Tuesday, October 20, 2020

Court Packing for the Bewildered

“The Supreme Court of the United States shall be composed of nine justices.” [1] That is the language of the proposed constitutional amendment introduced by Senator Ted Cruz and five other Senate Republicans in order to counter the Democratic threat to add justices to the Supreme Court—to pack the Court as they say.

The Democrats are concerned that with the imminent confirmation of Amy Coney Barrett to the top court a “conservative” majority of the Court will be locked in for years to come. Hoping to prevail electorally in the upcoming presidential vote, and to flip the Senate to Democratic control, adding justices will allow them to swing the ideological make up of the Court in a more “liberal” direction. The Republicans, meanwhile, pleased at the thought of a Supreme Court that will put the kabosh on Democratic sponsored legislation on “constitutional grounds,” want to do what they can to keep the number of justices where it is.

Now the careful observer will note that this is an issue on which the parties may switch sides in the future. It is a characteristic of politicians to project current matters of concern into eternity, apparently believing that party alignments will always rest where they are at present. Henry Ford infamously said something close to “history is bunk,” [2] and politicians seem to have absorbed the maxim. 

It should be pointed out here that there is actually a nonpartisan reason for increasing the number of justices. Historically, each Supreme Court justice has been assigned one or more circuits of the Court of Appeals from which he or she would hear appeals from cases that were still pending in the lower appellate court. The number of federal circuits has risen to thirteen, and so there is a sound reason to raise the Supreme Court justices to that number regardless of political considerations. On the other hand, we’ve had nine justices for 150 years, and there isn’t an earth-shattering reason to increase the number for any non-political reason.

There is an extant proposal to raise the number of justices to twenty-seven or more. [3] The problem with that idea is that cases coming before the Supreme Court would likely be heard by panels, not consisting of the entire Court, which is how cases before the Courts of Appeal are usually handled. But that wouldn’t work on the Supreme Court from which we have come to expect final decisions, and rulings that become the law of the entire nation. We can’t have rulings from a part of the Court binding the entire Court, and we can’t have one panel of the Court deciding similar cases differently than other panels. So, we’re going to have to keep the number at a level where the entire Court hears every case. And increasing the number of justices every time the other party comes to power would be politics run amok.

The answer to the problem is the same as it has always been: judicial restraint. I don’t mean that in the way that some partisans do. I don’t mean that judges shouldn’t make law. This is a common law country, and that means that judges do, in fact, make law; and always have, going back to England. That’s why the decisions of the Supreme Court become binding precedent for lower courts, and ought to serve as a restraint on future decisions of the Supreme Court.

William Blackstone explained the common law rule pertaining to precedent this way:

 “For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England, that whenever a standing rule of law of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.

“The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration.” [4]

Blackstone was writing in and for England, which had an established church; and our judges, for good or for ill, wouldn’t be authorized to consider Divine law. But there’s nothing that would stop them from considering right and wrong in the natural law sense, should belief in same again become current. With that proviso, if justices restricted themselves to overruling precedent that was “flatly absurd or unjust,” we might not have these political controversies surrounding their appointment. I hasten to add that Plessy v. Ferguson, which upheld the constitutionality of racial segregation, would most certainly fall into the flatly absurd or unjust category.

Reasons justifying the overturning of precedent have expanded somewhat since the days of Blackstone. [5] But it would be useful if our modern justices would abstain from overruling prior cases simply because they disagree with the reasoning contained in them. It would go far toward keeping Supreme Court appointments from becoming political theater.

Sunday, September 27, 2020

Restore the Grand Jury

By now it is widely known that a Kentucky “grand jury decided to not charge any officer in the killing of Breonna Taylor, instead indicting one former detective for recklessly firing into another apartment during the raid of Ms. Taylor’s home.” [1] The charged officer was indicted for “endangering Breonna Taylor’s neighbors by recklessly firing his gun during a raid on her apartment in March, but the two officers who shot Ms. Taylor were not charged in her death.”

The response has been, predictably, outrage. Kentucky Attorney General Daniel Cameron on the other hand has insisted that “the grand jury was given all of the evidence,” [2] in order to reach its decision. But, as of now, that is a claim that can’t be substantiated. Grand jury proceedings are secret, and the public has, and will have, no access to the evidence that was presented to it by the prosecutor, unless a specific decision is made to disclose the grand jury transcript.

