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What Does Don Verrilli Know About Getting Crucial Conservative Votes in Tough Cases?

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Yesterday, I acknowledged that there was a at least a strong element of self-criticism in Lawrence Lessig’s rather remarkable concession that he argued at the Supreme Court assuming a theory of judicial behavior that has been discredited for decades because if theory was true it would make him feel bad about his job.  It would be nice if he didn’t forget what he had learned in his future political endeavors, but hey, it’s something.  As sleepyirv pointed out to us in comments, he seems to have forgotten his bellyflop even in the narrow field of Supreme Court advocacy:

Yet it is a measure of the pervasive partisanship that is Washington today that it doesn’t even occur to Obama’s solicitor general to suggest a politically conservative argument to Chief Justice John Roberts’s Court that, if applied honestly, might well yield a politically liberal result. That may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court. Either way, it is astonishing. Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected. And so the government leads the Court to do what most Americans expect it will do anyway: Confirm an ideology, rather than honestly follow a principle that might well track something other than simple ideology.

You have to love the condescension shown towards the solicitor general — it can’t be that he was aware of Lessig’s arguments and decided against using them, it must have been that using these brilliant arguments didn’t “occur” to him.  This is particularly rich given the implication that Verrilli is unwilling to tailor his arguments to appeal to conservatives on the Court.  Admittedly, at the time of writing Lessig didn’t know about the ACA case argued by Verrilli that resulted in Roberts (joined by Kennedy) dismembering the corpse of Adler and Cannon’s argument and declining to even send the widow a corsage, but he had seen Roberts adopt an out-of-left-field argument brought up by Verrilli at oral arguments to mostly uphold the ACA in the first place. The causal role the oral argument played is unknowable, but I think just a little modesty might be in order here.

Still, Verrilli is capable of screwing up like anyone.  Is there reason to believe he left a winning argument on the table here?  Of course not:

  • As sleepyirv, even on its own terms, Lessig’s originalist argument is weak.  The dispute about the definition of “corruption” concerns 20th century judicial doctrine, not the text of the First Amendment.  How the framers and ratifiers of the First Amendment conceived of corruption might be worth noting, but it’s hard to see how it could be dispositive here.

 

  • If I may be permitted to throw some cold water on the whole “liberal originalist” mode of argument, it seems to me that campaign finance law an area in which originalism is particularly useless.  First of all, there was no single “original meaning” of the free speech clause itself in 1789.  Whether the free speech protected by the First Amendment was something like the (very narrow) English common law standard or something more than that and if so how much more was a matter of substantial political contestation at the time.  And even if there was a clearly identifiable consensus on free speech, it wouldn’t help very much as applied to concrete campaign finance cases in 2013, given how radically most of the relevant considerations (the cost of campaigns, the types of media involved, the size of the constituencies legislators represent) have changed in the intervening 225 years.  I think it would be better to say that Roberts’s narrow definition of corruption is wrong because it’s wrong, not because it arguably contradicts something James Madison wrote in the 18th century.

 

  • Of course, whether the argument appeals to me is beside the point; what matters is whether it would appeal to the justices.  But why would we think this?  We can forget Alito, a human manifestation of the most recent Republican Party platform.  Roberts and Kennedy have never shown any particular interest in originalism or any other kind of grand theory.  The two self-described originalists on the Court are hardly consistent about it.  And in First Amendment jurisprudence, neither Scalia nor Thomas has shown any particular interest in historical analysis, apart from some narrow exceptions (such as Thomas and speech in schools) where the history lines up very well with their a priori political views.  Lessig’s belief that originalism will be appealing in this context isn’t based on anything specific about the First Amendment jurisprudence of the justices in question, but just on the idea that if the justices are conservative they must therefore find orignalist arguments appealing regardless of the context, an assumption that is transparently wrong.

 

  • Which brings us to a broader problem — campaign finance is not virgin doctrinal ground, but an area in which the justices have well-established, frequently expressed views.  The idea that Kennedy or Roberts are going to go “Aha! Now that I’ve seen this empirical analysis of how corruption was used by the First Congress I have to admit that my libertarian views are wrong!” is absurd.  I was going to say that this applies the logic of the seminar room to Supreme Court advocacy, although frankly the “this not nearly as clever as I think it is argument will get my colleague to abandon her firmly established view” approach rarely works in the seminar room either.

