tag:theconversation.com,2011:/fr/topics/john-roberts-13426/articlesJohn Roberts – The Conversation2024-02-08T20:48:00Ztag:theconversation.com,2011:article/2230582024-02-08T20:48:00Z2024-02-08T20:48:00Z‘Look for a reversal in a fairly short period of time’ − former federal judge expects Supreme Court will keep Trump on Colorado ballot<figure><img src="https://images.theconversation.com/files/574481/original/file-20240208-22-to0w8b.jpg?ixlib=rb-1.1.0&rect=17%2C8%2C5714%2C3806&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Even a day before the oral arguments, a line had formed outside the Supreme Court to sit in on the court's session.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/2e5e06595e7441d3a9bb5c465301f565/photo">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>To get the rare perspective of a former federal judge on the <a href="https://www.supremecourt.gov/oral_arguments/argument_transcript/2023">oral arguments at the Supreme Court</a>, The Conversation U.S. spoke with John E. Jones III. He is the president of Dickinson College and a <a href="https://www.dickinson.edu/homepage/1494/dickinson_college_president">retired federal judge</a> appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002. The case is about former President Donald Trump’s claim that he should be allowed on the presidential ballot in Colorado – and other states – because the language of the 14th Amendment does not apply to him.</em></p>
<p><em>During his time on the bench, Jones issued landmark decisions in high-profile cases, including a 2005 ruling that <a href="https://web.archive.org/web/20051221144316/http:/www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf">teaching intelligent design in science classes is unconstitutional</a>. Jones also issued a 2014 ruling <a href="https://www.scribd.com/document/225260457/1-13-cv-01861-Pennsylvania-Decision">legalizing same-sex marriage in Pennsylvania</a>, which preceded the U.S. Supreme Court decision reaching the same conclusion for the nation as a whole one year later.</em></p>
<p><strong>What’s your overall view of how things went this morning?</strong></p>
<p>I think it’s clear they’re going to reverse the <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf">Colorado Supreme Court</a>. There’s no question in my mind. I would look for a reversal in a fairly short period of time. The surprise may be that some of the more liberal justices could join the majority. I would look for an overwhelming majority to reverse. I think you could potentially see some concurring opinions, although I think Chief Justice John Roberts will try to wrap it into one opinion.</p>
<p>There are a lot of parts to the arguments. You could have a justice who concurs in the result but for different reasons. But I think they will recognize that the more uniform they are on this, the better they’ll be. </p>
<p>There could be dissents, but in the end I just didn’t think that they were buying Colorado lawyer Jason Murray’s arguments that each state has the power to judge for itself whether Trump’s conduct before, on and after Jan. 6, 2021, constituted insurrection, and that if it did, they can independently evaluate whether Trump is <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">ineligible to hold office</a> because of the 14th Amendment. I think there is the possibility of a unanimous opinion. I’m not going to be that bold, but Murray had a tough day.</p>
<p>Murray clerked for Justice Neil Gorsuch when he was on the 10th Circuit Court of Appeals and also clerked for Justice Elena Kagan on the Supreme Court. Former clerks are part of judges’ extended family. But sometimes judges and justices will bend over backwards to really nail their clerks, just to show that they’re not getting any kind of special treatment. I thought they were pretty rough on Murray today. <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf#page=80">Gorsuch really pounded him</a> – and he and Gorsuch probably have a very abiding relationship.</p>
<p><strong>What can we learn about how the justices are thinking about the case?</strong></p>
<p>There’s an old adage that you shouldn’t necessarily predict a result based on questions at oral argument. But it depends. Sometimes, judges and justices are intentionally provocative with their questions – they don’t necessarily signal their mindset or where they’re going. Other times they’re more transparent. </p>
<p>I thought today <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf">the questions</a> were really indicative of the perspectives of the questioners.</p>
<p>There’s a real problem to the position of the voters in Colorado seeking to get Trump off the ballot: If the decision is affirmed, you have the potential to have 50 different states all conducting some type of proceeding for which there is no template whatsoever and coming up with disparate results. </p>
<p>That creates different records in different places, which comes down to a due process argument – about the due process afforded to Trump and what mechanism he may have when his ability to get on the ballot is challenged.</p>
<p>The justices are afraid of future cases, where somebody tries to bump somebody off the ballot – even for political reasons or for no reason at all. There’s no standard for adjudicating this. That’s a problem. The prospect of retaliatory actions was talked about, and in this partisan political climate you could see somebody try to knock Joe Biden off the ballot. Then you’d have a court struggling without a standard, trying to figure out what, if anything, Biden did that disqualifies him.</p>
<p>On the side of Colorado, the argument is intertwining Section 3 of the 14th Amendment and the <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-2">electors clause of the U.S. Constitution</a>, which says that states have the ability to set certain rules and regulations for the conduct of elections underneath Congress’ power to regulate national elections.</p>
<p>They’re saying that the states have the power to decide whether to disqualify someone under their powers in the electors clause. I think that’s a very tough argument to make because of the lack of uniformity. The justices appear concerned about the sheer chaos that would stem from 50 different states adjudicating this question. </p>
<p><strong>The Colorado solicitor general, Shannon Stevenson, said 50 states operating separately is a positive feature of the Constitution’s structure.</strong></p>
<p>During oral arguments they talked about the 1994 case <a href="https://www.oyez.org/cases/1994/93-1456">U.S. Term Limits v. Thornton</a>. It was a case that involved 20-plus states that had enacted term limits for members of Congress. Of course, it got challenged up to the Supreme Court, and in the Constitution there’s no amendment that imposes term limits. What that ruling said was that states can’t add conditions for holding public office that are not within the text of the Constitution. It’s a very technical argument but not a bad argument. </p>
<p><strong>What are your observations about the 14th Amendment as it applies to this case?</strong></p>
<p>This was a poorly written section. It was a reactionary section that was essentially enacted, as stated by the justices, as a compromise that made no one particularly happy. It’s vague.</p>
<p>It doesn’t enumerate the president in the list of people it covers – you can see that. So does it cover the president when it talks about people who are an “<a href="https://constitution.congress.gov/constitution/amendment-14/">officer of the United States</a>” or who holds an “office … under the United States”? Then we play this semantical game. I don’t find that particularly availing, though I think you could fit the president into the rubric.</p>
<p>I think it is a very easy argument to make that Trump was an insurrectionist. But there are no standards. Where’s the due process? </p>
<p>There’s an element of trying to torture a very poorly written section down into something that fits the situation in 2024. That creates enormous headaches for lawyers and judges and justices. It’s just not clear what the amendment means. And when there’s unclarity like that, that makes for a tough go for a justice.</p>
<p>The way Kagan, for example, may write an opinion is to really lean on the fact that it was an insurrection, but it’s a bad section of the Constitution here. She might say our eyes don’t deceive and we know what we saw on Jan. 6, 2021, but there has to be a process to this.</p><img src="https://counter.theconversation.com/content/223058/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A retired federal judge examines the oral arguments the Supreme Court heard on a case in which Colorado has blocked former President Donald Trump from the ballot.John E. Jones III, President, Dickinson CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1758112022-01-27T13:31:34Z2022-01-27T13:31:34ZThe moderate, pragmatic legacy of Stephen Breyer<figure><img src="https://images.theconversation.com/files/442841/original/file-20220126-26-16nbyan.jpg?ixlib=rb-1.1.0&rect=11%2C11%2C3739%2C2485&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A justice representing a kinder political age?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtBreyerRetire/322df6a5f075411fa0d7810abac23943/photo?Query=Stephen%20Breyer&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=473&currentItemNo=37">AP Photo/Steven Senne</a></span></figcaption></figure><p>Stephen Breyer will leave a legacy that reflects the Supreme Court he joined nearly three decades ago – less fractious and less partisan than the bench he is <a href="https://apnews.com/article/stephen-breyer-supreme-court-retirement-2f9c1f5da824e3b1ef25964205131fff">reportedly set to leave</a> at the end of the current term.</p>
<p>When Breyer was <a href="https://clinton.presidentiallibraries.us/items/show/36180">nominated by Democratic President Bill Clinton</a> in 1994, he was not a controversial choice. He was confirmed by an 87-9 vote in the Senate, garnering the support of <a href="https://news.bloomberglaw.com/us-law-week/breyers-strong-bipartisan-confirmation-a-relic-of-the-past">79% of Republicans</a>.</p>
<p>There were few surprises at his relatively uneventful <a href="https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/ConfirmationMessesOldAndNew.pdf">confirmation hearing</a>. By and large, senators knew what they were getting: a moderate liberal who took a pragmatic approach to judging.</p>
<p>For Breyer, this meant a healthy respect for precedent and endeavoring to understand the practical consequences of the court’s cases, including how they affect the general population.</p>
<h2>Breyer’s majority opinions</h2>
<p>Breyer joined a court that had just reaffirmed the right to abortion in 1992’s <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a>, and he consistently upheld the precedent set by that case and Roe v. Wade throughout his tenure. In 2000, he wrote the majority opinion in <a href="https://www.oyez.org/cases/1999/99-830">Stenberg v. Carhart</a>, invalidating a state law that criminalized “partial-birth” abortion. In more recent terms, his opinions in <a href="https://www.oyez.org/cases/2015/15-274">Whole Woman’s Health v. Hellerstedt</a> and <a href="https://www.oyez.org/cases/2019/18-1323">June Medical Services, LLC v. Russo</a>, in 2016 and 2020 respectively, struck down state hospital admission requirements for abortion clinic doctors.</p>
<p>As the court moved in a more conservative direction, particularly after the 2020 death of liberal Justice <a href="https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html">Ruth Bader Ginsburg</a>, Breyer forged an alliance with Chief Justice John Roberts at the Court’s <a href="https://www.theatlantic.com/ideas/archive/2022/01/stephen-breyer-retirement-supreme-court-biden/619331">pragmatic center</a>.</p>
<p>Together, they led the court to moderate rulings upholding the <a href="https://apnews.com/article/supreme-court-dismisses-obamacare-challenge-67cc2e9604a70b1b329c5f3b4177a688">Affordable Care Act</a> and the free-speech <a href="https://apnews.com/article/supreme-court-cursing-cheerleader-first-amendment-981374cd3adc0e73274d7d33c29a9e0e">rights of students</a>. </p>
<h2>Breyer’s dissents</h2>
<p>Breyer’s moderate, pragmatic approach to judging is also apparent in his dissents. For instance, in 2015’s <a href="https://www.oyez.org/cases/2014/14-7955">Glossip v. Gross</a>, Breyer argued that the death penalty was unconstitutional because it was not consistent with contemporary understandings of what constitutes “cruel and unusual punishment.”</p>
<p>To justify this, he pointed out that states were increasingly abandoning the death penalty, that support for the death penalty among the public was decreasing, and that the vast majority of members of the United Nations had ceased using the death penalty. </p>
<p>Being moderate didn’t mean that Breyer was without strong feelings. In the school integration case of <a href="https://www.oyez.org/cases/2006/05-908">Parents Involved in Community Schools v. Seattle School District No. 1</a>, which came before the court in 2007, Breyer read his dissent from the bench – a rare occurrence that <a href="https://www.minnesotalawreview.org/wp-content/uploads/2012/01/TimJohnson_MLR.pdf">signaled</a> his passion for the issue.</p>
<p>Breyer sharply criticized the majority’s decision to strike down voluntary integration policies aimed at achieving racial diversity in a student body. Lamenting what he viewed as a radical departure from precedent, Breyer wrote, “It is not often in the law that so few have so quickly changed so much.”</p>
<h2>Breyer’s Legacy</h2>
<p>Justice Breyer is a product of the era in which he was confirmed: a conservative America where only moderate Democrats were politically viable.</p>
<p>[<em>Over 140,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-140ksignup">Sign up today</a>.]</p>
<p>Clinton had considered several high-profile <a href="https://www.baltimoresun.com/news/bs-xpm-1994-04-07-1994097137-story.html">liberal politicians</a>, including Maine Senator George Mitchell and then-Interior Secretary Bruce Babbitt, for the Supreme Court seat left vacant after the retirement of Justice Harry Blackmun. But in the end, he opted for a moderate judge who was already on the bench.</p>
<p>Breyer’s pragmatic approach allowed him to reach consensus with his more conservative colleagues.</p>
