Geoffrey R. Stone's Blog, page 12

Why Did the Republicans Win the House?

I recently overheard the following conversation:



X: "Obama won a solid victory. The people have made their views clear. They stand with the Democratic Party."



Y: "Not so fast. Remember that the Republicans won a big margin in the House of Representatives. It's really a split-decision."



This is interesting. How could the Republicans have won 55 percent of the House seats at the same time that Mitt Romney received only 48 percent of the popular vote? Did that many people split their vote? It turns out the answer is "no."



Although the Republicans won 55 percent of the House seats, they received less than half of the votes for members of the House of Representatives. Indeed, more than half-a-million more Americans voted for Democratic House candidates than for Republicans House candidates. There was no split-decision. The Democrats won both the presidential election and the House election. But the Republicans won 55 percent of the seats in the House. This seems crazy. How could this be?



This answer lies in the 2010 election, in which Republicans won control of a substantial majority of state governments. They then used that power to re-draw congressional district lines in such a way as to maximize the Republican outcome in the 2012 House election.



To give a simple example, imagine four neighboring congressional districts, two of which are 60 percent Democratic and two of which are 60 percent Republican. One would expect that each party would win two seats in the House. But if the Republican state legislature re-draws the district lines so as to make one district 100 percent Democratic, and the other three districts each 67 percent Republican, then instead of each party winning two representatives, the Republicans will win in three of the four districts.



It was by engaging in such "partisan gerrymandering" that the Republican Party was able to turn a Republican defeat in terms of the national popular vote for members of the House into a significant Republican "victory" in terms of the number of Republicans elected. In Pennsylvania, for example, although citizens cast almost 100,000 more votes for Democratic than Republican candidates for the House, partisan gerrymandering enabled Republicans to 12 of the 18 seats in the House of Representatives.



Thus, that the Republicans will control the House for the next two years tells us nothing about how the American people voted on Tuesday, and a lot about how the Republican Party misused its political power in the state legislatures to manipulate the election and frustrate the will of the people.



I hasten to add that the partisan gerrymander is hardly the distinctive province of contemporary Republicans. Politicians of all parties have used the gerrymander from the very beginning of the republic to gain political advantage. Indeed, the word "gerrymander" was used for the first time almost exactly two hundred years ago in the Boston Gazette on March 26, 1812. The term was invented to mock Governor Elbridge Gerry's redrawing of Massachusetts' election districts to benefit his political party. The word was a combination of the Governor's last name and the shape of one of his more oddly shaped districts, which resembled a salamander.



Long-standing or not, partisan gerrymandering is -- and always has been -- an unhealthy part of our political process. As illustrated by the fact that John Boehner will be Speaker of the House for the next two years -- even though his party lost the election by half-a-million votes, partisan gerrymandering undermines democracy. Our constitutional system is premised on the assumption that elected officials should not use the powers of governance in order to manipulate the rules of the game to ensure their own perpetuation in power. Such conduct threatens the very integrity of democratic governance.



Although partisan gerrymandering has been with us from the beginning, it is now worse than ever, because computer modeling enables legislators to design districts that almost precisely maximize their political advantage. The question is: What can we do about it?



The obvious solution is to take the responsibility for drawing district lines out of the hands of elected officials. Several states have already done this by establishing independent commissions that perform this task. This is the approach used in other nations, such as England and Australia. This is clearly a preferable system.



The problem, though, is that the party in control of a state government at any particular moment in time is not eager to change the rules in this way. After all, why should they enact a neutral system that would cause them to lose the power to draw district lines in a way that works to their own advantage? Needless to say, it is unfortunate that legislators put short-term partisan interest above the long-term interest of their citizens, but that, sadly, is too often the nature of politics.



This is a perfect situation for the Supreme Court to break the gridlock. The Court faced a similar situation in the 1960s with the issue of malappportionment. At that time, many states had legislative districts with widely varying numbers of residents. In the typical situation, district lines had been drawn decades earlier when many more people lived in rural areas.



As the population gradually moved predominantly to cities, the lines should have been withdrawn, but legislators from rural districts refused to do so. As a result, situations arose throughout the nation in which an urban district might have ten times as many residents as a rural district, but both had one representative. It was impossible for the states to fix this situation themselves, because the rural districts refused to draw new lines that would reduce their power.



In this situation, the Supreme Court stepped in and held that the Constitution guarantees equal voting rights. It therefore required states to redraw district lines in conformity with the principle of "one person, one vote." All districts in a state, in other words, would have to have approximately the same number of residents. Without the Court's intervention, this dilemma might never have been solved.



The Court should intervene in the context of partisan gerrymandering, where the underlying problem is similar. As Justice John Paul Stevens has observed, the government cannot constitutionally "gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts."



In fact, the issue has often been before the Court, but although the more liberal Justices like Brennan, Marshall, Stevens, and Ginsburg have consistently argued that partisan gerrymandering is unconstitutional, the conservative majority -- Rehnquist, Scalia, Kennedy, Thomas, Roberts and Alito -- have steadfastly refused to invalidate partisan gerrymanders.



Why did the Republicans win the House of Representatives? Don't ask the American people. They didn't do it.

The Perils of Income Inequality

The Sixteenth Amendment to the Constitution, which authorized the federal government to impose an income tax on individuals, will turn 100 years old on February 3. It is unlikely that many corks will pop in celebration. But they should, because the income tax plays a central role in ensuring American democracy. More to the point of contemporary politics, the Sixteenth Amendment was designed precisely to protect the 47 percent of Americans Mitt Romney has reviled.



