O’Connor herself purported to put a twenty-five year clock on the concept, after which, with the lingering effects of de jure discrimination dimmed by passing time, colleges would be bound to admit students in a race-blind process. But the justification for affirmative action that O’Connor settled on deserves to outlive this term — a prospect that now looks doubtful — and probably her self-imposed deadline, too.

Her theory, memorialized in Grutter v. Bollinger, 539 U.S. 306 (2003), holds that race is a valid factor for colleges to consider, so long as the term serves as a proxy for diversity in student background. The notion is that different people create diversity; diversity is a valuable resource to any college; and it’s hard to spot diversity from a paper application, except with reference to race. It’s hard to deny this argument — at least, it’s hard to deny the first three steps, especially if we believe that cultural mixing is, even to conservatives, a good thing.

Indeed, if we take Justice O’Connor at her word, the problem with her argument is that it’s too right. It substantially unmoors the concept of affirmative action from the transient need to correct for past injustices, and connects it to something far more permanent: the need for colleges to train citizens, rather than just thinkers. Effectively, by mooting the historical justification, her argument renders the sunset provision an irrelevant concession compelled less by the logic of the case, than by political reality. O’Connor’s promise to end affirmative action speaks to a blemish she, in the same opinion, manages to eradicate.

The real danger, then, is that today’s Supreme Court takes her at her word, and overlooks the real value of diversity in student background. An adverse decision, ending affirmative action, will compel colleges to design a new way to select for student quality and diversity — probably by taking long looks at each individual student, demanding more substantial student submissions, and otherwise further complicating an already complicated process — or lead them take one of two easy ways out. Colleges could simply stop selecting for diversity, and grow to tolerate cultural homogeneity in higher education. Or they could find another proxy for diversity, one that might be equally offensive, but won’t invite strict legal scrutiny. Like income.

Obama and Antiochus: the Modern Persecution Complex

Michael Stokes Paulsen, reported in Ben Domenech’s Transom, attempts to draw a shaky parallel between a campaign of oppression carried out by the Hellenistic king Antiochus IV Ephiphanes on his Jewish subject, and the Obama administration’s mandate that church-affiliated organizations cover contraceptives as part of their employees’ health plans:

The story does not have an especially happy ending (at least from a human, secular standpoint). Eleazar is tortured to death, then an entire family of brothers after him. But the story of Antiochus IV Epiphanes, and Eleazar, remains a remarkable two-thousand-year-old parable about tyranny and conscience, about cram-downs, accommodations, deception, and adherence to principle.

There are relatively few instances in recorded modern western history when government has insisted on vindicating its authority and overriding religious conscience for its own sake—purely for the symbolism of power prevailing over conscience.

Indeed. Per Paulsen, forcing an employer to subsidize their employees’ contraception violates religious conscience as surely as commanding a Jew to eat pork. It’s this kind of tortured logic, and apparent conviction that a democratically-elected leader is out to “get” the faithful as surely as an ancient despot, that together signal a religious lobby that’s overplayed its hand. Paulsen’s legal argument is worse, still:

The legal case against the Obama HHS policy was (and remains) shooting-fish-in-a-barrel easy. The policy violates the First Amendment’s Free Exercise of Religion clause, under any interpretation. It is not neutral toward religion, exempts some religious employers and not others, and vests government bureaucrats with broad discretion as to who will be exempted. Even more clearly, the policy violates the “Religious Freedom Restoration Act” of 1993, a federal super-statute that protects religious liberty and applies to the operation of all other federal laws unless a new law explicitly removes itself from RFRA’s requirements. Under RFRA, any federal law or regulation that burdens the exercise of religious convictions must give way to such beliefs, unless justified by a “compelling” interest that can be achieved in no other way. The contraception cram-down cannot possibly pass such a stringent legal test: what makes compulsory contraception, paid for by religious groups, “compelling”? How can it be so important, given other exemptions from the requirement?

The critical legal error duplicates the flaw in the historical analogy: the parallel isn’t to a king commanding his Jewish subjects to eat pork. It’s to a king commanding all of his subjects to provide their household servants with a living wage suitable to buy — if the servants so choose — pork, and preserving the new rule of general application over isolated Jewish objections. HHS’ expanded coverage allows American women to take home more of their paycheck, and spend less on drugs that are either an incident of modern life, part of modern reproductive medicine, or now-standard treatment for regular gynecological conditions (“the Pill” is more than prophylaxis — it’s regularly used as medicine for hormonal imbalances). “Discrimination” against the faithful occurs only insofar as they’re asked to contribute, with the rest of society, to expanding this new coverage to a majority of the workforce. Viewed from this perspective, the burden on religious expression occurs only through the attenuated connection between employer and employee, and only as an incident to otherwise valid and rational regulation, falling squarely into the rule of Employment Division v. Smith, 494 U.S. 872 (1990) (holding that religious belief — here, in the transcendental qualities of peyote — cannot defeat a general rule barring drug use by state employees).

HHS’ expanded coverage requires employers to take no immoral act, other than forfeiting their right manipulate the scope of insurance coverage to control the private moral choices of their non-clerical employees. It makes a full 50% of the population freer, happier, and healthier — but cuts one of the few remaining tethers the religious elites use to control the rest of us. That’s what this fight is really about.