<p>His expected departure reminds America that the era of consensus has largely passed.</p><img src="https://counter.theconversation.com/content/175811/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There was little controversy when President Bill Clinton nominated Stephen Breyer to the bench in 1994. His tenure on the Supreme Court reflects those less partisan times.Paul M. Collins Jr., Professor of Legal Studies and Political Science, UMass AmherstArtemus Ward, Professor of Political Science, Northern Illinois UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1731562021-12-07T02:31:44Z2021-12-07T02:31:44ZWill Roe v Wade be overturned, and what would this mean? The US abortion debate explained<figure><img src="https://images.theconversation.com/files/435968/original/file-20211206-141979-1crmap3.jpg?ixlib=rb-1.1.0&rect=261%2C34%2C5561%2C3841&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Andrew Harnik/AP</span></span></figcaption></figure><p>Last week, the US Supreme Court heard oral arguments in a case that is the most significant threat to abortion rights in the US in decades. </p>
<p>The case, <a href="https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/">Dobbs v Jackson Women’s Health Organization</a>, centres on a <a href="https://www.nytimes.com/2018/03/19/us/mississippi-abortion-ban.html">2018 Mississippi law</a> banning abortion after 15 weeks except in “medical emergencies or for severe fetal abnormality”. </p>
<p>It is part of a wave of state abortion bans passed since the 2016 US presidential election that take aim at <a href="https://en.wikipedia.org/wiki/Roe_v._Wade">Roe v Wade</a>, the landmark 1973 Supreme Court decision that guaranteed abortion as a constitutional right. </p>
<p>So, what is this Mississippi challenge based on and could it eventually lead to the overturning of Roe v Wade?</p>
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<h2>Two issues at stake in the Mississippi case</h2>
<p>The Supreme Court, which likely won’t make a decision in the case until mid-2022, is faced with two key issues.</p>
<p>One of the central elements of Roe is that the state and federal governments cannot ban abortion before viability, the point at which a fetus can theoretically survive outside the pregnant person’s body (defined as approximately 23-24 weeks gestation). </p>
<p>The Mississippi ban falls well short of the viability threshold. As such, the Supreme Court is now considering whether <a href="https://www.supremecourt.gov/qp/19-01392qp.pdf">all pre-viability bans on elective abortions are unconstitutional</a>. </p>
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<a href="https://theconversation.com/supreme-court-signals-shift-on-abortion-but-will-it-strike-down-roe-or-leave-it-to-states-to-decide-when-personhood-occurs-172934">Supreme Court signals shift on abortion – but will it strike down Roe or leave it to states to decide when 'personhood' occurs?</a>
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<p>The second issue is respect for legal precedent. Since the Supreme Court was established in 1789, it has <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">reversed its own constitutional precedents</a> only 145 times, or in 0.5% of cases. </p>
<p>Roe v Wade, decided 48 years ago, is sometimes described as a “<a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1086&context=faculty_publications">super precedent</a>” decision, because the Supreme Court has repeatedly reaffirmed it. </p>
<p>Constitutional scholar <a href="https://constitutioncenter.org/blog/hunting-for-super-precedents-in-u.s-supreme-court-confirmations">Michael Gerhardt</a> defines “super precedents” as </p>
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<p>constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time. </p>
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<p>Conservatives, including several on the Supreme Court, reject the inclusion of Roe v Wade in this definition. </p>
<h2>Why does the court’s makeup now matter?</h2>
<p>In oral arguments, Mississippi’s lawyers invited the Supreme Court to use this case to overturn Roe v Wade. Anti-abortion lawyers and activists are optimistic their arguments will fall on receptive ears. </p>
<p>In 2016, Donald Trump, like every Republican presidential candidate dating back to Ronald Reagan, campaigned on a promise to appoint “<a href="https://www.nbcnews.com/video/trump-i-will-be-appointing-pro-life-judges-789632067780">pro-life judges</a>” to the Supreme Court. </p>
<p>Despite serving only one term in office, Trump was able to deliver. He appointed <a href="https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html">Neil Gorsuch</a> in 2017, <a href="https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supreme-court.html">Brett Kavanaugh</a> in 2018, and <a href="https://theconversation.com/what-would-amy-coney-barrett-trumps-pick-for-the-supreme-court-mean-for-abortion-rights-in-the-us-146931">Amy Coney Barrett</a> in 2020 to fill Supreme Court vacancies. Conservatives on the bench now have a 6-3 majority. </p>
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<img alt="Donald Trump and Amy Coney Barrett" src="https://images.theconversation.com/files/436008/original/file-20211207-140895-1yvj449.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/436008/original/file-20211207-140895-1yvj449.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/436008/original/file-20211207-140895-1yvj449.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/436008/original/file-20211207-140895-1yvj449.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/436008/original/file-20211207-140895-1yvj449.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/436008/original/file-20211207-140895-1yvj449.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/436008/original/file-20211207-140895-1yvj449.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Donald Trump and Amy Coney Barrett after the Senate confirmed her nomination last October.</span>
<span class="attribution"><span class="source">Patrick Semansky/AP</span></span>
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<p>While conservative Chief Justice John Roberts is no supporter of abortion rights, he has been a swing vote on a range of issues and has an established interest in protecting the reputation of the Supreme Court. However, after Barrett was sworn in, conservatives no longer needed to appeal to him to form a majority. </p>
<p>And while <a href="https://www.washingtonpost.com/politics/2021/12/01/kavanaugh-who-told-senate-roe-v-wade-was-settled-precedent-signals-openness-overturning-abortion-decision/">Kavanaugh</a> claimed in his confirmation hearings to believe Roe v Wade was “settled as a precedent of the Supreme Court”, last week in oral arguments he read from a list of Supreme Court cases that overturned precedent. </p>
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Read more:
<a href="https://theconversation.com/who-is-us-supreme-court-nominee-brett-kavanaugh-and-where-does-he-stand-on-abortion-99670">Who is US Supreme Court nominee Brett Kavanaugh, and where does he stand on abortion?</a>
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<h2>How states have chipped away at abortion access</h2>
<p>Abortion rights have survived serious attacks before. </p>
<p>In <a href="https://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey">Planned Parenthood v Casey (1992)</a>, three appointees of Republican presidents sided with two liberal justices to uphold Roe v Wade, arguing “<a href="https://supreme.justia.com/cases/federal/us/505/833/#tab-opinion-1959105">liberty finds no refuge in a jurisprudence of doubt</a>.” </p>
<p>That judgement reiterated the viability threshold for legal abortions, but allowed states to pass restrictions as long as they did not place an “undue burden” on the right to an abortion.</p>
<p>Since the 1990s, anti-abortion lawmakers have pushed to find the limits of an “undue burden,” pursuing laws and test cases that erode abortion access.</p>
<p>Many states now <a href="https://www.guttmacher.org/state-policy/explore/overview-abortion-laws">mandate</a> 24- or 72-hour waiting periods, ultrasounds, parental consent requirements for teenagers and counselling that repeats anti-abortion claims. </p>
<p>Since 2010, conservative states have also passed hundreds of <a href="https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers">targeted regulation of abortion provision (TRAP) laws</a>, which <a href="https://reproductiverights.org/targeted-regulation-of-abortion-providers-trap/">place prohibitive and medically unnecessary restrictions</a> on doctors and clinics that provide abortion care. </p>
<p>This anti-abortion strategy of chipping away at Roe v Wade has been extraordinarily successful. </p>
<p>Between 2011–16, over 160 abortion providers closed or stopped offering terminations, the <a href="https://www.bloomberg.com/news/articles/2016-02-24/abortion-clinics-are-closing-at-a-record-pace">largest rate of closures</a> since 1973. Multiple states, including Mississippi, have <a href="https://edition.cnn.com/2019/05/29/health/six-states-with-1-abortion-clinic-map-trnd/index.html">one remaining abortion clinic</a> in operation. </p>
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<h2>New strategy: more aggressive challenges to Roe v Wade</h2>
<p>After Trump’s victory, opponents of abortion shifted to a more aggressive strategy of directly challenging Roe v Wade. </p>
<p>Most of these recent laws, such as Alabama’s 2019 <a href="https://time.com/5591166/state-abortion-laws-explained/">near-total abortion ban</a>, have been blocked by the lower courts. </p>
<p>A new Texas law <a href="https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-abortions-law/">banning abortion after six weeks</a> is currently in effect while the Supreme Court considers whether its <a href="https://www.texastribune.org/2021/11/01/texas-abortion-law-supreme-court/">unique enforcement mechanism</a>, which allows private citizens to sue anyone they think has broken the law, can be challenged in the courts.</p>
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Read more:
<a href="https://theconversation.com/jim-crow-tactics-reborn-in-texas-abortion-law-deputizing-citizens-to-enforce-legally-suspect-provisions-167621">Jim Crow tactics reborn in Texas abortion law, deputizing citizens to enforce legally suspect provisions</a>
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<p>And the partisan makeup of the current Supreme Court makes it almost certain that Mississippi’s law will stand. </p>
<p>What is not clear is whether the justices will restrict themselves to the question of fetal viability or whether they will completely overturn Roe v Wade, allowing states to ban abortion at will. </p>
<p>If the Supreme Court allows the states to ban abortion before viability, this will have a significant impact on the small number of pregnant people who seek abortions in the second trimester. </p>
<p>Generally, these people have either received a <a href="https://www.denverpost.com/2019/10/13/late-abortion-women-2020/">devastating</a> <a href="https://www.nytimes.com/2019/10/19/opinion/sunday/late-term-abortion.html">medical</a> <a href="https://www.usatoday.com/story/opinion/2016/10/26/abortion-late-term-donald-trump-column/92691850/">diagnosis</a> or they have <a href="https://onlinelibrary.wiley.com/doi/pdf/10.1363/4521013">complex personal circumstances</a>, including domestic violence, mental illness, and/or drug addiction. These patients, as well as the doctors that provide this care, are highly stigmatised. </p>
<h2>The long-term effects of overturning Roe v Wade</h2>
<p>If Roe v Wade is overturned and abortion rights are returned to the states, access to abortion will effectively be a <a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">geographical lottery</a>. </p>
<p>Twenty-two states have laws that could be used to ban or severely restrict abortion, while 15 states and the District of Columbia have laws that protect the right to abortion. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1467944477033738246"}"></div></p>
<p>Abortion is a routine, common type of reproductive health care. Approximately <a href="https://www.guttmacher.org/news-release/2017/abortion-common-experience-us-women-despite-dramatic-declines-rates">one in four American women</a> will have an abortion before they are 45. </p>
<p>Despite the political controversy and polarising rhetoric, <a href="https://www.forbes.com/sites/alisondurkee/2021/11/30/how-americans-really-feel-about-abortion-the-sometimes-surprising-poll-results-as-supreme-court-weighs-overturning-roe-v-wade/?sh=70180d6736c9">polling this year</a> indicated that 80% of Americans support abortion in all or most cases, and at least 60% support Roe v Wade. </p>
<p>However, while abortion is common, three-quarters of US abortion patients are <a href="https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014">low income</a> and more than half are <a href="https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014">people of colour</a>. They already face significant financial and logistical barriers in accessing this essential health care.</p>
<p>If Roe v Wade is overturned, abortion will still be safely and legally accessible for those who can afford it. The devastating consequences of such a decision will fall primarily on the shoulders of those least able to bear it.</p><img src="https://counter.theconversation.com/content/173156/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Prudence Flowers has received funding from the South Australian Department of Human Services. She is a member of the South Australian Abortion Action Coalition.</span></em></p>If Roe v. Wade is overturned and abortion rights are returned to the states, access to abortion will be a geographical lottery – and the poor and marginalised will suffer.Prudence Flowers, Senior Lecturer in US History, College of Humanities, Arts, and Social Sciences, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1629822021-06-21T12:20:19Z2021-06-21T12:20:19ZWhat’s next for health care reform after the Supreme Court rejects ACA’s most recent challenge<figure><img src="https://images.theconversation.com/files/407334/original/file-20210620-26-fwakz2.jpg?ixlib=rb-1.1.0&rect=0%2C37%2C5056%2C3322&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court has pushed back three challenges to the Affordable Care Act.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtHealthCare/af7a18ea1fc84b39af301fa84aec0672/photo?Query=Obamacare%20Supreme%20Court&mediaType=photo,graphic&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=273&currentItemNo=9">AP Photo/Alex Brandon</a></span></figcaption></figure><p>The U.S. Supreme Court upheld the Affordable Care Act for the third time on June 17, 2021, this time in a case called <a href="https://www.oyez.org/cases/2020/19-840">California v. Texas</a>. With seven justices holding that the states and individual plaintiffs <a href="https://www.nytimes.com/2021/06/18/us/politics/supreme-court-conservatives-liberals.html">lacked standing to sue</a> because they failed to show that they had suffered a <a href="https://www.nytimes.com/2021/06/17/us/obamacare-supreme-court.html">direct injury</a>, the Court delivered its strongest defense of the law to date. The key parts of the previous decisions had been <a href="https://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html">5-4</a> and <a href="https://www.nytimes.com/2015/06/26/us/obamacare-supreme-court.html">6-3</a>, respectively.</p>