There are sound policy considerations behind the secrecy of grand jury proceedings. Witnesses are more likely to come forward under such an arrangement, and those suspected of crime, but not indicted, are spared public obloquy. But in cases involving police shootings, there is always the suspicion that the prosecutor has deliberately presented a weak case, withholding evidence that will result in an indictment.

We have become accustomed to a procedure where the prosecutor essentially controls grand jury proceedings. Most often the prosecutor will guide a grand jury toward making a charge. There is the famous quip that a prosecutor can convince a grand jury to indict a ham sandwich. And since there is no defense attorney present to counter the prosecutor’s case, and the grand jury hears only the prosecutor’s evidence, there is reason to believe that the quip reflects a certain reality.

But there are cases where a prosecutor might have an interest in avoiding a charge. Cases involving governmental corruption is one example, particularly where the prosecutor is involved in the misconduct. An improper police shooting is another.

Prosecutors have an ongoing relationship with the police, and a culture develops where prosecutors and the police see each other as being on the same side in the fight against crime. The result is that there is a reluctance on the part of prosecutors to bring charges against police officers, even in cases where police misconduct is clear. Bringing in the state attorney general to handle such cases rather than the local prosecutor is no answer, because the same cultural factors are at work.

Even where the prosecutor is able to overcome these somewhat natural tendencies, there is the matter of public perception. In a case like the lethal shooting of Breonna Taylor, it is impossible to avoid the suspicion that corruption is at work when no charges are filed. The result is a lack of public confidence in the criminal justice system, which serves no legitimate societal interest.

It will seem to some a strange remedy to restore the historical grand jury, since it is the grand jury system which seems to have failed in this case. But that is precisely what your humble servant proposes. Because what we have now is not the grand jury as originally conceived, but a grand jury system that has been diluted and transformed into a tool of professional prosecutors. It was not always so.

Indeed, originally, cases could be brought before a grand jury by private parties. [3] And a grand jury didn’t even have to wait for someone to do that. They could, on their own, take notice of or investigate criminal activity, and prepare a presentment, which was the way of making a charge against someone where no one had requested an indictment. In sum, grand juries weren’t under the control of public prosecutors in the way that they are now.

In this scenario, the attorney for Breonna Taylor’s family would be able to present the case before the grand jury. In this way, there would be no concern that the prosecutor was deliberately going light on the evidence in order to avoid an indictment.

Perhaps it will be of comfort to some that this is not some radical proposal. It is one which suggests nothing more than that grand juries return to their original functioning. And it would doubtlessly increase public confidence in grand jury findings, which is always a critical consideration, especially in times like these.  

Friday, August 14, 2020

When Oxen Are Gored

 

Sometimes to properly understand something it is necessary to begin at the beginning. Here the beginning is to be found in the Supreme Court case of Sherbert v. Verner, 374 U.S. 398 (1962)

Adell Sherbert “became a member of the Seventh-day Adventist Church in 1957, at a time when her employer, a textile-mill operator, permitted her to work a five-day week. It was not until 1959 that the work week was changed to six days, including Saturday, for all three shifts in the employer’s mill.” [1]

She “was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. When she was unable to obtain other employment because from conscientious scruples she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act. That law” provided “that, to be eligible for benefits, a claimant must be ‘able to work and…available for work’; and, further, that a claimant is ineligible for benefits ‘[i]f…he has failed, without good cause…to accept available suitable work when offered him by the employment office or the employer…’

“The…Employment Security Commission, in administrative proceedings under the statute, found that” Ms. Sherbert’s “restriction upon her availability for Saturday work brought her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept ‘suitable work when offered…by the employment office or the employer….’” Ms. Sherbert challenged this in the state courts on the ground that it violated her right to the free exercise of her religion under the First Amendment. The case made its way to the South Carolina Supreme Court which held that Ms. Sherbert’s “ineligibility infringed no constitutional liberties because” it placed “’no restriction upon’” her “’freedom of religion nor’” did “’it in any way prevent her in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience.’” It just meant that she had to work on Saturday, in violation of a tenet of her religion, or lose the right to unemployment benefits.

The matter went before the United States Supreme Court on appeal, which reversed the state court. “The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such,” the Court said. “Government may neither compel affirmation of a repugnant belief…nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities…nor employ the taxing power to inhibit the dissemination of particular religious views….”