Before passage of the Sixteenth Amendment, the federal government obtained its funds primarily from tariffs on imported goods. The effect of these tariffs was to artificially raise the price of foreign products and thus to protect American manufacturers from international competition. American workers and farmers paid more for their purchases, while the moguls of industry (whom we would today recognize as "the 1 percent") reaped the benefit.



By the mid-1890s, in the midst of a devastating depression, tariff reform leapt to the front of electoral politics. In order to lower artificially-inflated prices, Populists and Democrats demanded tariff reform. To make up for lost revenue to the government, they proposed a federal income tax. In 1894, congressional Democrats succeeded in enacting such a tax.



But the Supreme Court, then -- as now -- controlled by a coterie of very conservative justices, wasted no time in holding the income tax unconstitutional, thus halting what the majority decried as a "communistic" assault on the sacred right of private property. In an impassioned dissent, Justice Henry Billings Brown castigated the majority's decision as "nothing less than the surrender of the taxing power to the moneyed class."



Adding insult to injury, conservative Republicans in a Senate dominated by a cadre of men representing the boardrooms of corporate America, enacted an even more aggressive tariff. This led to a bitter dispute that eventually split the Republican Party, paving the way for the Democratic Party's capture of the White House by Woodrow Wilson in 1912.



Wilson made tariff reform his first priority. He denounced high tariffs as a hidden subsidy to industrialists, characterizing them as "class legislation"designed to benefit a class that needed no extra help. In 1913, the Underwood Tariff Act, which was supported by a coalition of Democrats and progressive Republicans, cut tariff rates by more than a quarter. To make up for the reduction in federal revenue, Congress once again turned to the idea of a federal income tax.



Because the Supreme Court had ruled a legislated income tax unconstitutional, Congress proposed the Sixteenth Amendmennt, which was enthusiastically ratified by the states. Congress then enacted an income tax that left most workers and farmers untaxed, but focused primarily on corporations and the wealthiest Americans.



The Sixteenth Amendment was therefore not only about raising revenue. In targeting excessively concentrated wealth, the income tax addressed broader concerns about gross income inequality, which Americans rightly considered a menace to democracy.



As Louis D. Brandeis explained at the time, "We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both." Theodore Roosevelt agreed. American civilization, he insisted, must not be "the civilization of a mere plutocracy, a banking-house, Wall-Street-syndicate civilization." Roosevelt openly attacked the "malefactors of great wealth" who imperiled the Republic through their outsize economic and political influence.



The Sixteenth Amendment also laid a vital foundation for the social safety net begun under the Progressives and elaborated upon throughout the twentieth century. The tax on wealth articulated the nation's dedication to a limit on economic inequality. The definition of those limits would change over time, but the role of the federal government in policing them in the interest of a healthy national political community would endure.



It was this community that lay behind Supreme Court justice Oliver Wendell Holmes' applause for the new income tax. "I like to pay taxes," he announced. "With them I buy civilization." By "civilization," Holmes did not mean museums and public libraries, although he enjoyed both. He meant the civic peace and sense of national community and responsibility necessary for American civilization, with its unmatched dedication to political equality, to flourish.



Unfortunately, over the past half-century a succession of Republican administrations, representing the same constituents as those who opposed the income tax a century ago, has lowered the marginal tax rate on the wealthiest Americans from 90 percent under President Eisenhower, to 70 percent under President Nixon, to 50 percent under President Reagan, to 35 percent under President George W. Bush. The consequent income inequality, so celebrated today by Mitt Romney, once again represents a clear and present danger to American democracy.



This piece was co-authored with Jane Dailey, Associate Professor in the Department of History and the Law School at The University of Chicago.

Romney and Roe

We are coming up in January on the 40th anniversary of the Supreme Court's decision in Roe v. Wade. What are the chances that the Supreme Court will overrule Roe if Mitt Romney is elected president?



A reasonable guess at present, based on past performance, is that five of the current justices (Breyer, Ginsburg, Kagan, Kennedy and Sotomayor) would vote to reaffirm Roe, and four of the current justices (Roberts, Alito, Scalia, and Thomas) would vote to overrule Roe.



Thus, for Roe to be overruled, Romney, if elected, would have to have the opportunity to replace at least one of the five justices who support Roe. Based on the life expectancies of those five justices and on past experience, there is at least a 50 percent chance that at least one of those five justices will leave the Court in the next four years.



That does not mean, however, that there is a 50 percent chance that Romney's election will result in Roe being overruled. This is so because not every justice appointed by presidents committed to overruling Roe actually votes to do so. In the years since Roe, three Republican presidents who were clearly opposed to Roe have appointed seven justices to the Supreme Court. President Reagan appointed Justices O'Connor, Scalia and Kennedy; President H.W. Bush appointed Justices Souter and Thomas; and President George W. Bush appointed Chief Justice Roberts and Justice Alito.



Of those seven justices, three failed to vote to overrule Roe. Although they may have questioned the wisdom of Roe, they nonetheless concluded that respect for precedent required them to adhere to Roe. In so doing, they narrowed the scope of Roe in some significant respects, but they reaffirmed the core holding that a woman has a constitutional right to terminate an unwanted pregnancy, subject to reasonable regulation by the state.



