Supreme Court

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“

Lochner’s Role in Framing the Individual Mandate

The Volokh Conspiracy and Wall Street Journal both take issue with President Obama’s clarification of yesterday’s remarks, in which he makes clear that he has no issue with judicial review writ large — only with any Supreme Court decision that would review economic legislation with something less than heavy deference. The Journal:

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause….

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

But the state/federal distinction is irrelevant to President Obama’s explicit point — that a decision against the mandate would be the first in almost a century to limit Congress’ authority to regulate economic markets — and his implied point, that using “economic freedom” as an argument against economic regulation is simply a dead issue, and has been since (yes) the 1930s. From West Coast Hotel v. Parrish, 300 U.S. 379 (1937):

The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.

And restated in the federal context, in upholding the Civil Rights Act of 1964:

Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may – as it has – prohibit racial discrimination by motels serving travelers, however “local” their operations may appear.

Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself.

And again in a companion case:

 But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

In other words, the notion that substantive due process creates a right to be free from reasonable economic regulation is dead. This was the President’s point. Whether it died on a battlefield reserved for state-vs.-federal conflicts, or intra-federal system conflicts, is irrelevant, because wherever the “right” died, it can no longer take either field. If the Supreme Court limits the Commerce Clause on the basis of some right to “economic freedom,” it will be new, it will be groundbreaking, and it will be a throwback to the pre-1930s era.

Make This Election About the Court

With last week’s arguments safely behind us, President Obama has taken the first steps towards spinning the case, saying:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress.

I’d just remind conservative commentators that for years all we’ve heard is that the biggest problem is judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, here’s a good example.

Naturally, right-leaning sites are reporting and commenting on only the first paragraph, to paint the President as an out-of-touch hypocrite, unable to draw the distinction between good “activism” (Boumediene on CSRTs) and bad “activism” (ObamaCare). This is a line of attack the President can avoid — even though he shows no signs of taking any steps to avoid it — by making this election about first the members of the Court, and not its powers.

A decision invalidating the individual mandate would be unprecedented, but not for the reasons President Obama identifies. It would be unprecented as the very first time, ever, that the Supreme Court invalidated a congressional attempt to regulate an economic market under the Commerce Clause. Ever. It would also represent the first time since the New Deal that the Court stood directly toe-to-toe with a President over the centerpiece of his domestic agenda. That didn’t end so well for the Court last time — President Franklin Roosevelt waged an unrelenting war on the Court’s legitimacy, leading them to ultimately repudiate a vision of the Due Process Clause that barred even workplace safety rules — and it’s time for President Obama to take a page from that book.

With decision after decision in the last few years, the Court has managed to tip so far to the right as to steadily erode its legitimacy as an apolitical actor. D.C. v. Heller – which “found” for the first time a constitutional right to bear arms — was probably legally correct, but still a bolt from the blue. Citizens United wrote Mitt Romney’s laugh line (“Corporations are people, my friend!”) into the U.S. Reporter, surprised legal commentators, garnered stern presidential rebuke, sparked Occupy Wall Street, and launched a prolonged campaign of public ridicule. And just yesterday, the Court held that police may constitutionally conduct strip searches for any offense. I don’t actually know the law on that last bit, but (momentary conservative doublethink notwithstanding), Fourth Amendment freedom from absurd search protocols seems to have, magically, become a valence issue, adored by both right and left. What I’m getting at is, if the Court were trying to alienate voters, they could hardly do a better job of it.

President Obama’s challenge is to channel that outrage, through an issue where public polling is considerably murkier, into generalized bipartisan concern for the Supreme Court’s doctrinal dalliances. He needs to paint any adverse ObamaCare decision — or any thin margin on a decision upholding the Act — as a sign that, regardless of what anyone thinks about the constitutionality of the mandate itself, the Court has become unhinged from constitutional reality, and simply started handing down decisions based on the members’ political preferences. ThinkProgress has the right idea; and we might also note Justice Thomas’ wife’s heavy involvement with the Tea Party. This is a message that can work, if carefully crafted and skillfully deployed. But over the course of the past three years, that’s a combination this White House hasn’t managed to pull off, ever.

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.

That Said, Why Did Conventional Wisdom Fail?