But the Court recognized that this constitutional protection is not absolute. The Court had previously “rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for ‘even when the action is in accord with one’s religious convictions, [it] is not totally free from legislative restrictions.’” However, the “conduct or actions so regulated” had “invariably posed some substantial threat to public safety, peace or order.” Human sacrifice would have been an extreme example of the sort of religious practice subject to prohibition under this rule.

Ms. Sherbert’s “conscientious objection to Saturday work,” however, clearly constituted “no conduct prompted by religious principles of a kind within the reach of state legislation.” It involved no “substantial threat to public safety, peace or order.” And there was no doubt that there was government infringement of the free exercise of her religion since it was understood at that time that if “’the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.’” Not just the purpose, but the effect as well.

“Here not only” was “it apparent that” Ms. Sherbert’s “declared ineligibility for benefits” derived “solely from the practice of her religion, but the pressure upon her to forego that practice” was “unmistakable. The ruling” forced “her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice put the same kind of burden upon the free exercise of religion as would a fine imposed against” her “for her Saturday worship.”

Having made that determination, the Court next considered “whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute” justified “the substantial infringement of” Ms. Sherberts’s “First Amendment right.” This is because the Court considered it “basic that no showing merely of a rational relationship to some colorable state interest would suffice; in” such a “highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests,’” could “’give occasion for’” a “’permissible limitation,’….”

South Carolina could find no such justification. It suggested “no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work.” But there had been “no proof whatever to warrant such fears of malingering or deceit as those which” South Carolina advanced. Moreover, “even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly” have been incumbent on the state “to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”

The rule that emerged from the Sherbert case was that, in Free Exercise of religion cases, courts were to first determine whether the right to freedom of religion had been infringed. If it had, the determination was to be made whether the infringement was necessitated by a “compelling state interest,” which had to be more than “a rational relationship to some colorable state interest.” It had to involve serious matter that endangered “paramount interests.” Only then could a Free Exercise interest be regulated, and that only if the state could demonstrate that there was no alternative form of regulation that could deal with the issue without infringing on the free exercise of religion.

But in 1990 a sea change took place with the case of Employment Division v. Smith, 494 U.S. 872 (1990). [2] This case involved an Oregon law that prohibited “the knowing or intentional possession of a ‘controlled substance’ unless the substance” had “been prescribed by a medical practitioner.” One of those controlled substances was peyote.

“Alfred Smith and Galen Black…were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members. When respondents applied to” the “Employment Division…for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related ‘misconduct.’” Smith and Black challenged this ruling on Free Exercise grounds, and the case eventually made its way to the U.S. Supreme Court.

The Court in an apparent, but not explicit, rejection of the Sherbert case rejected the contention of Smith and Black “that their religious motivation for using peyote” placed “them beyond the reach of a criminal law that” was “not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They” asserted, “in other words, that ‘prohibiting the free exercise [of religion]’ includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires).”

Of course, under Sherbert, that is exactly the result that should have obtained. Sherbert held that there was an infringement of the First Amendment where the “purpose or effect” of a law was to prohibit the free exercise of religion. But Smith held that there was no First Amendment violation at all so long as the purpose of the law wasn’t directed at religion, and the effect was of no consequence. Therefore, there was no reason to consider whether the state had a compelling interest in applying the law to members of the Native American Church. The upshot was that, from that point, a religious practice was protected until the government decided that it wasn’t, so long as it did it by means of a law that applied to everyone. A state could prohibit circumcision on ostensible medical grounds, and the fact that the law struck directly at a Jewish practice would be of no consequence. That’s a helluva thing to do to the First Amendment.

It’s noteworthy that the majority opinion in the Smith case was written by Justice Antonin Scalia, who during his life was called a “conservative.” The dissenting justices were Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade; Justice William Brennan, who had written the majority opinion in Sherbert, and is known to history as a “liberal,” who had opined against the death penalty; and Thurgood Marshall, another “liberal,” who had successfully argued the case in Brown v. Board of Education.

The widespread response to Smith was outrage. [3] Both religious and civil liberties groups considered it an assault on the constitutional right to freedom of religion. Minority religions were most endangered, of course, but even some Christians would be prevented from taking communion by a generally applicable town ordinance against the consumption of alcohol. And, as expected, both federal and state courts began applying Smith to deny Free Exercise claims.

A push for federal legislation ensued, backed by diverse groups such as the National Association of Evangelicals, the American Civil Liberties Union, and the evangelical Concerned Women for America, along with many other groups. The idea was to restore the Sherbert test by congressional enactment, preventing governmental restriction of the free exercise of religion unless a compelling state interest could be shown.