Of the other four justices appointed by presidents committed to overruling Roe, two -- Scalia and Thomas -- have already voted unequivocally to overrule Roe. The other two -- Roberts and Alito -- have not yet had occasion to address that question directly. But given their general approach to precedent (they are stunningly quick to overrule prior decisions if they disagree with them), and their hostile approach to abortion-related issues generally, it is virtually certain that they will join Scalia and Thomas in voting to overrule Roe, if given the opportunity to do so.



Thus, if Romney is elected and gets to appoint a justice to replace one of the five justices who currently support Roe, there is roughly a 60 percent probability that that new justice will vote to overrule Roe. If we put these two numbers together, it is reasonable to predict that if Romney is elected there is a 30 percent chance that the Court will vote to overrule Roe v. Wade (60 percent of 50 percent).



In fact, though, the probability is slightly higher than that, because it is possible that more than one of the five justices who currently support Roe will leave the Court in the next four years and that Romney will therefore get two or more bites at the apple. Given that possibility, the odds that Romney will succeed in appointing a justice who will vote to overrule Roe increase to at least 40 percent.



Thus, for those men and women who care about the continuing authority of Roe v. Wade and the constitutional right of women to make decisions for themselves about whether to bear or beget a child, the stakes in this election are very high indeed.

The Boy Scouts, Gays and Parental Responsibility

According to NBC News, the Boy Scouts of America yesterday decreed that Ryan Andresen, who had recently completed the requirement to earn his Eagle Scout Award, "is no longer eligible for membership in Scouting" because he is gay. In the year 2012, this is nothing short of revolting.



The Boy Scout oath requires boy scouts "to help other people at all times," the Boy Scout law requires scouts to be "helpful, friendly, courteous, kind" and "brave," and the Boy Scout handbook requires scouts to "respect and defend the rights of all people." This is all admirable. But how in God's name can the Boy Scouts of America reconcile those purported values with its cruel and hateful discrimination against young boys merely because they happen to be gay? Whatever one might have thought about this issue fifty, twenty or even ten years ago, in 2012 in the United States it is simply immoral. Indeed, both President Barack Obama and Governor Mitt Romney have condemned the Boy Scouts for their policy.



Do the Boy Scouts have a right to exclude gay scouts? In 2000 (the same year as Bush v. Gore), five very conservative justices of the Supreme Court (the same five who decided the 2000 election in favor of George W. Bush) held in Boy Scouts of America v. Dale that the Boy Scouts have a constitutional right to exclude gay scoutmasters. The Court's rationale was simple. The right to associate gives the Boy Scouts a right to choose their own members. Presumably, if some similar organization, say the KKK Scouts, wants to exclude African-Americans, or the WASP Scouts wants to exclude Catholics, they would also have a constitutional right to do.



Boy Scouts v. Dale was a completely unsupportable decision. As Justice John Paul Stevens observed in his powerful dissenting opinion, "we have routinely and easily rejected assertions of this right by . . . organizations with discriminatory membership policies, such as private schools, law firms, and labor organizations. In fact, until today, we have never once found a claimed right to associate in the selection of members to prevail in the face of a State's antidiscrimination law. To the contrary, we have squarely held that a State's antidiscrimination law does not violate a group's right to associate simply because the law conflicts with that group's exclusionary membership policy."



But my central concern here is not about the Constitution. That one has a constitutional right to do something does not mean one should do it. I have a constitutional right to espouse Nazism, but that doesn't mean it is moral or "helpful, friendly, courteous, kind" or "brave" for me to do so. Even if the Constitution protects my right to do something, others are perfectly free to treat it as hateful.



And that brings me to my real complaint. I know many parents who believe that discrimination against gays and lesbians is odious, but who nevertheless let their sons participate in the Boy Scouts. When I ask them about this, they typically look embarassed and say things like, "Well, his friends are all in the Boy Scouts" or "he really likes it."



Frankly, it's time for those people to knock it off. How would they feel about Southern Whites who sent their children in the 1950s to participate in organizations that excluded African-Americans? Would they say, "Well, their friends were in those organizations, so I guess it was fine for their parents to let them participate as well?" I rather doubt it. Indeed, I am quite confident that these otherwise very decent people would rightly condemn others who today allowed their children to participate in organizations that discriminated against African-Americans or Muslims or Catholics or Hispanics.



It is time for parents who condemn discrimination against gays and lesbians to teach their children something about what it means to be "brave" and "to respect and defend the rights of all people." If they permit their children to participate in the Boy Scouts, I can assure them that not too many years in the future their children will look back and say, "What the hell were you thinking?"

Terry Jones and the First Amendment

Are those who condemn Islam and mock Mohammad protected by the First Amendment? There are two arguments one might make to support the proposition that such speech is beyond the protection of the Constitution. First, one might argue that such speech is blasphemous and, as such, is outside the boundaries of the First Amendment.



Historically, supporters of laws against blasphemy have argued that such laws are necessary to avert divine wrath, to enforce conformity with prevailing beliefs, to insulate those beliefs from the contagion of doubt, to protect the sensibilities of believers, and to avoid retaliation by believers against those who deride their beliefs.



During the Middle Ages, the penalty for blasphemy included death, imprisonment on bread and water (often causing a lingering death), cutting off the lips, and burning or tearing out the tongue. During the sixteenth and seventeenth centuries, executions and other brutal punishments for blasphemy were inflicted throughout Europe.



In the American colonies, the Puritans took blasphemy quite seriously. The early Puritan codes declared blasphemy a capital offense. From the 1660s through the 1680s, the Puritans initiated approximately 20 blasphemy prosecutions. In one case, the defendant was prosecuted for calling God a bastard; in another, for stating that the devil was as merciful as God. Although the Puritans never executed anyone for blasphemy, they sometimes whipped, pilloried or mutilated those found guilty of the offense.