<p>This result was not unpredicted. Indeed, <a href="https://theconversation.com/while-the-supreme-court-deliberates-on-the-affordable-care-act-congress-and-the-white-house-may-act-149891">as I wrote in November</a>, legal experts called the arguments brought by the states and individual plaintiffs challenging the ACA “<a href="https://reason.com/volokh/2020/11/10/thoughts-on-todays-oral-argument-in-california-v-texas-the-obamacare-severability-case/">weak</a>” and “<a href="https://www.theatlantic.com/ideas/archive/2019/07/texas-v-us-rise-know-nothing-judge/593959/">ridiculous</a>.” </p>
<p>And, <a href="https://theconversation.com/while-the-supreme-court-deliberates-on-the-affordable-care-act-congress-and-the-white-house-may-act-149891">as I noted at the time</a>, the oral arguments suggested that the Court’s key swing votes were <a href="https://news.bloomberglaw.com/us-law-week/supreme-court-shaped-by-trump-poised-to-hear-challenge-to-aca">largely skeptical</a> of the challengers’ legal arguments. What was more potentially surprising about the 7-2 final result were the votes of Justices Clarence Thomas and Amy Coney Barrett, as they joined Chief Justice John Roberts, and Justices Stephen Breyer, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor in voting to deny the challenge. </p>
<p>Specifically, the litigation centered around whether the individual mandate penalty – the fine an individual must pay for not carrying health insurance – was made unconstitutional when Congress <a href="https://www.nytimes.com/2017/12/18/us/politics/tax-cut-obamacare-individual-mandate-repeal.html">“zeroed out” the monetary penalty in 2017</a>. Two individual plaintiffs and a group of states led by Texas argued that they were injured as a result of the now-unenforceable mandate, and that the mandate – now, arguably, no longer a tax because it was not revenue-generating – could no longer be upheld as constitutional. But the Court found that the challengers had failed to state a cognizable injury and thus, <a href="https://www.usatoday.com/story/news/politics/2021/06/17/supreme-court-rejects-obamacare-challenge-brought-texas/4153925001/">lacked standing</a>.</p>
<p>The decision’s biggest fireworks came from Justice Samuel Alito, whose <a href="https://supreme.justia.com/cases/federal/us/593/19-840/#tab-opinion-4440774">strongly worded dissent</a> was joined by Justice Neil Gorsuch. Alito found that the challengers did experience the type of injury required, agreeing with the argument that an unenforceable individual mandate penalty – <a href="https://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html">upheld as a constitutional tax in National Federation of Independent Businesses v. Sebelius</a> – was no longer justifiable, finding it both unconstitutional and not severable, or able to be excised, from the rest of the law. Alito’s opinion, which would have struck down the entire ACA, was cutting in its criticism, perhaps reminding Court watchers of the <a href="https://www.nytimes.com/2016/02/16/arts/recalling-scalia-a-literary-stylist-who-scorned-jiggery-pokery.html">sharp dissents of the late Justice Antonin Scalia</a>.</p>
<p>Indeed, even though this legal challenge was weaker than previous ones, the ACA still did hang in the balance – with <a href="https://www.nytimes.com/article/supreme-court-obamacare-case.html">21 million people at direct risk of losing their health insurance</a>, and millions <a href="https://www.nytimes.com/article/supreme-court-obamacare-case.html">more at risk of losing protection</a> against preexisting condition discrimination.</p>
<p>As a <a href="https://law.utk.edu/directory/zack-buck/">health law professor</a> who <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1713816">studies and writes about the ACA and health reform</a>, I think it is worthwhile to look ahead to what comes next now that the newest challenge has been laid to rest.</p>
<figure class="align-center ">
<img alt="President Barack Obama is surrounded by onlookers as he signs a document. Joe Biden, Nancy Pelosi and a young Black boy in a vest and tie are part of the crowd." src="https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=327&fit=crop&dpr=1 600w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=327&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=327&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=411&fit=crop&dpr=1 754w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=411&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=411&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Barack Obama signs the Affordable Care Act in 2010.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/HealthOverhaulLawsuit/e33c3840d72f4ade8b1cb0e077471cf7/photo?Query=Obama%20signs%20Affordable%20Care%20Act&mediaType=photo,graphic&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=251&currentItemNo=3">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>An inflection point</h2>
<p>The summer of 2021 seems to present a very different political environment for the ACA. Now <a href="https://www.nytimes.com/2010/03/24/health/policy/24health.html">more than 11 years after President Obama signed the ACA</a>, the law has experienced its most <a href="https://www.kff.org/interactive/kff-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable&aRange=all">extensive period of sustained public support</a>, according to the Kaiser Family Foundation, a nonprofit organization focusing on national health policy issues.</p>
<p>The first challenge to the ACA to reach the Supreme Court, <a href="https://www.oyez.org/cases/2011/11-393">National Federation of Independent Businesses v. Sebelius</a>, was filed in 2010, with a decision in 2012. The complaint that would become <a href="https://www.oyez.org/cases/2014/14-114">King v. Burwell</a> was filed in 2013, with a favorable decision for the ACA in 2015. This most recent challenge was filed in the spring of 2018. </p>
<p>But the germination of these legal challenges took place during a very different political era for the ACA. Indeed, until 2017, the ACA <a href="https://www.kff.org/interactive/kff-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable&aRange=all">struggled to gain public support</a>. But since early 2017, more Americans have supported the law than have opposed it, and the trendlines are unmistakable. As of May 2021, <a href="https://www.kff.org/interactive/kff-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable&aRange=all">53% of Americans supported the ACA and 35% opposed it</a>.</p>
<p>In short, it remains an open question as to whether there is the political will to continue to seek a judicial remedy to destroy a law that seems to be increasingly popular. One would think that the law may finally be here to stay. But given the frequency with which opponents of the ACA have resorted to the courts, one can never be sure.</p>
<h2>To the states</h2>
<p>Instead, it seems like the focus of health reform over the remainder of the first half of President Joe Biden’s term will be on whether the administration can finally persuade the <a href="https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/">12 remaining “holdout” states</a> to expand their Medicaid programs, granting health care access to millions more Americans. Two other states — Missouri and Oklahoma — <a href="https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/">have voted to expand Medicaid but have not yet implemented</a> Medicaid expansion.</p>
<p>The biggest prize is Texas, which, according to a study, could cover up to <a href="https://www.commonwealthfund.org/publications/issue-briefs/2019/aug/medicaid-expansion-texas-potential-economic-employment-implications">1.2 million</a> uninsured individuals through Medicaid expansion. But the Texas House <a href="https://www.texastribune.org/2021/04/22/texas-house-medicaid-expansion-uninsured/">rejected an expansion effort</a> earlier this year. Additionally, with expansion, Florida could cover <a href="https://www.commonwealthfund.org/blog/2019/medicaid-expansion-florida-budget-buster-or-deal-century">more than 800,000 people</a>, and Georgia, <a href="https://www.augustachronicle.com/story/news/2021/05/20/study-medicaid-expansion-georgia-could-bring-thousands-jobs/5163389001/">more than 600,000</a>. </p>
<p>Through <a href="https://www.usatoday.com/story/news/politics/2021/03/02/covid-stimulus-package-includes-major-expansion-obamacare/4560965001/">the COVID-19 relief bill</a>, the Biden administration sweetened the deal for states to expand their Medicaid programs <a href="https://www.nbcnews.com/politics/politics-news/changed-hearts-minds-biden-s-funding-offer-shifts-medicaid-expansion-n1262229">by increasing federal funding</a>. While it seems that those efforts may have initially <a href="https://www.nbcnews.com/politics/politics-news/changed-hearts-minds-biden-s-funding-offer-shifts-medicaid-expansion-n1262229">resulted in some shifts</a> in these states, and in others the efforts have drawn a “<a href="https://news.yahoo.com/thanks-no-thanks-states-wary-100019175.html">mixed response</a>,” no state has yet moved to expand the program as a result.</p>
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<h2>An equipoise?</h2>
<p>At the same time, it would appear that some of the more progressive health reform goals — such as “Medicare for All,” or even a government-run public option — are <a href="https://www.nbcnews.com/politics/joe-biden/health-insurance-public-option-might-be-fizzling-left-ok-n1269571">not part of the Biden agenda</a>. According to reporting in early June 2021, the federal public option “<a href="https://www.nbcnews.com/politics/joe-biden/health-insurance-public-option-might-be-fizzling-left-ok-n1269571">has fallen off the national radar and will be difficult to revive without a major push by the White House</a>.” Nonetheless, Nevada, Colorado and Washington state have now established <a href="https://www.vox.com/policy-and-politics/22535267/public-option-health-insurance-nevada-colorado-washington">their own public options</a>.</p>
<p>Instead, the Biden administration is working to <a href="https://blog.petrieflom.law.harvard.edu/2021/05/13/biden-private-health-insurance/">bolster and broaden the ACA’s subsidies for private insurance</a>, which is having positive effects on the number of Americans <a href="https://www.modernhealthcare.com/insurance/more-half-million-americans-gain-coverage-under-biden">covered under the ACA</a>.</p>
<p>All of this seems to suggest a health reform equipoise at the moment. Perhaps the ACA’s most turbulent decade is behind us, and, instead, policymakers will be working to bolster its coverage and plug its holes. Nonetheless, if we’ve learned one thing over the last 11 years of following American health care reform efforts, it is that what happens next is often hard to predict.</p><img src="https://counter.theconversation.com/content/162982/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zack Buck does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Support for the Affordable Care Act is at an all-time high.Zack Buck, Associate Professor of Law, University of TennesseeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1424322020-07-09T18:00:39Z2020-07-09T18:00:39ZTrump gets no special protections because he’s president and must release financial records, Supreme Court rules<figure><img src="https://images.theconversation.com/files/346698/original/file-20200709-34-18khp7l.jpg?ixlib=rb-1.1.0&rect=191%2C110%2C6277%2C3903&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Investigators are trying to follow the president's money, and the Supreme Court just gave them the green light.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-holds-up-a-justice-delayed-is-justice-denied-sign-in-news-photo/1255215622?adppopup=true">Alex Wong/Getty Images</a></span></figcaption></figure><p>In a <a href="https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf">7-2 decision, the Supreme Court has ruled</a> that President Donald Trump has no immunity, by virtue of being president, from a state <a href="https://www.nytimes.com/2019/09/16/nyregion/trump-tax-returns-cy-vance.html">grand jury subpoena for his business and tax records</a> in a criminal investigation by the Manhattan district attorney. </p>
<p>“[N]o citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” wrote Chief Justice John Roberts in the majority opinion.</p>
<p>The court rejected the president’s claims that permitting subpoenas from state prosecutors would open the floodgates to prosecutors nationwide, distracting him from his presidential duties. It reiterated what the court had said in a previous case in which President Bill Clinton had tried to avoid giving a deposition, <a href="https://www.oyez.org/cases/1996/95-1853">Clinton v. Jones</a>: The Constitution does not require protecting the president from state grand jury subpoenas. </p>
<p>While a victory for Manhattan District Attorney Cyrus Vance Jr., the ruling does send the case back to the lower courts to determine if the president has any other basis available to any citizen to object. The courts typically respect the scope of grand jury subpoenas, and reject attempts to limit them. </p>
<p>And because grand jury proceedings are secret, the public is unlikely to see any of the subpoenaed documents unless Vance charges Trump with a crime.</p>
<h2>Striking a balance</h2>
<p><a href="https://www.supremecourt.gov/opinions/19pdf/19-715_febh.pdf">Two companion cases</a>, also decided 7-2, involved congressional subpoenas for some of the same Trump financial records. These were a major test of Congress’ ability to exercise oversight of the presidency.</p>