Eventually a bill was introduced in the House of Representatives by Rep. Charles Schumer (D-NY)—yes, that Charles Schumer—which passed by voice vote. A similar bill was introduced in the Senate by Edward Kennedy (D-Mass)—yes, that Edward Kennedy, but the Senate passed the House version instead by a vote of 97 to 3 [4], and signed into law by President Bill Clinton. The law, the Religious Freedom Restoration Act (hereinafter “RFRA”) provides that

“Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

“(1) is in furtherance of a compelling governmental interest; and

“(2) is the least restrictive means of furthering that compelling governmental interest.” [5]

And, thus, for federal cases, the Sherbert test was legislatively reinstated.

The RFRA got a major test in the Supreme Court case of Burwell v. Hobby Lobby Stores, decided on June 30, 2014. [6] At issue in this case were Health and Human Services (HHS) regulations requiring employee health plans under the Affordable Care Act to cover certain contraceptive methods, including four methods that were potentially abortifacient.

Nonprofits were exempted from the requirement if they objected to providing such coverage on religious grounds. When the group-health-insurance issuer received notice that the nonprofit had invoked the exemption, it was required to remove contraceptive coverage from the employer’s plan, but then provide contraceptive coverage for the employee at its own expense. HHS had determined that this obligation wouldn’t impose any net expense on the issuers because of the cost savings resulting from the services.

The case involved three closely held, for-profit, corporations, (hereinafter, the “Hobby Lobby companies”) who objected, on religious grounds, to providing coverage for the four potentially abortifacient methods. A closely held corporation is one that has “more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year,” [7] with an exception not pertinent here.

The Court held that “that  the  regulations  that” imposed “this  obligation”  violated  “RFRA,  which  prohibits  the Federal Government from taking any action that substantially  burdens  the  exercise  of  religion  unless  that  action  constitutes the least restrictive means of serving a compel-ling government interest.” In doing so, it rejected “HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA,” the Court held, “make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.” To hold otherwise, of course, would have exalted form over substance, particularly since the holding was not extended to include corporations that were publicly traded, or, indeed, not closely held.

“Congress provided protection for people like” the owners of the closely held corporations involved in the Hobby Lobby case “by employing a familiar legal fiction: It included corporations within RFRA’s definition of ‘persons.’  But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.  For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being.  And protecting the free-exercise rights of corporations like Hobby Lobby…protects the religious liberty of the humans who own and control those companies.”

Now it was clear that the regulation infringed on the religious freedom of the owners of these closely held companies. But assuming that the government was, by the regulation, furthering a compelling governmental interest, it remained to be determined whether it was utilizing the least restrictive means.

That case couldn’t be made, because the HHS was already providing an alternative means for those entities that were specifically exempted by the regulation. The insurer was to separately issue coverage without cost to the religious non-profit entity or to the employee beneficiaries. Thus, contrary to polemic to the contrary, women who worked for religious companies weren’t being deprived of any contraceptives, and that free of cost.

The Hobby Lobby companies thus prevailed, and it was precisely the result that would have been obtained under the Sherbert test. The irony here is that when the Smith case was decided, it was the “liberal” justices who dissented, and “liberal” members of Congress who introduced the RFRA in response. Now it was the “conservatives” championing the RFRA, and the “liberals” who were objecting. As the adage goes, it all depends on whose ox is being gored.

This brings us to Zubik v. Burwell [8], a 2016 Supreme Court case, that was actually a consolidation of a number of cases, to include, most famously, Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell. At this point the federal regulations required companies “to cover certain contraceptives as part of their health plans, unless” they submitted “a form either to their insurer or to the Federal Government, stating that they” objected “on religious grounds to providing contraceptive coverage.” The Zubik parties alleged “that submitting this notice substantially” burdened “the exercise of their religion, in violation of the Religious Freedom Restoration Act….”

In supplemental briefing, the government confirmed that it would be feasible to arrange contraceptive coverage for the employees without requiring the Zubik parties to provide the notice they objected to. At the same time, the Zubik parties “clarified that their religious exercise” was “not infringed where they” needed “’to do nothing more than contract for a plan that’” did “’not include coverage for some or all forms of contraception,’ even if their employees” received “cost-free contraceptive coverage from the same insurance company.” The case was remanded to the lower courts to work out the details.