By the eighteenth century, however, prosecutions for blasphemy disappeared almost entirely from the American colonies. Although laws against blasphemy remained on the books, they were not enforced. Indeed, by the time of the American Revolution the idea that the government could legitimately punish an individual for disparaging religion had fallen into disrepute, and the law of blasphemy had come to be regarded as a "relic of a dead age."



In the early years of the nineteenth century, however, the Second Great Awakening -- an explosion of evangelical fervor -- spread across the United States, and prosecutions for blasphemy reemerged. In 1811, for example, New York prosecuted one Ruggles for stating in a local tavern that "Jesus Christ was a bastard, and his mother must be a whore." Ruggles was convicted and sentenced to three months in prison and a fine of $500.



Speaking for the New York court that upheld his conviction, Chancellor James Kent, a conservative jurist who viewed religion as the bulwark of the social order, reasoned that blasphemy must be a crime because it "tends to corrupt the morals of the people, and to destroy good order." Christianity, he argued, was an integral part of the law of the land, and blasphemy that "insulted" that religion was "a gross violation of decency and good order." Similar prosecutions followed over the next several decades. Men like John Adams and Thomas Jefferson, who had been deeply involved in the creation of our nation, vigorously condemned these prosecutions. Adams characterized laws against blasphemy as "a great embarrassment" and called for their repeal.



As the force of the Second Great Awakening waned, the demand for blasphemy prosecutions dissipated. Since 1838, there have been only a handful of blasphemy prosecutions in the United States, and a broad consensus has emerged that Jefferson and Adams had it right. In 1952, the Supreme Court of the United States finally put the matter to rest in Burstyn v. Wilson, holding in a unanimous decision that "it is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine" or to protect "any or all religions from views which are distasteful to them." The First Amendment, the Court declared, renders any such government action unconstitutional. Religions and religious figures, like political parties, politicians, businessmen, and other members of society are fair game for criticism, condemnation and even mockery.



The second argument one might make for punishing those who condemn Islam and mock Mohammad is that such speech causes serious harm because those who are offended by the speech will react to it in violent ways. In order to prevent the violence, the government must prohibit the speech. The Supreme Court has long wrestled with this problem. When can the government silence a speaker because his speech will upset or anger others and provoke a violent response?



The Supreme Court first addressed this question more than 60 years ago in Cantwell v. Connecticut. Newton Cantwell (a Jehovah's Witness) was proselytizing in a heavily Roman Catholic neighborhood in New Haven, Connecticut. Cantwell stopped people on the street and played them a record that included an attack on organized religion in general and on the Roman Catholic Church in particular. Because several listeners were incensed and came close to starting a fight, Cantwell was arrested, charged and convicted of inciting a breach of the peace. The Supreme Court unanimously held that Cantwell's speech was protected by the First Amendment, reasoning that, at least in the absence of a clear and present danger of grave harm, the government could not constitutionally punish the speaker.



Now comes the hard case. Suppose Cantwell's speech had in fact triggered a fight, in which several people were injured. Could he then constitutionally be punished for playing the record?



There are two important objections to punishing Cantwell in this situation. First, even though these particular listeners reacted violently, many others would not have done so. Suppose he had played his record to fifty groups of people before anyone reacted violently. Would it make sense to punish Cantwell because in the fifty-first instance the listeners were violent?



Second, suppose we do conclude that Cantwell could be punished because the fifty-first group reacted violently. If Cantwell's opponents know that by acting violently they can get the government to punish Cantwell for saying things they don't like, they have every incentive to act violently in the future. This would create what has been called "the heckler's veto." That is, it would turn over to a speaker's opponents the power to have him criminally prosecuted for his speech.



Apply this to the current situation, and the implications are obvious. If we punish American citizens for engaging in otherwise constitutionally protected speech in order to prevent foreign terrorists from engaging in violent acts, then we cede to those very terrorists the meaning of the First Amendment. That doesn't sound very promising, does it?

The Supreme Court and the 2012 Election

How much of a difference will it make to the Supreme Court whether Barack Obama or Mitt Romney wins the 2012 presidential election? This will depend, of course, on which, if any, of the current Justices step down in the next four years and on whether the president elected in 2012 is successful in filling those vacancies with the kind of nominee(s) he wants.



At the outset, I want to put aside four possible scenarios: (1) Romney is elected and gets no nominations; (2) Obama is re-elected and gets no nominations; (3) Romney is elected and gets to replace Scalia, Kennedy, Thomas, Roberts, and/or Alito; (4) Obama is re-elected and gets to replace Ginsburg, Breyer, Sotomayor, and/or Kagan. These scenarios are uninteresting, because they will not bring about any significant change in the ideological makeup of the Court.



The more interesting question is, what happens if Romney is elected and gets to replace, say, the oldest "liberal" Justice (Ginsburg) or if Obama is elected and gets to replace the oldest "conservative" Justice (Scalia)? In such circumstances, Romney would presumably nominate someone similar to the most recent Republican appointee (Alito), and Obama would likely nominate someone similar to the most recent Democratic nominee (Kagan).



We therefore have two scenarios: if Obama is elected Kagan2 replaces Scalia, and if Romney is elected Alito2 replaces Ginsburg. How would these changes affect the future of constitutional law?