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<p>The court held that concerns about separation of powers in disputes between the president and Congress require the courts to balance the competing interests of both. Since Congress’ ability to subpoena records is tied to its authority to legislate, its demands for materials from a president must be “no broader,” the court said, than is necessary to aid in enacting legislation – especially where that legislation may affect the presidency.</p>
<p>“The more detailed and substantial the evidence of Congress’ legislative purpose the better,” wrote Roberts.</p>
<p>The court sent the two consolidated cases back to the lower courts to apply this new standard. Upholding Congress’ oversight power will require legislative committees to make a stronger and more specific link between the records they want and legislative proposals than they had made before.</p>
<h2>Congressional oversight limits</h2>
<p>Not since the “Red Scare” subpoena cases from the 1950s-1960s, where Congress conducted hearings that many called political witch hunts against alleged communists, and the Watergate era in the 1970s, when President Nixon claimed through his attorney that he was “as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment,” has the Supreme Court taken up such far-reaching questions about the ability of Congress to oversee and check the president’s power.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump fought congressional demands for financial records.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-as-he-departs-the-white-house-news-photo/1211871661?adppopup=true">Getty/Jim Watson/AFP</a></span>
</figcaption>
</figure>
<p>Congress is investigating whether <a href="https://www.politico.com/news/2020/01/20/trump-businesses-empire-tied-presidency-100496">Trump used his power as president to profit his business</a>, whether he <a href="https://www.law.cornell.edu/uscode/text/5a/compiledact-95-521">accurately reported his finances</a> as all government employees are required to do and whether he accepted gifts from foreign governments without permission from Congress, which is <a href="https://www.britannica.com/story/what-is-the-emoluments-clause">banned by the Constitution</a>. This ban reflected the framers’ concern that no official be subject to foreign intrigue or influence of any kind – a common practice at the time among foreign sovereigns. </p>
<p><a href="https://www.theusconstitution.org/litigation/trump-v-mazars-usa-llp/">Trump v. Mazars</a> related to those investigations. Trump tried to stop his accountants and the bank he deals with from providing information subpoenaed by two House committees – oversight and intelligence.</p>
<p><a href="https://law.justia.com/cases/federal/appellate-courts/cadc/19-5142/19-5142-2019-10-11.html">Trump objected to these subpoenas</a> on the grounds that they lack a legislative purpose and that their true aim was to obtain personal information for political advantage. </p>
<p>The Court of Appeals rejected this argument. It found that the records the congressional committees wanted were relevant to Congress’ legislative duties, and thus the subpoenas were legitimate.</p>
<p>All subpoenas from, and investigations by, Congress <a href="https://theconversation.com/oversight-committee-session-with-michael-cohen-looks-like-an-illegitimate-show-hearing-112253">must have a legislative purpose</a>. By law, Congress has the authority to pursue any “<a href="https://theconversation.com/oversight-committee-session-with-michael-cohen-looks-like-an-illegitimate-show-hearing-112253">subject on which legislation can be had</a>” as well as inquiries into fraud, waste and abuse in government programs. The broad standard for upholding that investigative power is affirmed in the Supreme Court’s ruling in <a href="https://www.oyez.org/cases/1900-1940/273us135">McGrain v. Daugherty</a> in 1927, which established that “the power of inquiry – with process to enforce it – is an essential and appropriate” aspect of how Congress carries out its legislative function.</p>
<p>The case that was consolidated with Mazars was about House committee subpoenas for Trump companies’ bank records from Deutsche Bank and Capital One. As with the Mazars case, Trump tried to stop the banks from handing over the documents.</p>
<p>Those subpoenas were related to reviews by the House Financial Services Committee and the Intelligence Committee of the movement of illicit funds through the global financial system and money laundering. Deutsche Bank, <a href="https://www.nytimes.com/2020/02/04/magazine/deutsche-bank-trump.html">which has loaned large amounts of money to Trump businesses</a>, has already <a href="https://www.reuters.com/article/us-deutsche-mirrortrade-probe/deutsche-bank-fined-for-10-billion-sham-russian-trades-idUSKBN15F1GT">been fined US$10 billion</a> for a money-laundering scheme unrelated to Trump. </p>
<p><a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/20C16C3C5721030C85258490004DE33C/$file/19-5142-1810450.pdf">The Court of Appeals rejected Trump’s argument</a> and said Congress was legitimately entitled to pursue and get the records. </p>
<p>They wrote that the committees’ focus on illegal money laundering was not on any purported misconduct by Trump but instead on whether such activity occurred in the banking industry, the adequacy of banking regulation and the need for legislation to fix any problems – all legitimate oversight goals.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=427&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=427&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=427&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=536&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=536&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=536&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Bill Clinton fought against being deposed in the Paula Jones sexual discrimination suit; he lost and had to comply.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-10-december-image-taken-from-c-span-television-shows-news-photo/51634512?adppopup=true">Getty/AFP</a></span>
</figcaption>
</figure>
<h2>Nixon, Clinton precedents</h2>
<p>None of these cases involved the president <a href="https://www.law.cornell.edu/wex/executive_privilege">claiming executive privilege</a> – the doctrine that keeps confidential many of the communications between the president and his closest advisers. Nor did the cases involve any challenge to the performance of his official duties. </p>
<p>All concerned only his private business activities before he assumed office. The records from before he was president were relevant because he refused to divest from his businesses, raising the concern of whether his official actions once in office conflict with, or appear to conflict with, his existing business interests.</p>
<p>Two previous Supreme Court cases weighed significantly in the court’s decisions in these cases. </p>
<p>One is <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a>, which took place during the Watergate scandal, when <a href="https://www.nytimes.com/1974/04/17/archives/jaworski-seeks-court-subpoena-for-nixon-tapes-he-wants-64-of.html">Special Prosecutor Leon Jaworski subpoenaed the tape recordings</a> of conversations between the president and four of his advisers who had been indicted. President Richard Nixon tried to claim executive privilege, saying the recordings of conversations between him and his advisers were confidential and should not be given to the special prosecutor. </p>
<p>The court ruled unanimously that the need for the tapes in the aides’ upcoming trial outweighed the president’s claim of confidentiality. And although no case applying the Nixon case precedent to a congressional subpoena has reached the Supreme Court, the <a href="https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/07/24/daily-202-why-u-s-v-nixon-matters-now-more-than-ever/5b5678331b326b1e646954eb/">implication drawn from the case</a> was that if his privilege can be overcome by a subpoena for conversations with his closest aides, business records generated before a president came to office could legitimately be subpoenaed by Congress.</p>
<p>The other case relied on in the Trump financial documents decisions is <a href="https://www.oyez.org/cases/1996/95-1853">Clinton v. Jones</a> in 1997. The case stemmed from a sexual harassment suit against Clinton concerning his conduct before his presidency. Clinton had refused to give a deposition in the case, insisting that it would be a distraction from his duties as president and an invitation to litigants to harass any president while in office with lawsuits.</p>
<p>The <a href="https://www.oyez.org/cases/1996/95-1853">case description on the Supreme Court website</a> asks, “Is a serving President … entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?” </p>
<p>The court’s answer in 1997: No.</p>
<p>On July 9, 2020, the court gave the same response, this time to presidential claims of absolute immunity to grand jury requests for information in a criminal investigation. And it reaffirmed that, while Congress might have to provide better reasons for asking the president to produce records, it has a right to exercise strong oversight of the presidency.</p>
<p><em>Editor’s note: This is an updated version of <a href="https://theconversation.com/historic-power-struggle-between-trump-and-congress-reviewed-by-supreme-court-138154">an article originally published</a> on May 8, 2020.</em></p><img src="https://counter.theconversation.com/content/142432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In cases testing the limits of presidential power, the Supreme Court ruled the president has no special protections that exempt him from complying with subpoenas from Congress or state grand juries.Stanley M. Brand, Distinguished Fellow in Law and Government, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1361022020-04-14T12:22:52Z2020-04-14T12:22:52ZWhy the Supreme Court made Wisconsin vote during the coronavirus crisis<figure><img src="https://images.theconversation.com/files/327487/original/file-20200413-77375-1owghk3.jpg?ixlib=rb-1.1.0&rect=127%2C42%2C5520%2C3717&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Milwaukee voters wait in a social-distancing line, some wearing masks, before voting in the state's spring elections on April 7.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-Wisconsin-Election/ec01e1ad3c9c4435bdeef689d09d0c65/3/0">AP Photo/Morry Gash</a></span></figcaption></figure><p>When Wisconsin voters had to brave the coronavirus pandemic <a href="https://www.washingtonpost.com/politics/long-lines-form-in-milwaukee-as-wisconsin-proceeds-with-elections-under-court-order/2020/04/07/93727b34-78c7-11ea-b6ff-597f170df8f8_story.html">to vote in their state’s April 7 election</a>, it was the latest phase of a nearly 60-year legal and political fight over who can vote in the U.S.</p>
<p><a href="https://nymag.com/intelligencer/2020/04/after-a-disturbing-election-day-now-what-in-wisconsin.html">Wearing masks and gloves</a>, Wisconsin residents who <a href="https://www.politico.com/news/magazine/2020/04/09/wisconsin-supreme-court-partisan-battleground-176292">voted in person</a> were met by election officials in similar attire. That was new. </p>
<p>But it wasn’t new that voters found hundreds of polling places closed and therefore had to wait in line for hours.</p>
<p>A U.S. Supreme Court decision just the day before had ordered Wisconsin to <a href="https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf">hold its in-person election without delay</a>, not allowing extra time for voters to cast their ballots by mail. Critics called the decision one of “<a href="https://www.nytimes.com/2020/04/09/opinion/wisconsin-primary-supreme-court.html">raw partisanship</a>,” “<a href="https://www.theatlantic.com/ideas/archive/2020/04/supreme-courts-hypocrisy-going-get-americans-killed/609598/">an ominous harbinger</a> for what the Court might allow in November in the general election” – and even a “<a href="https://www.nytimes.com/2020/04/10/opinion/sunday/wisconsin-primary-2020-election.html">death threat</a>” aimed at voters.</p>
<p>As someone who <a href="https://openscholarship.wustl.edu/law_lawreview/vol1971/iss2/2/">has long studied</a> the complex intersections of law and politics, I saw the ruling as the latest episode in the fight over the franchise and one of a series of decisions under Chief Justice John Roberts that have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1328654">rejected efforts</a> to protect or extend voting rights.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Warren court from 1958 to 1962. Standing, from left: Justices Charles E. Whittaker, John M. Harlan, William J. Brennan, Jr., Potter Stewart. Seated, from left, Justices William O. Douglas and Hugo L. Black, Chief Justice Earl Warren, and Justices Felix Frankfurter and Tom C. Clark.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:US_Supreme_Court_1958-62.jpg">Supreme Court of the United States/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>The Warren court and the vote</h2>
<p>In 1886, the Supreme Court <a href="https://supreme.justia.com/cases/federal/us/118/356/#tab-opinion-1911262">recognized</a> that voting is “a fundamental political right, because [it is] preservative of all rights.” So long as people can vote, the justices reasoned, they could fix any problems democracy might encounter.</p>
<p>Starting in 1962, the court, under Chief Justice Earl Warren, responded to suits brought by civil rights groups by issuing a <a href="https://www.jstor.org/stable/3108678">series of rulings</a> based on that 1886 principle. The decisions effectively declared that <a href="https://scholarship.law.unc.edu/nclr/vol80/iss4/6/">federal courts would ensure that everyone’s vote counted equally</a> and that barriers to voting would be removed wherever possible.</p>
<p>In <a href="https://supreme.justia.com/cases/federal/us/369/186/#tab-opinion-1943624">Baker v. Carr</a>, decided in 1962, the Supreme Court held that judges could review the process of drawing boundaries for legislative districts, and that the 14th Amendment’s guarantee of equal protection of the law required those districts to be roughly equal in population.</p>
<p>Two years later, the Warren court <a href="https://www.oyez.org/cases/1963/23">extended this understanding</a> of the 14th Amendment and decided that state legislative districts must guarantee “one person, one vote.” For an 8-1 majority, Chief Justice Warren wrote that because the right to vote was the “bedrock of our political system … any alleged infringement of [it] … must be carefully and meticulously scrutinized.”</p>