 

  • Lessig tries to get around this problem by arguing that there’s no necessary contradiction between adopting his approach and the Roberts Court’s prior cases: “Recognizing “dependence corruption” as a kind of corruption that would empower Congress to act would not undermine the holding in Justice Anthony Kennedy’s opinion in Citizens United.”  But this is deeply disingenuous.  As I’ve said before, I think the judgment in Citizens United was right: I don’t think the statute authorized the FEC to suppress the showing of Hillary: the Movie, but if it did then it violated the First Amendment as applied.  But what makes the decision such an intense source of controversy is not the narrow judgment of the case, but Kennedy’s opinion, which went far beyond what was necessary to decide the case at hand.  It’s true that a “dependence corruption” justification would not threaten the outcome of Citizens United, but it would certainly undermine the broader foundations of Kennedy’s opinion, and Kennedy would certainly understand this.

The thing is, one some level it’s clear Lessig understands much of this: “[t]hat may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court.”  Again, he seems to think that it’s better to be wrong if being right undermines his choice to devote so much of his career to constitutional grand theory.  I assume the millions of people who benefit from the ACA prefer Verrilli’s approach of trying to appeal to the actually existing Supreme Court rather than the imaginary one that Larry Lessig would find cool.  And it’s a little late in the day to pretend that the most basic insights of legal realism are “astonishing.”

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  • Hogan

    A passage from a law review footnote that I ran across this morning and set aside for just such an occasion:

    By signaling that strict scrutiny would now operate differently than it had in Grutter, Fisher sent the same message that Gonzales v. Carhart, 550 U.S. 124 (2007), did in the abortion context: the law may not have changed, but there’s a new sheriff in town. What distinguishes Fisher from Grutter is the same thing that distinguishes Gonzales from the prior (and irreconcilable) partial birth abortion case, Stenberg v. Carhart, 530 U.S. 914 (2000). It is that Justice Samuel Alito has replaced Justice Sandra Day O’Connor.

  • humanoid.panda

    People who use the phrase “pervasive partisanship” deserve an automatic punch in the face. In current cirmustances, anything less than a total devotion to partisanship from the Democrats is either misguided or evil..

  • Warren Terra

    Why are you humoring Lessig’s trolling? Because, really, that’s all he’s doing at this point, even if he doesn’t admit it to himself.

    I agree with the comment the other day (I forget whose) that Lessig has essentially become deranged from excessive exposure to the unquestioning adulation of the Boing Boing readership and their ilk.

    • brad

      Yep. It’s sad how that site has come to resemble FDL with constant Etsy links.

  • Joe_JP

    Moving past Lessig in particular.

    A good strategy in various areas in this day and age is to use historical arguments enough to satisfy the swing voters in the courts on a particular issue. Originalism is a game of Calvinball in various ways, but history can be useful at times.

    This is where, at least a matter of “loyal opposition” activity, appeals to corruption as a historical concern has some merit. Zephyr Teachout et. al. point out the nuances of “corruption” and how this is a compelling state interest. FWIW, history can be used here to help make your case.

    This wouldn’t have led to a different result in Citizens United when Kagan was up there trying to find a narrow ground to get a fifth vote but it’s something useful all the same.

    • Scott Lemieux

      As is often the case, I’m not sure where you think we disagree.

      • Joe_JP

        Guess it helps that I didn’t say “I disagree” then.

  • Becker

    What is legal realism? Seriously, IANAL, and legal terms are frequently deployed on this blog the way financial terms are in the WSJ, with the understanding that the reader is already in the know. But for those of us who aren’t, what is it, and what about it is “astonishing” to people like Lessig?

    • Denverite

      Judges are mostly motivated by their own personal idiosyncrasies and policy preferences, and not by the quality of the arguments and analyses put before them.

    • Vance Maverick

      The Wikipedia entry describes it as an acknowledgment of politics (broad sense) in the legal arena, which seems consistent.

    • Srsly Dad Y

      Legal Realism (usually capitalized to distinguish it from the philosophical kind) is a school of thought named roughly in the 1930s which says roughly (you can quibble over each of these key terms) that the words of legal materials (the Constitution, statutes, prior decisions) don’t constrain how adjudicators decide particular cases, but are tools to justify the policy outcomes that the judges wanted to begin with. In law schools it has a family resemblance to Critical Legal Studies, which was hot in the 1980s.