Before going any further, I should note that I am using the terms "conservative" and "liberal" rather loosely. In fact, as several scholars have demonstrated, relative to all Justices who have served in the past seventy-five years, the recent "conservative" Justices (especially Rehnquist, Scalia, Thomas, Roberts, and Alito) have been very conservative. Indeed, they are the five most conservative Justices to serve on the Supreme Court in three-quarters of a century.



By contrast, the "liberal" Justices in recent years (Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan) have been only moderately liberal. They are nowhere near as liberal as Justices like Brennan, Warren, Marshall, and Douglas. They have not been nearly as extreme in their liberalism as recent conservative Justices have been extreme in their conservatism.



Moreover, the two so-called "swing Justices" in recent years (O'Connor and Kennedy) have in fact been quite conservative, though not as extreme in their conservativism as Rehnquist, Scalia, Thomas, Roberts, and Alito.



In the rest of this essay I will therefore refer to the "very conservative" Justices (Rehnquist, Scalia, Thomas, Roberts, and Alito), the "moderately conservative" swing Justices (O'Connor and Kennedy), and the "moderately liberal" Justices (Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan).

Returning now to the possible impact of the 2012 election on the Supreme Court, perhaps the best way to address that question is to look back over the Court's performance since 2000 to see whether any important cases would have been decided differently if Kagan2 had been on the Court instead of Scalia or Alito2 had been on the Court instead of Ginsburg.



To get a handle on this question, I asked several colleagues (without telling them why I was asking) to identify for me the most important constitutional decisions since 2000. They came up with a list of eighteen cases, ranging across the a broad spectrum of issues involving, for example, the 2000 presidential election, gun control, voter disenfranchisement, affirmative action, abortion, habeas corpus, due process for terrorist suspects, takings of private property, the death penalty, campaign finance reform, the freedom of religion, the rights of gays and lesbians, and the Commerce Clause.



For the lawyers among you, the eighteen cases are, in chronological order, United States v. Morrison (2000) Bush v. Gore (2000), Zelman v. Simmons-Harris (2002), Lockyer v. Andrade (2003), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Hamdi v. Rumsfeld (2004), Roper v. Simmons (2005), McCreary County v. American Civil Liberties Union (2005), Kelo v. City of New London (2005), Hamdan v. Rumsfeld (2006), Gonzales v. Carhart (2007), Parents Involved in Community Schools v. Seattle School District No.1 (2007), Crawford v. Marion County Election Board (2008), Boumediene v. Bush, (2008), District of Columbia v. Heller (2008), Citizens United v. Federal Election Commission (2009), and National Federation of Independent Business v. Sebelius (2012).



How did the thirteen Justices who participated in these eighteen decisions vote? The moderate liberal Justices voted for the more liberal position ninety-seven percent of the time (seventy of seventy-two votes). The very conservative justices voted for the conservative position ninety-eight percent of the time (fifty-nine of sixty votes). This shows just how polarized the Justices are. The all-important swing Justices cast nineteen of their twenty-nine votes in line with the very conservative Justices. That is, they joined the very conservative Justices two-thirds of the time. The very conservative Justices were in the majority in nine of the cases and the moderate liberals were in the majority in nine of the cases.



With this information, and re-counting votes, we can reasonably infer that if Kagan2 had been on the Court since 2000 instead of Scalia, the moderate liberals would have won eight of the nine cases they lost and seventeen of the eighteen cases. On the other hand, if Alito2 had been on the Court instead of Ginsburg, the very conservative justices would have won seven of the nine cases they lost and sixteen of the eighteen cases.



In sum, then, we can reasonably conclude that given the current makeup of the Supreme Court a change in the ideology of only one Justice will have a profound impact on the course of constitutional law. Let me say it again for emphasis: Had Kagan2 been on the Court in these years instead of Scalia, the moderate liberals would have won seventeen of the eighteen cases, and if Alito2 had been on the Court instead of Ginsburg, the conservatives would have won sixteen of the eighteen cases.



There is no reason to think that the Court's decisions in the future will not be similarly determined by the replacement of a moderately liberal Justice with a very conservative one or the replacement of a very conservative Justice with a moderately liberal one. The implications for such issues as abortion, same-sex marriage, the establishment of religion, affirmative action, the rights of women, voting rights, congressional authority, the death penalty, gun control, and criminal procedure are dramatic.The stakes in the 2010 election for the future direction of the Supreme Court are, in short, are incredibly high.

American Gunceptionalism

In many respects, the United States Constitution has served as a model for constitutions throughout the world. Of the 188 nations that have written constitutions, the vast majority have adopted fundamental guarantees that were first fully articulated in the United States Constitution.



According to research by professors David Law and Mila Vertsteeg, 97 percent of all the world's constitutions now protect the freedom of religion; 97 percent protect the freedom of speech and press; 97 percent protect a right of equality; 97 percent protect the right to private property; 95 percent protect the freedom against unreasonable searches; 94 percent protect the right of assembly; 94 percent prohibit arbitrary arrest or detention; 84 percent forbid cruel and unusual punishment; 84 percent protect the right to vote; 80 percent prohibit ex post facto laws; 72 percent protect the right to present a defense; and 70 percent protect the right to counsel. These freedoms, which were first constitutionalized in the United States, are now widely recognized as fundamental to a free, humane and civilized society.



On the other hand, only 1 percent of all the other nations of the world recognize a constitutional right to keep and bear arms. Of the 188 nations with written constitutions, only Mexico and Guatemala have followed our example.