<p>In 1966, the court held 6-3 that states <a href="https://supreme.justia.com/cases/federal/us/383/663/#tab-opinion-1945992">could not require voters in state elections to pay a tax</a> before voting. That ruling solidified the court’s role in protecting voters’ free access to cast their ballots. Justice William Douglas wrote for the majority that the right to vote was “too precious, too fundamental to be so burdened or conditioned.”</p>
<p>While the <a href="https://www.press.umich.edu/2204912/representation_rights_and_the_burger_years">Burger</a> and <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3360&context=flr">Rehnquist</a> courts pulled back in some areas of voting rights and were less aggressive in other voting rights cases than the Warren court, they did not aggressively dismantle its legacy – that is, until <a href="https://supreme.justia.com/cases/federal/us/531/98/#tab-opinion-1960860">Bush v. Gore</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supporters of George W. Bush and Al Gore protest outside the Supreme Court building in December 2000.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:56.ElectionProtest.USSC.WDC.11December2000_(21752049743).jpg">Elvert Barnes</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Bush v. Gore and voting rights</h2>
<p>The Supreme Court’s commitment to policing the electoral process in the name of equality and inclusion was shattered when, on Dec. 12, 2000, it <a href="https://supreme.justia.com/cases/federal/us/531/98/#tab-opinion-1960860">stopped a recount</a> in Florida’s closely contested presidential election, ensuring that George W. Bush would become president of the United States.</p>
<p>That 5-4 decision, nearly five years before Bush appointed Roberts to the court, launched an era of <a href="https://ssrn.com/abstract=2772570">bitter partisan division</a> in voting-rights cases that the conservative-majority Roberts court has continued.</p>
<p>In 2008, for instance, the court, dividing 6-3, upheld an Indiana law requiring <a href="https://supreme.justia.com/cases/federal/us/553/181/#tab-opinion-1962669">people to present government-issued identification</a> before being allowed to vote. Despite the <a href="https://www.wired.com/story/voter-id-law-algorithm/">disproportionate burden</a> that law placed on minorities and the poor, who are least likely to have such identification, the justices found it to be a legitimate way for the state to prevent voter fraud.</p>
<p>Five years later, <a href="https://supreme.justia.com/cases/federal/us/570/529/#tab-opinion-1970752">by a 5-4 vote</a>, the Roberts court ended the 1965 Voting Rights Act’s requirement that states with a history of discrimination against minority groups <a href="https://www.justice.gov/crt/about-section-5-voting-rights-act">must get federal approval</a> before changing any voting laws. Roberts himself wrote the majority ruling that the requirement was no longer necessary and it represented an “unconstitutional violation of the power of states to regulate elections.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=472&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=472&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=472&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=593&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=593&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=593&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Roberts court, from 2018. Seated, from left: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Supreme_Court_of_the_United_States_-_Roberts_Court_2018.jpg">Fred Schilling, Supreme Court of the United States/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>The Roberts court’s assault continues</h2>
<p>In 2017, there was a brief break in the Roberts court’s predictable ideological rulings in voting rights and election cases. In an unusual alignment, Justice Thomas joined the four liberal justices to strike down <a href="https://supreme.justia.com/cases/federal/us/581/15-1262/#tab-opinion-37363">a North Carolina law that allowed racist gerrymandering</a>.</p>
<p>But a year later, in yet another 5-4 ruling, the court <a href="https://supreme.justia.com/cases/federal/us/584/16-980/#tab-opinion-3913484">allowed states to purge residents</a> from the voting rolls for, among other things, failing to vote for two years. Ohio claimed it used that failure as a rough way of identifying voters who may have moved and tried to get them to verify their residence by mailing them a postcard. Yet <a href="https://www.nytimes.com/2019/10/14/us/politics/ohio-voter-purge.html">the effect of the law</a> was that many people who showed up to vote for a subsequent election would be prevented from actually voting.</p>
<p>And in 2019, the court again split 5-4, holding that <a href="https://supreme.justia.com/cases/federal/us/588/18-422/#tab-opinion-4114539">courts should stay out of cases</a> alleging that redistricting maps were drawn to favor one political party at another’s expense. The court concluded that while the practice of partisan gerrymandering may be distasteful, it is a political problem, not a legal one.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Milwaukee high school gym was converted into a polling place on April 7, with voting booths set apart from each other and election workers wearing masks and gloves.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-Wisconsin-Election/6c483b43729a44b0b7a59fb80b68d388/9/0">AP Photo/Morry Gash</a></span>
</figcaption>
</figure>
<h2>The future of voting rights</h2>
<p>That set the stage for the Wisconsin situation, in which the Democratic governor, the Republican-dominated state legislature, the state Supreme Court and a federal district court issued a <a href="https://www.nytimes.com/2020/04/07/us/politics/wisconsin-pandemic-primary-republicans.html">series of contradictory decisions and rulings</a> about whether the election could take place and voters could have extra time to submit absentee ballots.</p>
<p>The five U.S. Supreme Court justices <a href="https://newrepublic.com/article/156855/republican-party-took-supreme-court">appointed by Republican presidents</a> said the case only raised “a narrow, technical question about the absentee ballot process.” They invoked a view articulated by the Roberts court in 2006 that “lower federal courts should ordinarily <a href="https://supreme.justia.com/cases/federal/us/549/1/#tab-opinion-1962255">not alter the election rules</a> on the eve of an election,” even as the nation’s highest court did exactly that.</p>
<p>The court’s liberal justices objected. Led by Justice Ruth Bader Ginsburg, they wrote that they viewed the case as about <a href="https://qz.com/1657742/ideological-alliances-and-divides-on-the-us-supreme-court-charted/">much more than a small technicality</a>, but rather “a matter of utmost importance – to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.” Ginsburg’s dissent warned that “the court’s decision risks that tens of thousands of voters will be disenfranchised.”</p>
<p>That decision sent what I believe to be a clear message to Americans: Don’t turn to the Supreme Court to protect your right to vote, even in the case of a genuine emergency. If the coronavirus crisis was not enough to overcome partisan divisions among the justices about something as fundamental as voting, it is hard to imagine what will. </p>
<p>Americans wanting to protect voting rights face a dilemma. With a federal judiciary no longer willing to protect Americans’ right to vote, it is left to the people themselves to do so by voting for candidates who pledge to protect the franchise. But they may <a href="https://www.yalelawjournal.org/forum/vote-dissociation">have a hard time accomplishing this when elections</a> are made less equal and less inclusive by the Roberts court’s decisions.</p>
<p>[<em>Get facts about coronavirus and the latest research.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-facts">Sign up for The Conversation’s newsletter.</a>]</p><img src="https://counter.theconversation.com/content/136102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court under Chief Justice John Roberts has reversed its decadeslong practice of protecting voters’ rights and removing barriers to casting ballots.Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1282692019-12-06T15:59:16Z2019-12-06T15:59:16ZCourts have avoided refereeing between Congress and the president, but Trump may force them to wade in<figure><img src="https://images.theconversation.com/files/305491/original/file-20191205-39014-1v1u7z6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Congress and President Trump are engaged in a power struggle that historically has been avoided by the courts.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Congress-Unfinished-Business/70ca2b9caff44e5eaa72dc6b86743870/125/0">AP/J. Scott Applewhite</a></span></figcaption></figure><p>President Donald Trump’s <a href="https://www.washingtonpost.com/graphics/2019/politics/trump-blocking-congress/">refusal to hand over records</a> to Congress and allow executive branch employees to provide information and testimony to Congress during the impeachment battle is the strongest test yet of legal principles that over the past 200 years have not yet been fully defined by U.S. courts.</p>
<p>It’s not the first test: <a href="https://theconversation.com/trump-ukraine-and-a-whistleblower-ever-since-1796-congress-has-struggled-to-keep-presidents-in-check-124146">Struggles over power</a> among the political branches predate our Constitution. The framers chose not to, and probably could not, fully resolve them.</p>
<p>And federal judges have been reluctant to weigh in when presidents refuse to share information with Congress. From 1789 until Trump’s inauguration in 2017, <a href="https://www.scotusblog.com/2019/10/executive-privilege-congress-subpoena-power-and-the-courts-a-brief-overview-of-a-complex-topic/">federal courts had only considered five cases</a> in which the president claimed executive privilege in response to a congressional subpoena.</p>
<p>Judges believed that the framers intended for the political branches to <a href="https://crsreports.congress.gov/product/pdf/R/R45653">resolve such conflicts through negotiation</a>. </p>
<p>“Each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation,” wrote the D.C. circuit court in 1977.</p>
<p>In other words: the political branches should be able to compromise and work it out on their own. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/305489/original/file-20191205-39028-6n9pjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump’s claims of executive privilege may end up at the Supreme Court. Here, he’s with Chief Justice John Roberts after taking the oath of office, Jan. 20, 2017.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Inauguration/12cdb71d8c5b428097b28422452546a4/11/0">AP/Jim Bourg/Pool Photo</a></span>
</figcaption>
</figure>
<h2>Separation of powers</h2>
<p>The courts’ reluctantly started to intervene in power struggles between the president and Congress in 1973, when President Richard Nixon asserted absolute presidential immunity – or what’s called “executive privilege” – <a href="https://www.senate.gov/artandhistory/history/common/generic/Origins_WatergateIssuingSubpoena.htm">in response to a congressional subpoena</a> to hand over tapes related to the Watergate scandal. </p>
<p>The United States <a href="https://www.law.cornell.edu/wex/separation_of_powers_0">Constitution divides powers</a> among three co-equal branches: the executive, judicial and legislative. This separation of powers is meant to ensure that no one branch gains too much power. </p>
<p>Based on these constitutional principles, <a href="https://time.com/5605930/executive-privilege-history/">executive privilege</a> allows the president to withhold certain information from Congress, the courts and the public. Full transparency, the argument goes, could endanger the nation or prevent the president from getting candid advice from his advisers. </p>
<p>But executive privilege often clashes with <a href="https://www.loc.gov/law/help/parliamentary-oversight/unitedstates.php">Congress’s oversight role</a>. The Constitution gives Congress the power to review, monitor and supervise implementation of public policy by the executive branch.</p>
<p>Trump has championed a more expansive view of executive power than most other presidents. He has <a href="https://www.theatlantic.com/ideas/archive/2019/10/executive-privilege-cant-protect-trump-forever/599200/">asserted executive privilege over a dozen times</a> in refusing to provide information to Congress. </p>
<p>Trump’s attempts to limit congressional power extend beyond executive privilege claims. He has issued <a href="https://www.washingtonpost.com/politics/trump-turns-to-executive-powers-in-bid-to-force-congress-into-action/2017/10/14/54a48dd4-b06f-11e7-9e58-e6288544af98_story.html">executive orders in the face of congressional opposition</a> and even <a href="https://www.wsj.com/articles/trump-sues-to-block-latest-bid-for-tax-returns-11568909099">sued his own personal and business accountants</a> to prevent them from handing his tax information over to Congress. </p>
<p>Unlike previous presidents, Trump is unwilling to negotiate with Congress over their requests for materials. He is determined to <a href="https://www.nytimes.com/2019/08/13/us/politics/trump-house-lawsuits.html">take his fight with Congress</a> to <a href="https://www.cnbc.com/2019/12/05/trump-asks-supreme-court-to-hear-case-over-congressional-demand-for-his-financial-records.html">the courts</a>. </p>
<h2>Nixon’s case</h2>
<p><a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a> is <a href="https://www.nytimes.com/2019/11/15/opinion/trump-supreme-court.html">mentioned frequently now</a> as the most relevant case in the fight between Congress and Trump over executive privilege.</p>
<p>But United States v. Nixon did not consider a claim of executive privilege in response to a congressional subpoena. It was about a subpoena issued by a federal prosecutor in a criminal investigation.</p>
<p>Astonishingly, the Supreme Court has yet to weigh in when a president refuses to comply with a congressional subpoena – even though presidents since George Washington have <a href="https://www.theatlantic.com/ideas/archive/2019/10/executive-privilege-cant-protect-trump-forever/599200/">resisted congressional demands for information</a>. </p>