Let’s assume that Tuesday’s argument on the individual mandate wasn’t what any reasonable proponent should’ve expected, and that the Justice’s questions are cause for alarm. Why was every serious legal academician wrong? Two reasons. First, this is a Supreme Court that’s defied convention again and again, making them the most “activist” and conservative Court in recent memory. Neither a personal right to bear arms nor a speech right to override campaign finance laws had any serious support before the Roberts term. Second, this may be a more politically sensitive Court. Justice Thomas has always had extremist views of federal power; seeing the Tea Party grow up around has probably convinced him that his time has come. If he’s even halfway convinced his colleagues that paleoconservative orthodoxy is the new normal…

ObamaCare: The Sky Is Not Falling

Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate matters, tried in vain to maintain some semblance of calm. Let me now add my own sentiment: settle the eff down.

To anyone who expected ObamaCare’s individual mandate to be upheld by a margin of 7-2 or higher, yesterday served as a rather rude reawakening: Alito and the silent Thomas, at least, are lost votes, and likely Scalia as well. But from it’s a long ways from 6-3 to uphold to 5-4 to invalidate, and there’s no reason to think that yesterday’s arguments bridged that gap.

State of Play

True, Kennedy and the Chief Justice alike beat the U.S. Solicitor General, Donald B. Verrilli, pretty bloody. Kennedy and Roberts focused their abuse on the question of whether the government could articulate a plausible “limiting principle” — a legal idea that stops an exception from swallowing the rule — to restrain whatever expansion of government power the individual mandate entails. This General Verrilli appeared only able to manage after the conspicuous assistance of Justices Ginsburg and Breyer.

And true, Roberts and Kennedy both seemed skeptical of his answers. But only to a point — Kennedy himself closed a question posed to amici by suggesting that he’d been partially persuaded by the government’s position, and had located an appropriate limiting principle by focusing on the uniqueness of the insurance markets, and the government’s decision to limit itself to regulating only method of payment:

The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case. (Tr. 104)

Elsewhere, Kennedy pushed back on respondent’s claim that the government was impermissibly creating economic activity in order to regulate it:

But [the uninsured] are in the market in the sense that they are creating a risk that the market must account for. (Tr. 70)

This should be the takeaway. Regardless of how long it took to get there, General Verrilli managed to convince five justices that the insurance market is unique in a way that may justify otherwise extraordinary regulatory powers; and that the action/inaction distinction is not nearly as problematic as it seems superficially.

Moreover, the Court posed tough questions on all sides. The questioning was remarkable only for its partisanship: during the Solicitor General’s turn, right-leaning justices conspicuously attacked, while left-leaning justices conspicuously defended. During respondent’s turn, the position reversed. And throughout, Kennedy and Roberts played both sides. If we can draw hints from argument — a practice indulged in by court-watchers more for sport than out of any expectation of accuracy — we start to see a four-Justice bloc to sustain (Breyer, Ginsburg, Kagan, Sotomayor); a three-Justice bloc to invalidate (Alito, Scalia, Thomas); one weakly left-leaning swing vote (Kennedy); and one weakly right-leaning swing vote (Roberts).

Ego and Guesswork

If that is the state of play, Jeff Toobin’s grim forebodings don’t make a bit of sense, especially given the theories he’s put forward about how the Court operates. Recall that Toobin sees Kennedy as something of an egomaniac, a justice who loves his position as the swing vote, and tends to deploy it to maximize his own importance. If Kennedy wanted to see himself go down in history as ObamaCare’s savior, defender of the progressive movement in its most desperate hour, this is exactly how he would conduct himself at argument. Query, too, whether Kennedy wants his enduring legacy to be as the man who took the Commerce Clause to the right of even Rehnquist; or as the architect of the keystone decision that finally brought stability to twentieth century Commerce Clause jurisprudence. Either way, it’s one for the history books. But which makes a better story?

The Role of the Chief

Moreover, if Kennedy breaks left, there’s reason to suspect he’ll draw Chief Justice Roberts with him. If Roberts sees the Court voting to sustain, there’s no practical reason for him to stick to his principles and vote with the conservative minority when, by switching sides to vote with a liberal majority, the Chief could both assign the opinion to a Justice he can trust to minimize the decision’s doctrinal effect, and build the Court’s legitimacy by preventing yet another controversial case from dividing 5-4 on partisan lines.

*     *     *     *     *

Yesterday’s arguments proved that the case won’t be as easy as it should be, doctrinally. But did we really expect anything different with this Court?

Vetiver, “Wonder Why?”

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.