Every other nation has rejected the notion that individuals have a constitutional right to own guns. This includes such diverse nations as England, China, Brazil, Iceland, India, Portugal, Turkey, Kenya, Israel, Indonesia, Russia, New Zealand, Pakistan, Germany, Argentina, Vietnam, Canada, Japan, Hondouras, Poland, South Africa, Norway, France -- and 162 others. The idea that individuals have a fundamental right to purchase and possess firearms has been resoundingly rejected by 185 of the world's 188 nations. There are few, if any, questions about which the world's nations are in such universal agreement.



But so what? We are, after all, THE United States, and if other nations don't have the good sense to follow our lead, then that's their misfortune. We are who we are, and we're damned proud of it (mass murders notwithstanding).



These data are interesting not only because they show how peculiar we are in this respect, but also because they shed important light on the meaning of the Second Amendment. What did the Framers have in mind? How could they have had such a peculiar and idiosyncratic notion of individual freedom?



A long-standing puzzle about the Second Amendment is what it actually means. The Amendment provides: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." What is the meaning of this guarantee?



The puzzle turns on which of two possible interpretations of the text makes more sense. The first possible interpretation construes the text as guaranteeing individuals a constitutional right to purchase and possess guns. The second possible interpretation construes the text as guaranteeing individuals a constitutional right to purchase and possess guns for the purpose of serving in the militia. Now, go back and re-read the text.



In its 2008 decision in District of Columbia v. Heller, the Supreme Court, in a sharply-divided 5 to 4 decision, embraced the first of these interpretations. Justice Scalia, joined by Justices Roberts, Kennedy, Thomas and Alito, argued that the Second Amendment guarantees individuals a constitutional right to own guns for any lawful purpose, whether or not their gun ownership is related in any way to serving in the "militia."



In a dissenting opinion, Justice Stevens, joined by Justices Breyer, Ginsburg and Souter, reasoned that a plain reading of the text of the Second Amendment makes clear that it was not intended by the Framers to guarantee a personal right of individuals to own guns for any lawful purpose, but to ensure -- at a time when there were no professional police forces, no national guards and no standing armies - that the government would have the capacity to call up an appropriately equipped volunteer militia whenever it was needed to help preserve the peace.



Thus, in the view of the four dissenting justices, the constitutional right to own a gun was not an individual right, analogous to the freedom of religion, the freedom of speech or the right to counsel, but an instrumental right designed for a very specific and now largely obsolete purpose.



The decision of 99 percent of the world's other nations not to guarantee a constitutional right to own guns is a compelling affirmation of the reasoning of the dissenters in Heller. In a world in which there are now organized and well-armed police forces, national guards and standing armies, there is no longer any need for a citizen militia, and such entities no longer exist in the United States or in most other nations of the world. The need for individuals to own a gun in order to serve in the militia, which was critical in the 1790s, is now moot.



All that is left, then, is the question whether there is a fundamental personal right to own a gun for the sake of owning a gun, and on that question the nations of the world are in agreement -- there is no such fundamental right, any more than there is a fundamental constitutional right to grow marijuana, to skydive, to drive 80 miles per hour, or to own a pet lion.



By distorting the text and meaning of the Second Amendment and ignoring the common sense judgment of the rest of the civilized world, the five conservative justices in Heller fed into and reinforced the NRA's frenzy about guns in America. And by preventing American citizens from engaging freely in the democratic process to decide for themselves what controls on guns are most sensible, those five justices tragically and needlessly set America apart from the rest of the civilized world -- with predictable consequences.



Perversely, a constitutional provision intended to keep us safe has been twisted by the conservative justices on the Supreme Court into one that endangers us all.

"Guns Don't Kill"

After learning of the horrific shooting of 71 people in Aurora, Colorado, I decided to check the National Rifle Association's website to see what the NRA had to say about this national tragedy.



To my surprise, I found... nothing. Although the NRA's site was overflowing with celebratory "news stories" about such matters as the joys of carrying concealed weapons, there was not a word -- not a word -- about the Aurora massacre. There was not a word about the 12 people who were killed or the 59 others who were shot; not a word about the array of weapons used by the killer; not a word about the ease with which anyone in Colorado can obtain automatic weapons; not even a word of sympathy for the families of the victims.



But, of course, why should the NRA have anything to say about this tragedy? As we all know, guns don't kill people, people kill people. This tells us something striking about Americans, by the way, because the average American is 40 times more likely to be killed by gunfire than the average Englishman or Canadian. According to the NRA, this has nothing to do with the fact that guns proliferate in America and are scarce in England and Canada. We just have to face the facts: Americans, unlike Englishmen and Canadians, are murderous by nature. The ready availability of assault weapons has nothing to do with it.



If the United States had the same gun murder rate as England or Canada, approximately 8,500 American men, women and children who were slaughtered by gunfire in 2011 might still be alive today. If the United States had the same gun murder rate as England since 2000, 100,000 murdered American men, women and children might still be alive today.



Of course, it is not only the NRA and its supporters who are accountable for this sorrowful state of affairs. It is also our elected representatives in Congress who have persistently lacked the common sense and courage to renew the federal assault weapons ban, which expired in 2004. This is, by any reasonable measure, a grievous failure of responsible governance.



In the face of this national tragedy, President Obama says this is not the time for politics but for prayer. But this is the time for politics, before we do what we always do after such massacres -- shed some tears, express our grief, say a few prayers, and then quickly go on to do what the NRA wants us to do -- change the subject.