<p><a href="https://www.washingtonpost.com/history/2019/06/12/not-above-law-executive-privileges-contentious-history-washington-trump/">Washington</a> refused to give documents to Congress. <a href="https://fas.org/sgp/crs/secrecy/R42670.pdf">Every president since Nixon</a> has asserted executive privilege to avoid giving various kinds of information to Congress. </p>
<p>Federal courts have largely stayed out of these disputes.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=478&fit=crop&dpr=1 600w, https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=478&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=478&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=601&fit=crop&dpr=1 754w, https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=601&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/305494/original/file-20191205-38993-1rm5cly.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=601&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Nixon tells the press on March 15, 1973, that he will not allow his legal counsel, John Dean, to testify on Capitol Hill on the Watergate investigation.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-Domestic-News-Dist-of-Columbi-/5efae24b43e5da11af9f0014c2589dfb/26/1">AP/Charlie Tasnadi</a></span>
</figcaption>
</figure>
<h2>‘Novel and somewhat gingerly’ approach</h2>
<p>In 1977, the D.C. circuit court <a href="https://casetext.com/case/united-states-v-american-tel-tel-co-6">refused to consider</a> a dispute between Congress and the FBI – part of the executive branch. Congress wanted FBI letters related to wiretaps of American citizens. The court directed the two political branches to resolve it themselves. </p>
<p>The conflict wasn’t resolved and the court took the case. <a href="https://casetext.com/case/united-states-v-american-tel-tel-co-6">Its opinion states</a> the concern that courts have when approaching these questions:</p>
<blockquote>
<p>“When we first came to the case, we developed a novel and somewhat gingerly approach for the delicate problem of accommodating the needs and powers of two coordinate branches in a situation where each claimed absolute authority. To the extent possible, we wished to avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs.” </p>
</blockquote>
<p>Other federal courts have followed the D.C. circuit’s lead, emphasizing that, as the <a href="https://casetext.com/case/us-v-house-of-representatives-of-united-states">D.C. district court</a> put it, “judicial intervention should be delayed until all possibilities for settlement have been exhausted.”</p>
<h2>Precedent lacking</h2>
<p>This reluctance to intervene means there is very little controlling law on executive privilege when the president uses it to avoid congressional demands for information. </p>
<p>In 2013, the Obama administration asserted that the courts did not have jurisdiction in its dispute with Congress over documents that lawmakers had subpoenaed. The <a href="https://casetext.com/case/oversight-v-holder">D.C. district court responded by stressing</a> the importance of judicial review. Without it, said the court, one branch of the government could end up with more power than it should.</p>
<p>“No opportunity for judicial review, would elevate and fortify the executive branch at the expense of the other institutions that are supposed to be its equal,” the court wrote. </p>
<p>Courts have extended United States v. Nixon’s rejection of presidential claims of absolute immunity to congressional oversight cases. Concluding that former White House counsel, Harriet Miers, had to testify before Congress about the forced resignation of nine U.S. attorneys in 2006, <a href="https://casetext.com/case/committee-on-judiciary-v-miers-2">the D.C. district court</a> emphasized “The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisers in this or any other context.” </p>
<p>Rather, the court wrote, “an executive branch official may assert privilege on a question-by-question basis as appropriate.”</p>
<p>Courts have also upheld Congress’s oversight powers to issue subpoenas and hold recalcitrant witnesses in contempt. The <a href="https://casetext.com/case/committee-on-judiciary-v-miers-2">Miers case</a> is instructive: “Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress’s constitutional role,” wrote Judge Bates.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=226&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=226&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=226&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=284&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=284&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=284&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Nixon gave up his attempt to stop his staff from providing testimony to Congress in the Watergate scandal.</span>
<span class="attribution"><a class="source" href="https://timesmachine.nytimes.com/timesmachine/1973/05/23/issue.html?action=click&contentCollection=Archives&module=LedeAsset&region=ArchiveBody&pgtype=article">Screenshot, New York Times archive</a></span>
</figcaption>
</figure>
<h2>Trump’s cases</h2>
<p>The recent district court opinion in <a href="https://int.nyt.com/data/documenthelper/6516-jackson-ruling-in-mcgahn-subpo/92d4672db63b5cac498d/optimized/full.pdf">Committee on the Judiciary v. McGahn</a> – a case where Trump barred his White House attorney from testifying before Congress – follows these precedents. </p>
<p>Trump claimed executive privilege in McGahn. The court said, “The President does not have (and thus, cannot lawfully assert) the power to prevent his current and former senior-level aides from responding to congressional subpoenas.” </p>
<p>“If a duly authorized committee of Congress issues a valid legislative subpoena to a current or former senior-level presidential aide, the law requires the aide to appear as directed, and assert executive privilege as appropriate,” <a href="https://www.politico.com/f/?id=0000016e-a4c4-d442-a5ef-fee4e04c0000">the D.C. district court wrote</a>. </p>
<p>With several of Trump’s challenges to congressional subpoenas currently percolating in the federal courts, an ongoing impeachment investigation, and no signs of negotiations between the Trump Administration and Congress, the judiciary may have to act. They may have no choice but to fill the gaps in the law when Congress needs information from the president.</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklysmart">You can get our highlights each weekend</a>. ]</p><img src="https://counter.theconversation.com/content/128269/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>President Trump refuses to provide information to lawmakers in the impeachment inquiry. But courts have been reluctant to take such cases for fear of upsetting the government’s balance of power.Kirsten Matoy Carlson, Associate Professor of Law and Adjunct Associate Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1221752019-08-26T13:39:50Z2019-08-26T13:39:50ZDemocrats turn a venerable legal tool into a declaration of war<figure><img src="https://images.theconversation.com/files/289283/original/file-20190823-170910-17e9swo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court in June</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court/74c6fb9470104c28b37afea7c39d2262/204/0">AP/J. Scott Applewhite</a></span></figcaption></figure><p>Legal briefs, in even the most high profile cases, rarely make headlines. They are <a href="https://legal.thomsonreuters.com/en/insights/learn/how-do-i-write-appellate-brief">technical documents</a> intended to persuade judges in a case about particular points of law. </p>
<p>In American law schools, students now take courses to help them master the arcane genre of brief writing. Their <a href="https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1054&context=sulr">persuasiveness</a> depends on carefully marshaling legal precedents and complex, factual arguments. As a result, they seldom interest anyone outside the legal community. </p>
<p>On Aug. 12, we witnessed a rare exception.</p>
<p>That’s when a friend of the court brief, known as an “amicus” brief, was <a href="https://www.supremecourt.gov/DocketPDF/18/18-280/112010/20190812151259076_18-280bsacSenatorSheldonWhitehouse.pdf">filed in the Supreme Court</a> by five Democratic senators, including one presidential candidate. The senators were Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York. </p>
<p>The brief provoked considerable
<a href="https://www.esquire.com/news-politics/politics/a28761535/sheldon-whitehouse-supreme-court-corruption-guns-climate/">controversy</a> and even led to the filing of a <a href="https://www.judicialwatch.org/uncategorized/judicial-watch-files-complaint-with-rhode-island-supreme-court-against-u-s-senator-sheldon-whitehouse-for-unauthorized-practice-of-law/">legal complaint</a> against Whitehouse, who was its principal author.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sen. Sheldon Whitehouse, the main author of the amicus brief.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe-Barr/7315c890a2c443d4b3c92ae3855e42d0/9/0">AP/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>Gun regulation case</h2>
<p>The amicus brief asked the court to dismiss <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/">a challenge to a New York City ordinance</a>. The law prohibited licensed gun owners from transporting their guns out of the city, for example, to shooting ranges or second homes. </p>
<p>The challenge was issued by the New York State Rifle and Gun Association, which <a href="https://www.supremecourt.gov/DocketPDF/18/18-280/62499/20180904122332608_NYSRPA%20cert%20petition%209-04-18%20FINAL.pdf">argued</a> that such a prohibition infringed on Second Amendment gun ownership rights as well as the <a href="https://www.law.cornell.edu/wex/commerce_clause">Commerce Clause</a> and the right to travel.</p>
<p>The case seemed destined to become a <a href="https://www.fastcompany.com/90391024/us-supreme-court-2nd-amendment-guns-case-whats-at-stake">vehicle for the court to strictly limit gun regulations</a>. To ward that off, <a href="https://www.nytimes.com/2019/05/27/us/politics/supreme-court-gun-control.html">New York City repealed the offending regulation</a> in June. </p>
<p>Doing so, city officials assumed, would render the case moot. The plaintiffs would no longer have <a href="https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5966&context=ylj">standing to sue</a>, and the case would not result in weaker gun control laws. </p>
<h2>An unusual brief</h2>
<p>The senators supported that view. But their amicus brief presented little in the way of legal argument. </p>
<p>Instead it offered a broad and unprecedented indictment of the court’s conservative majority. </p>
<p>It accused the <a href="https://ballotpedia.org/Federal_judicial_appointments_by_president">five justices who were appointed by Republican presidents</a> – Samuel Alito, Neil Gorsuch, Brett Kavanaugh, John Roberts and Clarence Thomas – of pursuing a “political project” and being in league with the National Rifle Association and other pro-gun groups seeking to <a href="https://www.usatoday.com/story/news/politics/2019/05/22/nra-gun-rights-groups-seek-second-amendment-win-conservative-supreme-court/3685651002/">radically expand gun owners’ protections provided by the Second Amendment</a>. </p>
<p>The petitioners’ “effort did not emerge from a vacuum,” the brief alleged. “The National Rifle Association (NRA), promoted the confirmation (and perhaps selection) of nominees to this Court who, it believed, would ‘break the tie’ in Second Amendment cases. … This backdrop no doubt encourages petitioners’ brazen confidence that this Court will be a partner in their ‘project.’”</p>
<p>The brief was particularly harsh on Justice Kavanaugh, whose <a href="https://www.nraila.org/articles/20180807/nra-ila-launches-major-advertising-campaign-urging-confirmation-of-judge-brett-kavanaugh">confirmation was aggressively pursued by the NRA</a>. And it was blunt in documenting the alleged partisanship of the conservative justices. It quoted an NRA ad supporting Kavanaugh’s confirmation: “‘Four liberal justices oppose your right to self-defense. … Four justices support your right to self-defense. President Trump chose Brett Kavanaugh to break the tie. Your right to self-defense depends on this vote.’” </p>
<p>Pointing out the increasingly <a href="https://home.gwu.edu/%7Ebartels/Bartels%20Chapter%20-%20Polarization%20Volume%20FINAL.pdf">polarized nature of the Supreme Court</a> is standard fare in scholarly commentary. </p>
<p>Nevertheless, as someone who teaches and <a href="https://global.oup.com/ushe/product/the-social-organization-of-law-9780195330342?cc=us&lang=en&">writes about American law and courts</a> and knows the traditions and styles of brief writing, I was surprised by what the senators wrote. The <a href="https://www.wsj.com/articles/senators-file-an-enemy-of-the-court-brief-11565911608">Wall Street Journal got it right</a> when it called it an “enemy of the court brief.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Associate Justices Neil Gorsuch and Brett Kavanaugh, two of the justices targeted in the amicus brief.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/State-of-Union/c31d2587539a472195a23d113ba0f114/11/0">Doug Mills/The New York Times via AP, Pool</a></span>
</figcaption>
</figure>
<h2>A brief’s history</h2>
<p>Some legal scholars trace friend of the court briefs back to <a href="https://www.jstor.org/stable/pdf/24870502.pdf?refreqid=excelsior%3A573fd67b6d0cc3cc49fadaa7b440ca2a&seq=1">Roman law</a>. Others argue that they originated in the <a href="https://pdfs.semanticscholar.org/4f06/44147fde6850a9e6711c926dec92eb421622.pdf">English common law</a>.</p>
<p>Whatever their origins, there is no dispute about the fact that amicus briefs have been a longstanding part of Anglo American legal practice. Although filed by <a href="http://nomodos-ilcantoredelleleggi.it/2017/02/20/the-common-law-roots-of-amicus-curiae/">many different kinds of parties</a>, they have been useful vehicles for the public to make its views known to judges.</p>
<p>Today, in the United States such briefs allow interested parties, who are not themselves litigants, to bring to court
“<a href="https://www.law.cornell.edu/rules/supct/rule_37">relevant matter not already brought to its attention by the parties</a>.” For example, in 2013, the American Psychological Association submitted a <a href="https://www.apa.org/about/offices/ogc/amicus/fisher">brief</a> in an important affirmative action case that offered scientific evidence about the educational benefits associated with campus diversity. </p>