Last month, the contraceptive mandate was in the news again. The case was Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania [9], only this time the RFRA wasn’t in issue. The question was whether new regulations, designed to accommodate the Zubik case, were properly enacted. The Court decided that they were, and that was the end of the matter. Some partisans are hoping that there will be new regulations soon, a little tougher on the Little Sisters of the Poor. But that is a fond hope, as long as the Hobby Lobby case remains good law. They can attempt to repeal the RFRA on which Hobby Lobby was decided, but that would be significantly overplaying their hand. It isn’t likely that the spectacle of the Little Sisters of the Poor being forced to close their old age facilities because they couldn’t pay their fines under the Affordable Care Act would engender widespread public approval.

Yet, at some point, a coherent rule for approaching Free Exercise cases will have to be developed. The rule of the Smith case seems to gut the Free Exercise constitutional guarantee of any meaning. A right that only exists as long as the legislature doesn’t enact a law to the contrary hardly qualifies as a right of constitutional dimension. Everything is legal until the legislature says otherwise.

Any attempted distinction between religious belief and religious practice, allowing for regulation of the latter but not the former, is artificial, and a little sardonic. It would be hard to find a religion that didn’t mandate some practices of its adherents, and considered those practices an inherent feature of its beliefs.

What of the Sherbert test? At one time, not so long ago, it was considered so fundamental that Congress felt the need to enact it by legislation once it appeared that the Supreme Court was no longer going to apply it. It really seemed to take everything into account, protecting against infringement of religious practice, but at the same time permitting laws that so infringed if the government could show a compelling state interest and that the law was the least restrictive means of furthering that interest. There was no danger that child sacrifice would be allowed.

Freedom of religion is in the Constitution, and it must mean that something is protected beyond the reach of the majority or the legislature. While it is true that the country is becoming increasingly secular, we should reflect on whether the Bill of Rights is becoming an inconvenience, and, if so, whether that portends good or bad for the country’s future.

Monday, July 20, 2020

The More Things Change...


Recently the Supreme Court held that the Founding Fathers did something senseless when they wrote the constitutional provision for the election of the President. And a little misleading. They gave the distinct impression that they wanted actual electors to vote for the President—deceptively accomplished by the use of the term “electors”—when what they really wanted was for the state legislatures to award points allocated to each state based on the number of Representatives and Senators it has in Congress.

We’ll probably never understand why the Founders decided to express themselves in the way they did. But it turns out that all this time states have been engaging in the meaningless act of sending actual people as electors to “meet in their respective States,” [1] to “vote by ballot for President and Vice-President.” [2] We were probably thrown off by the provision that the electors are, after the votes are cast, to make a list of all the persons voted for, which they are to “sign and certify, and transmit sealed to the seat of the government of the United States….” That makes it look like human beings are required to exercise the office of an elector. But apparently not.

Alexander Hamilton was apparently fooled too. In Federalist Paper No. 68 he wrote of the electors that it was “desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” [3]

But why would it be necessary to have people of such qualifications as electors, if all they were to do was perform a ministerial act? Why couldn’t the governor handle it? Why would you need “a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”? [4] Wasn’t Alexander Hamilton paying attention during the Constitutional Convention?

The reason I ask these questions is that in the recent case of Chiafalo v. Washington [5] the Supreme Court upheld a state law that requires electors to “’execute [a] pledge’ agreeing to ‘mark [her] ballots’ for the presidential  (and  vice  presidential)  candidate of the party nominating her….And the elector must comply with that pledge, or else face a sanction.  At the time relevant here, the punishment was a civil fine of up to $1,000.”

But being that kind of elector doesn’t require people “most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.” On the contrary, a precocious 10-year-old could perform this function.

It’s true that electors are appointed from each state “in such Manner as the Legislature thereof may direct….” But that goes to the manner of their appointment, not the casting of their vote.

So why did the Court rule in this manner? “’Long settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions,’” the Court said. So if there had been a long settled and established practice of entering homes without warrants, that would be constitutionally acceptable? Or of denying defendants the right to counsel in criminal trials?

No, someone will object, those practices would be contrary to the plain text of the Constitution. Well, this is contrary to the plain text of the Constitution. The Constitution calls for electors, not administrative functionaries.

What we are left with is a system where political parties (nowhere mentioned in the Constitution) choose the electors, and, in all but two states, the presidential candidate who wins the plurality of votes in the state (not even a majority) by one vote, gets all of the state’s electors. That’s indefensible to any objective observer, and is manifestly not what the Founders intended. It’s a system designed to accommodate political parties, not republicanism, and, if this is the way we’re going to do it, we’re better off with a popular vote.