Savaging Roberts: Conservatives Run Amok

In an op-ed published seven years ago, shortly after President George W. Bush nominated John Roberts to serve on the Supreme Court, I chided my fellow liberals for threatening to oppose Roberts. Although Bush had promised to appoint Supreme Court justices like those he most admired -- Antonin Scalia and Clarence Thomas -- I argued that, "in nominating John Roberts, Bush has broken that promise, to the great good fortune of the American people."



I conceded that Roberts would not have been "my choice for the Court." He was, after all, "a dyed-in-the-wool conservative" whose confirmation would clearly "move the Court even further to the 'right.'" But I opined that everything about Roberts suggests "a principled, pragmatic justice who will act cautiously and with a healthy respect for precedent." I predicted that he will decide cases "in an open-minded, rigorous, intellectually honest manner, rather than as an ideologue whose constitutional principles derive more from fiction and faith than from legal reason."



For the past seven years I have pretty much eaten those words. Almost without exception, Chief Justice Roberts has adhered to a rigid and generally extreme conservative line. Moreover, in so doing, he has often acted in complete disregard of precedent and of the much-celebrated conservative principle of judicial restraint. Examples include the Court's decisions on such diverse issues as late-term (so-called "partial birth") abortion, the death penalty, campaign finance, affirmative action, gun control, and the rights of Guantanamo detainees. Like Justices Scalia, Kennedy, Thomas and Alito, Roberts has consistently interpreted the Constitution in ways that mimic conservative political ideology. He has, in short, been a great disappointment -- at least to me.



Now, finally, with his vote in the Affordable Care Act case, I have suddenly been... vindicated! After all, I did say in that 2005 piece that, "like many conservative appointees, there is every reason to believe that Justice Roberts will gradually drift to the 'left,' following in the footsteps of Justices Blackmun, Powell, Stevens, O'Connor, Kennedy, and Souter. Appointed as conservatives by Republican presidents, each of these justices evolved over time. Because they were not tethered to an inflexible ideology, they remained open-minded and continued to learn and to grow during their time on the Court." Has Justice Roberts now begun to "drift"?



It is, of course, much too soon to know whether Roberts' vote to uphold the Affordable Care Act implies that he is finally coming to his senses. This may be much ado about nothing -- merely a one-off hiccup in an otherwise long, depressing and dependably very conservative tenure.



What is most interesting to me about the current situation is not Roberts' vote, but the stunningly venomous conservative response. Conservatives are furious with John Roberts. But why? Sure, he disappointed them, but justices often disappoint their fans. Their job, after all, is to apply the law in a neutral and detached manner, not to please any particular political faction.



Many justices have voted for positions that disappointed their fans. Justice William O. Douglas voted to uphold the Japanese-American internment in World War II. Chief Justice Warren Burger upheld the right to abortion in Roe v. Wade. Justice William Rehnquist voted to require President Nixon to turn over the infamous White House tapes as part of the Watergate investigation. Justice Ruth Bader Ginsburg voted against granting President Bill Clinton immunity in the Paula Jones case. Justice Felix Frankfurter voted to uphold the constitutionality of the compulsory flag salute. Yet in none of those instances did the fans of these justices excoriate them with the sort of vituperation that conservatives have directed at Chief Justice Roberts.



Indeed, some of Roberts' critics are so upset that they've completely lost their constitutional bearings. Although they cheered the Chief Justice when he voted to hold unconstitutional affirmative action programs, gun control laws, campaign finance regulations, and laws regulating corporate commercial advertising, they lambasted him for upholding the Affordable Care Act because he had "abandoned the principle of judicial restraint." Talk about being befuddled by anger. The earlier cases were all classic examples of aggressive judicial activism (because they overturned acts of the elected branches of government), whereas the Affordable Care Act decision was a classic example of judicial restraint (because it gave the benefit of the doubt to the elected branches). These conservative critics seem to define "judicial restraint" as decisions they like and "judicial activism" as decisions they dislike. This is Alice in Wonderland jurisprudence!



Why have conservatives gone over the cliff in their anger at Roberts? Why can't they just accept that the Chief Justice disagreed with them about one of several very complex constitutional issues presented in this case? The answer, I think, goes back to Bush v. Gore. Although the Supreme Court has always been accused on occasion by one side or the other of being "political" in its decision making, in the twelve years since Bush v. Gore the conventional wisdom has come to accept that justices now do little more than vote their politics -- or, more accurately, the politics of their "constituents."



Unfortunately, the current Court has done little to dispel this dangerous belief. With five-to-four decisions in virtually every important case, and with the four very conservative justices almost invariably lined-up on one side, the four moderate liberal justices lined up on the other, and the (generally) conservative Anthony Kennedy usually casting the deciding vote, the public has come to see eight of the nine justices -- and especially those in the very conservative bloc -- as completely predictable in their judging: they are expected to vote the way conservative politicians would vote on the laws being challenged.



Conservatives have come to think of Roberts, Scalia, Thomas and Alito as "their" boys, as if they had elected them to do their bidding. What infuriates them about Roberts at the moment is that he has betrayed their expectations by revealing an unexpected independence of mind. The fault for this deplorable state of affairs -- in which conservatives think of Roberts, Scalia, Thomas and Alito as their representatives on the Court -- lies squarely with the conservative justices themselves. By voting reflexively for conservative political positions, and even worse by their occasionally blatant political partisanship, they have created the expectation that the Supreme Court, or at least their wing of the Court, is merely an appendage of the Republican Party.