<p>Amicus briefs are a <a href="https://www.jstor.org/stable/pdf/3053362.pdf?refreqid=excelsior%3A214a9ae0c58fa3e6e87e63def50b485f&seq=1#page_scan_tab_contents">growing feature of Supreme Court litigation</a>. A <a href="http://www.virginialawreview.org/sites/virginialawreview.org/files/Larsen%26Devins_Online.pdf">study by two law professors</a> found that “submissions at the Supreme Court have increased 800 percent since 1954 and 95 percent between 1995 and 2015.”</p>
<p>In addition, a story on the Columbia Law School’s website says that <a href="https://www.law.columbia.edu/news/2019/01/supreme-court-amicus-curiae-briefs">in the Supreme Court’s 2017–2018 term</a>, “Amicus curiae briefs were filed in every one of the 63 argued cases, averaging just over 14 briefs per case, a new record.” </p>
<h2>Do they matter?</h2>
<p>Harvard law professor Noah Feldman <a href="https://www.bloomberg.com/opinion/articles/2016-03-09/the-dark-side-of-those-amicus-briefs-at-the-supreme-court">contends</a> that those briefs do not help the court and impose substantial burdens on the justice’s clerks, who are responsible for reading and digesting them. Another law professor, Philip Kurland, <a href="https://www.jstor.org/stable/pdf/1599505.pdf?refreqid=excelsior%3Aefbb272aa9fbd99fbf7f05c070f8c3c2&seq=1#page_scan_tab_contents">once called the filing of amicus briefs</a> “a waste of time, effort, and money.”</p>
<p>Yet those briefs have been important to groups, like the <a href="https://www.naacp.org/naacp-legal-team/amicus-briefs-archives/">NAACP</a>, seeking to expand civil rights protections. One of the NAACP’s most influential briefs was filed by future Justice <a href="https://www.npr.org/2003/12/08/1535826/thurgood-marshall-and-brown-v-board-of-ed">Thurgood Marshall</a> in <a href="https://www.law.cornell.edu/supremecourt/text/347/483">Brown v. Board of Education</a>. It helped the court understand the pernicious effects of segregation on black school children. </p>
<p>Friend of the court briefs also are often <a href="https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195372144.001.0001/acprof-9780195372144">submitted by well-financed interest groups or organizations</a> seeking to shape court decisions. </p>
<p>Amicus briefs <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3356&context=penn_law_review">are cited frequently in Supreme Court opinions</a>. In the 2017-18 term, <a href="https://www.arnoldporter.com/-/media/files/perspectives/publications/2018/10/supreme-court-amicus-curiae-review.pdf">justices did so</a> in 23 majority, 21 dissenting, and five concurring opinions. </p>
<h2>‘Declaration of war’</h2>
<p>Neither Thurgood Marshall, nor those routinely filing friend of the court briefs, have used them to accuse the court of providing “a friendly audience” for a particular interest group. </p>
<p>The directness and harshness of the rhetoric in the senators’ brief may be a reflection of <a href="https://www.nytimes.com/2018/06/20/us/politics/trump-language-immigration.html">the temper of America’s legal and political culture in the age of Donald Trump</a>. Or, it may be a logical next step in a <a href="https://www.npr.org/sections/itsallpolitics/2012/12/19/167645600/robert-borks-supreme-court-nomination-changed-everything-maybe-forever">war over the Supreme Court’s direction</a> that began with the Senate’s 1987 rejection of the nomination of conservative hero Robert Bork.</p>
<p>Whatever its causes, the brief signals the transformation of a venerable legal tool into a weapon of Democratic partisan combat. This weapon is aimed at a court likely to be controlled for the foreseeable future by Republican-appointed justices.</p>
<p>The brief concludes with the warning that the court must “heal itself” lest it be “restructured.” As one progressive group aptly <a href="https://thinkprogress.org/five-democratic-senators-just-declared-all-out-war-on-the-supreme-court-7601fed719e6/">noted</a>, that warning is less the work of a legal document than “a declaration of war.”</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/122175/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Was a friend-of-the-court brief filed with the Supreme Court by five Democratic senators a legal argument – or a political threat?Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1197082019-07-08T10:58:46Z2019-07-08T10:58:46ZRoberts rules: The 2 most important Supreme Court decisions this year were about fair elections and the chief justice<figure><img src="https://images.theconversation.com/files/282354/original/file-20190702-126396-4xw3ik.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court is on summer vacation, but because of John Roberts, they may have to come back.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Final-Day/e40cdb2a97004186b9a5219098de14f8/1/0">AP/J. Scott Applewhite</a></span></figcaption></figure><p>The week before Independence Day, Chief Justice John Roberts gave the United States two extraordinary rulings on the nature of American democracy. Both cases are about fair elections, and both outcomes are all about John Roberts.</p>
<p>The first <a href="https://theconversation.com/after-supreme-court-decision-gerrymandering-fix-is-up-to-voters-117307">enshrines the partisan manipulation of voting districts</a>, what’s called “gerrymandering,” as a practice beyond the control of the courts.</p>
<p>The second ruling challenged the Trump administration to <a href="https://theconversation.com/why-the-supreme-court-asked-for-an-explanation-of-the-2020-census-citizenship-question-119567">speak openly about its views on citizenship and representation</a>. The administration declined and <a href="https://www.nytimes.com/2019/07/02/us/trump-census-citizenship-question.html">departed the field</a> abruptly on July 2. However, President Trump <a href="https://twitter.com/realDonaldTrump/status/1146435093491277824">tweeted</a> the next day that he is “absolutely moving forward” with the census citizenship question, so the controversy will continue.</p>
<h2>A right to fair elections?</h2>
<p>The text of the Constitution protects many rights, <a href="https://www.theatlantic.com/national/archive/2013/08/what-does-the-constitution-actually-say-about-voting-rights/278782/">but voting in an election with fair rules is not one of them</a>. </p>
<p>The two cases this year – on the census in <a href="https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf">Department of Commerce v. New York</a> and on gerrymandering in <a href="https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf">Rucho v. Common Cause</a> – challenged the Supreme Court to change this.</p>
<p>The justices did not. </p>
<p>From my perspective as <a href="https://www.routledge.com/A-Citizens-Guide-to-the-Constitution-and-the-Supreme-Court-Constitutional/Marietta/p/book/9780415843812">a student of constitutional politics</a> – and co-editor of an annual <a href="https://www.palgrave.com/gp/book/9783030112547">series on the Supreme Court’s major decisions</a> – the cases are intimately connected. </p>
<p>The <a href="https://www.census.gov/history/pdf/Article_1_Section_2.pdf">Constitution commands</a> a count of the population every 10 years so that we can know how many representatives in Congress and votes in the <a href="https://www.archives.gov/federal-register/electoral-college/about.html">Electoral College</a> each state receives for the following decade.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/282361/original/file-20190702-126396-cmcs4v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chief Justice John Roberts, center, at the 2019 State of the Union speech. To his left is Justice Elena Kagan.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/State-of-Union/cdf43f81b8a64d4992151828f5b7be15/9/0">AP/Doug Mills, The New York Times</a></span>
</figcaption>
</figure>
<p>Then those same data are used by each state to establish the new boundaries of its legislative districts. The data are also used to determine how much money the federal government sends states for a variety of mandated programs.</p>
<p><a href="https://ballotpedia.org/Redistricting">In 2021 the redistricting will happen again</a>, there may be lawsuits in response, and so on. Count, redistrict, sue, vote, repeat.</p>
<p>This process of counting people and then dividing them into districts is the heart of how we turn the democratic ideal – representation of the people – into the selection of leaders through elections. But what that process should look like is anything but clear, because it raises problematic questions about who is represented and how.</p>
<h2>The irony of gerrymandering</h2>
<p>The gerrymandering case is about <a href="https://www.nytimes.com/2019/06/27/us/politics/supreme-court-gerrymandering.html">whether the political party in control of a state legislature can alter the electoral maps</a> to make it harder for their party to be removed from office. </p>
<p>To many, this sounds like a clear violation of representative democracy. But has a right been violated? If not, then allocating electoral districts remains a power assigned to the political branches, which means the courts have little role in it.</p>
<p>The core problem the Supreme Court faces in dealing with even blatant gerrymandering is that the Constitution does not identify a clear right to fair elections. It speaks of <a href="https://www.law.cornell.edu/constitution/first_amendment">rights to freedom of speech, religion and the press</a>, but it does not mention freedom from manipulation in counting Americans or allocating them to electoral districts. </p>
<p>The irony of the court’s ruling is that gerrymandering can only be solved by voters showing disapproval of the politicians who shifted the rules, but those shifts are what make it harder for voters to do that.</p>
<h2>The politics of the census</h2>
<p>While previous Supreme Court rulings left room for future challenges to gerrymandering (better measures, worse examples), the recent decision seems to be definitive. I believe the practice <a href="https://www.nytimes.com/2019/07/05/us/gerrymandering-state-legislatures-elections.html?action=click&module=Top%20Stories&pgtype=Homepage">will surely increase in the future</a>, insulated from judicial challenge.</p>
<p>But the prospects for the 2020 census are not so clear.</p>
<p>The census case is about whether including a citizenship question violates the constitutional command to conduct an accurate count. </p>
<p>Underneath this question is the debate over who gets to be represented in our system. Is it everyone living in the United States? Or is it just citizens? </p>
<p>If “the people” are to be represented, defining those people in the current political age has proved to be <a href="https://www.nytimes.com/2018/11/28/magazine/donald-trump-census.html">deeply divisive</a>. But it must be done if the census is to count the people who count.</p>
<p>The plaintiffs contend that the commerce secretary, Wilbur Ross, intentionally added the citizenship question to discourage recent Hispanic immigrants from filling out the census form. They offer an analysis from the Census Bureau concluding that <a href="https://www.nytimes.com/2019/06/27/us/citizenship-question-census.html">including the question will lower the response rate</a> by noncitizens by about 5%, resulting in millions of people being uncounted, unrepresented and unfunded in federal government programs.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=432&fit=crop&dpr=1 600w, https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=432&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=432&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=543&fit=crop&dpr=1 754w, https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=543&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/282364/original/file-20190702-126364-1ryr5w2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=543&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Commerce Secretary Wilbur Ross testifying before Congress about the 2020 census on March 14, 2019.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Census-Citizenship-Question-Trial/36507b9f6af541c9a19342f70bf84879/147/0">AP/Jose Luis Magana</a></span>
</figcaption>
</figure>
<h2>The commander-in-chief justice</h2>
<p><a href="https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf">Roberts</a> <a href="https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf">wrote the court’s opinions</a> in both cases, the fifth justice in each 5-4 decision.</p>
<p>In the gerrymandering case, <a href="https://www.vox.com/policy-and-politics/2019/6/27/18681923/supreme-court-gerrymandering-partisan-rucho-common-cause">Roberts joined with the other four conservatives</a> against intervention by the court. In the census case, he did not really decide at all. While the four liberal justices were willing to reject the citizenship question outright, (<a href="https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf">which they made clear in a separate concurring opinion</a>), Roberts would only go so far as demanding more information first. </p>
<p>With the acquiescence of the four liberal justices, Roberts returned the case to the Commerce Department for a response, because “the evidence tells a story that does not match the explanation” given by the commerce secretary. He concludes that “what was provided was more of a distraction” than a true account. Therefore the administration would need to provide a new explanation for why it included the citizenship question.</p>
<p>This gave the Trump administration the option of offering a new justification or dropping the question.</p>
<p>In one sense, Roberts demanded that the court be told the truth. If the Trump administration wants a citizenship question because they simply want to know who is a citizen or because they believe representation should rely on citizenship, they would have to say so. Only then would Roberts rule on whether asking about citizenship violates the Constitution.</p>
<p>In another sense, Roberts made the decision his own. If the Trump administration does abandon the question, Roberts will have called out their misrepresentation of the question’s purpose and forced their abdication. </p>