Thursday, June 18, 2020

I Will Have Mercy and Not Sacrifice


42 U.S.C. §2000e-2(a), which will hereinafter be referred to as “Title VII,” says that it is “an unlawful employment practice for an employer—

“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” [1]

This statute was enacted in 1964, back when very few were considering same-sex marriage as a possibility, or transgenderism as anything requiring legislation. But in a recent case that has achieved instant notoriety, Bostock v. Clayton County, the United States Supreme Court has ruled on whether the above statutory language covers employer actions against homosexuals or transgender persons based on their status as such.

Now it may be doubtful that anyone in Congress was thinking of homosexual or transgender persons when the statute was passed. But such an inquiry would have some difficulty. There were 535 members of Congress, then as now, and it would be impossible to know what was on the minds of all of them. “Legislative intent,” therefore, is always something of a term of art.

That’s why the preferred method of statutory interpretation is to go with the plain meaning of the statutory language whenever possible. Under that method, the “limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” [2]

“Sex” in our age of linguistic engineering can mean different things to different people. But in 1964 it is safe to assume that “sex” had the traditional biological meaning. As the Court said in this case, “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.”

In other words, courts are to look to the original meaning of the words when interpreting statutes. That is different than trying to discern original intent, which might be a metaphysical enterprise. So how did that work out in this case?

First, it is important to take note that “the statute prohibits employers from taking certain actions ‘because of’ sex.” Well, what does that mean? “In the language of law, this means that Title VII’s ‘because of’ test incorporates the ‘”simple”’ and ‘traditional’ standard of  but-for  causation….That  form  of  causation  is  established whenever a particular outcome would not have happened  ‘but  for’  the  purported  cause….In  other  words,  a  but-for  test  directs  us  to  change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”

When the wording of the law is taken into account, the Court’s ruling appears inescapable:

“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a  statutory  violation  has  occurred. Title VII’s message is ‘simple but momentous’: An individual employee’s sex is ‘not relevant to the selection, evaluation, or compensation of employees.’ [citation omitted]

“The statute’s message for our cases is equally simple and momentous:  An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If  the  employer  retains  an  otherwise  identical employee  who  was  identified  as  female  at  birth,  the  employer intentionally penalizes a person identified as male at birth  for  traits  or  actions  that  it  tolerates  in  an  employee  identified  as  female  at  birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

Justice Gorsuch, who wrote the majority opinion, wasn’t engaged in an act of judicial legislation. He wasn’t betraying the “social conservatives” who voted for the President who appointed him. He was doing what it was always clear that he would do, given his well-known judicial philosophy: applying the text of the law to the facts before him, without interjecting his own policy preferences. That was supposed to be what the “conservatives” wanted.

Of course, sometimes the positive law can be unjust. According to natural law theory, of which your humble servant is an adherent of the least dignity, an unjust law is no law at all. But is Title VII unjust, or did it have an unjust result in this case? Consider the facts.

“Each  of  the  three  cases  before” the Court “started  the  same  way: An employer fired a long-time employee shortly after the  employee  revealed  that  he  or  she  is  homosexual  or  transgender—and  allegedly  for  no  reason  other  than  the  employee’s homosexuality or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work.  After a decade with the county, Mr. Bostock began participating in a gay recreational softball league.  Not long after that, influential members of the community allegedly made disparaging comments about Mr.    Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct ‘unbecoming’ a county employee.

“Donald Zarda worked as a skydiving instructor at Altitude Express in New York.  After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.

“Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan.    When she got the job, Ms. Stephens presented as a male.  But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman.  In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to ‘live and work full-time as a woman’ after she returned from an upcoming vacation. The funeral home fired her before she left, telling her ‘this is not going to work out.’”

The question that must be asked is whether it would have been just to let these employer actions stand. If one is opposed to homosexuality or transgenderism, does it follow that he should support actions that deprive such persons of a livelihood? Your humble servant is a Catholic, and I need not delineate my Church’s stance on these issues. But does that require me to rise in support of the termination of good employees because they don’t adhere to the tenets of my religion? On the contrary, “Go then and learn what this meaneth, I will have mercy and not sacrifice.” (Matthew 9:13) [3]

The statute has been satisfied, justice has been satisfied, and so should we be satisfied. America will never be great by inflicting harm.