If the conservative justices had been more modest, more respectful of precedent, and more fair-minded in their jurisprudence, they would not have created this expectation. Chief Justice Roberts is now paying the price of being seen as a turncoat. Hopefully, the lesson he will take away from this sorry episode is not that he must get back in line, but that he must finally become the Chief Justice he promised to be in 2005.



This piece was co-authored with Jane Dailey, Associate Professor in the Department of History and the Law School at The University of Chicago.

'The Broccoli Horrible': Ginsburg Shreds Roberts

In its decision today upholding the constitutionality of the Affordable Care Act, the Supreme Court, by a five-to-four vote, held that the individual mandate provision (requiring uninsured individuals who can afford to buy health insurance to do so) was justified by the Congress' power to tax, but not by its power to regulate interstate commerce. In the end, the difference may seem insignificant. When all the dust settled, the individual mandate is constitutional. But it is nonetheless worth understanding the disagreement about the reach of the Commerce Clause, because this was the primary focus of most of the public debate leading up to the decision and was also the subject of the wildly popular broccoli hypothetical.



Only one justice thought the Act was constitutional under the taxing power but not the commerce power -- Chief Justice Roberts. The other eight justices thought the Act was either constitutional (Ginsburg, Breyer, Sotomayor, Kagan) or unconstitutional (Scalia, Kennedy, Thomas, Alito) under both provisions.



To understand why Ginsburg, Breyer, Sotomayor and Kagan were right about the constitutionality of the Act under the Commerce Clause (even though they lost five-to-four on that issue), I have reprinted below a heavily-edited and abridged (by me) excerpt from Justice Ginsburg's dissenting opinion on the Commerce Clause issue. In my view, it absolutely shreds the opposing view and, in any event, is an excellent primer on the question:

By any measure, the health care market is immense, accounting for 17.6 percent of our Nation's economy. Moreover, unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate. Moreover, on average, an individual in the United States incurs over $7,000 in health-care expenses each year. To manage the risks associated with medical care -- its high cost, its unpredictability, and its inevitability -- most people in the United States obtain health insurance.

Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured, either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid. As a group, uninsured individuals annually consume more than $100 billion in health-care services.

Unlike markets for most products, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient's ability to pay. As a consequence, medical-care providers deliver significant amounts of care to the uninsured for which the providers receive no payment.

Health-care providers do not absorb these bad debts. Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay. In response, private insurers increase their premiums, shifting the cost onto those who carry insurance. The net result: Those with health insurance subsidize the medical care of those without it.

The size of this subsidy is considerable. Congress found that the cost-shifting just described "increases family [insurance] premiums by on average over $1,000 a year." Higher premiums, in turn, render health insurance less affordable, forcing more people to go without insurance and leading to further cost-shifting. Congress therefore passed the individual mandate provision of the ACA to address an economic and social problem that has plagued the nation for decades.

* * * * * * *

The Commerce Clause was the Framers' response to the central problem that gave rise to the Constitution itself. What was needed was a "national Government ... armed with a positive & compleat authority in all cases where [national] measures are necessary." (Quoting James Madison.) The Framers' solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation "in all Cases for the general Interests of the Union." (Quoting Alexander Hamilton.)

Consistent with the Framers' intent, we have repeatedly emphasized that Congress' authority under the Commerce Clause is dependent upon "practical" considerations. Until today, this Court's pragmatic approach to judging whether Congress validly exercised its commerce power was guided by two familiar principles. First, Congress has the power to regulate economic activities "that substantially affect interstate commerce." Second, we owe a large measure of respect to Congress when it frames and enacts economic and social legislation. When appraising such legislation, we ask only (1) whether Congress had a "rational basis" for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a "reasonable connection between the regulatory means selected and the asserted ends."

Straightforward application of these principles would require the Court to hold that the individual mandate provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Not only do those without insurance consume billions of dollars of health care each year, but their inability to pay for a significant portion of that consumption drives up market prices, foists costs on other consumers, and reduces market efficiency and stability. Given these far-reaching effects on interstate commerce, the decision to forego insurance is hardly inconsequential or equivalent to "doing nothing."

* * * * * * *

Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to "compe[l] individuals to become active in commerce by purchasing a product." THE CHIEF JUSTICE's novel constraint on Congress' commerce power gains no force from our precedent and for that reason alone warrants disapprobation.

But even assuming that Congress lacks authority under the Commerce Clause to "compel individuals not engaged in commerce to purchase an unwanted product," such a limitation would be inapplicable here. Everyone will, at some point, consume health-care products and services. Thus, if THE CHIEF JUSTICE is correct that an insurance purchase requirement can be applied only to those who"actively" consume health care, the minimum coverage provision fits the bill. More than 60% of those without insurance visit a hospital or doctor's office each year, and nearly 90% will do so within five years.

THE CHIEF JUSTICE draws an analogy to the car market. An individual "is not 'active in the car market,'" THE CHIEF JUSTICE observes, simply because he or she may someday buy a car. The analogy is inapt. The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.

Underlying THE CHIEF JUSTICE's view that the Commerce Clause must be confined to the regulation of active participants in a commercial market is a fear that the commerce power would otherwise know no limits. As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. One could call this concern "the broccoli horrible." Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual's failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the "hypothetical and unreal possibilit[y]" of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of heroin. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

For the reasons explained above, the minimum coverage provision is valid Commerce Clause legislation.