    • Becker

      Thanks, everyone.

  • grytafey

    From Scalia’s dissent in Nixon v. Shrink Missouri Government PAC:

    The Founders sought to protect the rights of individuals to engage in political speech because a self-governing people depends upon the free exchange of political information. And that free exchange should receive the most protection when it matters the most—during campaigns for elective office. “The value and efficacy of [the right to elect the members of government] depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.” Madison, Report on the Resolutions (1799), in 6 Writings of James Madison 397 (G. Hunt ed. 1906).

    And in a footnote,

    The Framers, of course, thought such attachments inevitable in a free society and that faction would infest the political process. As to controlling faction, James Madison explained, “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.” The Federalist No. 10, p. 78 (C. Rossiter ed. 1961). Contribution caps are an example of the first method, which Madison contemptuously dismissed: “It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” Ibid. The Framers preferred a political system that harnessed such faction for good, preserving liberty while also ensuring good government. Rather than adopting the repressive “cure” for faction that the majority today endorses, the Framers armed individual citizens with a remedy. “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” Id., at 80.

    And he talks about the “roots” of corruption:

    The majority today, by contrast, separates “corruption” from its quid pro quo roots and gives it a new, far-reaching (and speech-suppressing) definition,

    I can’t disagree that it’s foolish to expect Scalia to be principled (I agree with the commenter the other day that said Lessig needs to listen to Posner more – especially how Posner completely pwned Scalia and discredited his so-called textualism.) But it’s just wrong to say there’s no interest in historical analysis in First Amendment cases about campaign finance reform.

    There is a very interesting argument about corruption and free speech and originalism, especially in light of Scalia’s footnote above. A primary reason that the electoral college was created was because private organizations would have too much influence over a direct election. The Society of Cincinnati would have effectively picked the president in a direct election, according to a number of speeches at the Convention. So even proponents of people directly electing their Representatives, like George Mason, were willing to eliminate representative democracy in executive elections in order to prevent undue private influence. That’s a pretty strong preference for the former over the latter in Madison’s choice, in order to protect us from too much influence from one faction. It’s hard to believe that free speech protections would then undermine that decision about the electoral college and guarantee limitless influence from a private party.

    • Scott Lemieux

      I acknowledged that there are some tendentious exceptions. it’s also worth noting that the first Madison banality cited is neither here nor there in terms of the constitutionality of campaign finance laws; it doesn’t even rise to the level of law office history. Similarly, the well-worn passages from Federalist #10 cited in the second quote are an important argument but they have no relevance to defining corruption per se; you could cite them to oppose virtually any government regulation if you were so inclined, although this is obviously misusing Madison;s point.

  • King Goat

    a human manifestation of the most recent Republican Party platform

    That was great

  • jamesepowell

    Why do so many academics seem to get their understanding of how our political system operates from the movie Dave? Or as if David Boies made a different argument, Gore would have been president.

  • sleepyirv

    Thanks, Scott. The article annoyed me so much at the time of its original publishing, that it has stuck in my craw for the past two years. Lessig shows an understanding of strategic thinking one usually identifies only with George McClellan.

    • Scott Lemieux

      You should have included that line in the first post so I could have used it! ;)

  • ajp

    Also, Lessig’s glasses are way too small for his face. They make his head look huge. I know it’s petty, but I saw him speak about his Rootstrikers organization and it was really distracting to me. I also found his PowerPoint style very gimmicky and distracting.

  • Joe_JP

    Walter Dellinger is the latest interview over at SCOTUSBlog and it is pretty good. One thing he noted was that he wished the justices were more diverse, too many professor and judge types, need more politicians etc. He also noted he wished the justices were more honest about what they were doing — making calculated choices and not just finding the law in the sky in some “neutral” fashion.

    When they are honest, they do that — people at times ridicule Breyer for his balancing tests etc. but deep down he is at least honest. Scalia at times is too though clouds it with bluster and b.s. So, e.g., he says he doesn’t want to give the courts too much power with open-ended tests that in application are left to the discretion of judges. And, using history to restrain is a way to check their power. Great. The Constitution doesn’t actually say this is the rule. It’s a judicial value choice.

    And, it’s hard to apply it consistently. But, at least be honest about what you are doing, and not just say the text or originalism compels it. That’s b.s.

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