<p>And if the administration does respond with a new justification, the other eight justices are all on record canceling each other out 4-4, setting him up to have the final say. (That could happen in an emergency session of the court this summer. It could also be <a href="https://twitter.com/realDonaldTrump/status/1144298731887628288">delayed until October</a> when the court reconvenes, which would degrade the census further.) </p>
<p>Who won the two most important cases of 2019? In one way of keeping score, the advocates of fair elections lost one and sent the other into extra innings.</p>
<p>The undisputed winner is the influence of John Roberts.</p><img src="https://counter.theconversation.com/content/119708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Conflict made its way to the Supreme Court this past session with two cases – one about the census, the other about gerrymandering. A court scholar says the two cases are intimately connected.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1044512018-10-09T10:44:23Z2018-10-09T10:44:23ZJustice Kavanaugh is a threat to Roe v. Wade – but not the only one<figure><img src="https://images.theconversation.com/files/239838/original/file-20181009-72106-1h1yjmt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump with Supreme Court Justice Brett Kavanaugh at his swearing in. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Supreme-Court/ad8eacfd5b3540399f3d96e7cf7f50c7/8/0">AP Photo/Susan Walsh</a></span></figcaption></figure><p>With the confirmation of Brett Kavanaugh to the U.S. Supreme Court, some are wondering: Will Roe v. Wade, the landmark case recognizing a woman’s right to choose to terminate a pregnancy, continue to be the law of the land? </p>
<p>Kavanaugh told Sen. Susan Collins, a <a href="https://www.cnn.com/2018/10/05/politics/kavanaugh-nomination-vote-friday/index.html">key vote</a> to approve his nomination, that he viewed Roe v. Wade as <a href="https://www.politico.com/story/2018/08/21/brett-kavanaugh-roe-v-wade-susan-collins-790632">“settled law</a>.” But from my vantage point as <a href="https://scholar.google.com/citations?user=uAaBGrMAAAAJ&hl=en&oi=sra">a constitutional law professor</a> who also litigates reproductive rights cases, the future of Roe v. Wade looks more tenuous than it ever has.</p>
<h2>A new vacancy, a new court</h2>
<p>Replacing Justice Anthony Kennedy, <a href="https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-retire-supreme-court.html">who retired this summer</a>, with Kavanaugh, who was a deeply conservative judge during his time on the D.C. Circuit Court of Appeals, will fundamentally remake constitutional doctrine in this area.</p>
<p>In 1992, Kennedy’s swing vote preserved Roe v. Wade in a 5-4 decision known as <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a>. More recently, in the 2016 case of <a href="https://www.oyez.org/cases/2015/15-274">Whole Woman’s Health v. Hellerstedt</a>, Justice Kennedy’s vote was critical to the five-justice majority, which again affirmed the right to choose as fundamental. </p>
<p>But, despite what he told Collins, Kavanaugh has expressed hostility to Roe. </p>
<p>In a <a href="https://www.aei.org/wp-content/uploads/2017/08/from-the-bench.pdf">public speech last year</a>, Kavanaugh praised the late Chief Justice William Rehnquist’s dissent from the Roe decision. He also <a href="http://www.scotusblog.com/wp-content/uploads/2017/11/17-654-opinion-below.pdf">voted against an undocumented minor</a> in government custody who wanted an abortion, complaining that the judges who voted in favor of the young woman were granting a right to “abortion on demand” and arguing that the woman should have to delay the procedure for a few weeks until a family could be found to sponsor her. </p>
<p>This record suggests Kavanaugh could provide a critical fifth vote to the anti-Roe wing of the court, joining justices Clarence Thomas, John Roberts, Samuel Alito and Neil Gorsuch. </p>
<h2>What happens if Roe is overruled?</h2>
<p>If the Supreme Court votes to overrule Roe, it wouldn’t immediately make abortion illegal throughout the country. That would probably require five justices to decide that embryos and fetuses are “persons” entitled to constitutional protection. No justice – not even the strongly anti-abortion Justice Antonin Scalia – has ever taken such an extreme view.</p>
<p>Instead, the court would probably say that states are allowed to restrict abortion however they see fit. The court may rule that states can choose to protect “potential life,” and that the woman’s right to choose whether and when to become a parent is not strong enough to overcome the state’s interest in protecting fetuses.</p>
<p>That means some states would probably outlaw abortion altogether, perhaps with narrow exceptions in cases of rape or incest, or when the woman’s life is in danger. Other states may place few or no restrictions on abortion – perhaps making it illegal only once the fetus is viable, typically after <a href="https://www.theatlantic.com/politics/archive/2015/01/a-look-at-late-term-abortion-restrictions-state-by-state/448098/">the 22nd week of pregnancy</a>.</p>
<h2>A challenge in the states</h2>
<p>Numerous states stand ready to mount a challenge to Roe. </p>
<p>In 2018 alone, seven states have introduced or passed so-called <a href="https://rewire.news/legislative-tracker/law-topic/heartbeat-bans/">“heartbeat bills”</a> that ban abortion as early as six weeks of pregnancy. These laws are bold assaults on Roe’s central premise: that states cannot ban abortions early in pregnancy. </p>
<p>A challenge to a “heartbeat bill” could bring Roe before the court, but in reality, a challenge to a law like that isn’t even necessary. In fact, almost any abortion case, including several that are already pending, could become a vehicle for overturning Roe if the justice choose to hear it. The Supreme Court gets to pick and choose the cases it hears and needs only four justices to vote to hear a case. That means it might decide to weigh in on abortion rights as soon as this fall.</p>
<p>For example, the newly composed Supreme Court could decide to take up the constitutionality of laws in Ohio or Indiana banning abortions sought for particular reasons, such as fetal anomaly. Both laws have been <a href="https://www.usatoday.com/story/news/politics/2018/03/15/down-syndrome-abortion-ban-blocked/427408002/">blocked by federal courts</a>, and either could still be appealed to the Supreme Court. If the court decides to hear one of those cases, it could uphold the laws on the grounds that Roe was incorrect and a new, more relaxed legal standard should apply to abortion restrictions. </p>
<p>What’s more, <a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">nine states</a>, including Wisconsin and West Virginia, actually still have pre-Roe abortion bans on the books. These laws weren’t being enforced as long as Roe was the law of the land. If Roe is overturned, it’s possible that prosecutors in those states would try to bring criminal charges against doctors performing abortions, without even waiting for the legislature to pass a new law banning abortion. </p>
<p><a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">Four additional states</a> – North Dakota, South Dakota, Louisiana and Mississippi – have passed so-called “trigger laws” providing that abortion will become illegal the moment Roe is overruled. </p>
<p>Even in the absence of laws such as these, though, many state legislatures won’t hesitate to enact new abortion bans immediately. In fact, the Center for Reproductive Rights considers only <a href="https://www.reproductiverights.org/what-if-roe-fell">21 states to be relatively low-risk</a> for passing new abortion bans if Roe fell. </p>
<p>Of these 21, a few states are expected to take an active role in protecting abortion access in the absence of Roe. This would likely mean that women in Massachusetts would live under a permissive set of laws, while women in Mississippi would face more restrictive ones.</p>
<h2>The role of Roberts</h2>
<p>Of course, it’s possible that Roe will live another day. </p>
<p>With Kavanaugh seated, Chief Justice John Roberts will be at the ideological center of the court, with four conservatives – Thomas, Alito, Gorsuch and Kavanaugh – all to the right of him. Roberts is therefore likely to become the swing vote. </p>
<p>Roberts is a <a href="https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1073&context=faculty_publications">famously careful jurist</a> who often avoids overruling precedent by issuing a narrow opinion instead. He is also likely concerned about his legacy. He might not want the Roberts Court to be the court that overruled Roe and took away the right to choose. He might be concerned about the backlash among members of the public, who have long assumed that Roe was here to stay and who <a href="http://www.pewresearch.org/fact-tank/2017/01/03/about-seven-in-ten-americans-oppose-overturning-roe-v-wade/">favor keeping it by more than a two-to-one margin</a>.</p>
<p>Then again, many justices have affirmed their devotion to precedent, only to later overturn it. Both Roberts and Gorsuch spoke favorably about following precedent during their Senate confirmation hearings. Yet both justices voted in June 2018 to overturn a unanimous Supreme Court case protecting the rights of unions – <a href="https://www.oyez.org/cases/1976/75-1153">Abood v. Detroit Board of Education</a> – that had stood undisturbed for more than 40 years. </p>
<p>Still, it’s important not to lose sight of the bigger picture. </p>
<p>Whether or not Roe goes, with Kavanaugh on the bench the Supreme Court is likely to shift far to the right on reproductive rights — potentially affecting not just abortion, but access to contraception as well. One sign of this shift is Kavanaugh’s record <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/425C0AE29F10AFD785257E4B00767BF5/$file/13-5368.pdf">of siding with employers seeking to block employees’ access to birth control</a> under the ACA. </p>
<p>And, even if Roe isn’t overturned, it may continue to exist in name only, as the Supreme Court is likely to uphold every sort of restriction short of an outright abortion ban. </p>
<p>In short, there are many possible paths for Roe v. Wade in the future, and significant questions remain. One thing is almost certain, though – the court will continue to erode the power of Roe.</p>
<p><em>This story has been updated from <a href="https://theconversation.com/will-the-supreme-court-overturn-roe-v-wade-and-if-it-does-what-happens-to-abortion-rights-99248">a version</a> published on Aug. 2, 2018. <a href="https://theconversation.com/could-roe-v-wade-be-overturned-73235">An earlier version</a> appeared on March 19, 2017.</em></p><img src="https://counter.theconversation.com/content/104451/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>B. Jessie Hill receives funding from an anonymous foundation that supports research on reproductive health care. She is a volunteer attorney for the ACLU of Ohio and litigates challenges to abortion restrictions.</span></em></p>Many states are also eroding a woman’s right to access abortions.B. Jessie Hill, Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1028202018-09-07T19:41:36Z2018-09-07T19:41:36ZKavanaugh’s ‘judge as umpire’ metaphor sounds neutral but it’s deeply conservative<p>Supreme Court nominee Judge Brett Kavanaugh invoked baseball to explain his judicial philosophy at his confirmation hearing. </p>
<p>“A good judge,” <a href="https://www.nytimes.com/2018/09/04/us/politics/judge-brett-kavanaughs-opening-statement-full-prepared-remarks.html">he said in his opening statement to the Senate Judiciary Committee on Sept. 4</a>, “must be an umpire – a neutral and impartial arbiter who favors no litigant or policy.” </p>
<p>This is not the first time a Supreme Court nominee has employed the judge-as-umpire analogy. <a href="https://www.nytimes.com/2005/09/12/politics/politicsspecial/robertss-opening-statement-before-senate-panel.html">Chief Justice John Roberts</a> told senators at his 2005 confirmation hearing, “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. … But it is a limited role.”</p>
<p>The reference to America’s national pastime may sound politically neutral, but it is not. </p>
<p>As a scholar of <a href="https://www.cambridge.org/core/journals/ps-political-science-and-politics/article/umpires-as-legal-realists/ABDFD962D2C8BF2EC68B4E0C20013C20">judicial decision-making</a>, I recognize that this analogy reflects the conservatism of Kavanaugh’s and Roberts’ judicial philosophies.</p>
<h2>Originalism - getting the call right?</h2>
<p>Conservative jurists and legal scholars believe that judges must interpret the Constitution according to its framers’ <a href="https://www.npr.org/2016/02/14/466744465/originalism-a-primer-on-scalias-constitutional-philosophy">original understanding</a>, just as umpires must call a strike on any pitch in the strike zone. There is only one answer, grounded in observable facts.</p>
<p>This judicial philosophy – called “<a href="https://www.ncronline.org/news/opinion/distinctly-catholic/kavanaugh-hearings-prompt-closer-look-originalism">originalism</a>” – says that if judges spend enough time studying the facts of a case and American history, they will find the one correct response to a constitutional dispute.</p>
<p>In a 2016 <a href="https://scholarship.law.edu/cgi/viewcontent.cgi?article=3383&context=lawreview">speech</a> titled “The Judge as Umpire: Ten Principles,” Kavanaugh extolled the virtues of rule-following and consistency in law and sports.<br>
Aspiring umpires in training schools spend dozens of <a href="http://www.umpireschool.com/curriculum">classroom hours</a> poring over the <a href="http://mlb.mlb.com/documents/0/8/0/268272080/2018_Official_Baseball_Rules.pdf">baseball rule book</a>. To apply their knowledge, they do drills on the field, practicing their footwork and learning how to react to different situations. </p>
<p>They strive for military precision so that strikes and outs are called correctly every time, just as the baseball commissioner intended when writing down the rules.</p>
<p>Originalists similarly believe that judges must interpret the Constitution precisely as the Founding Fathers did. To ignore the framers’ intention, <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained/?noredirect=on">they say</a>, would effectively be rewriting the rules in the middle of the game.</p>
<h2>Subjectivity in the law</h2>
<p>Judge Kavanaugh is a <a href="https://www.washingtonpost.com/investigations/supreme-court-nominee-brett-kavanaugh-piled-up-credit-card-debt-by-purchasing-nationals-tickets-white-house-says/2018/07/11/8e3ad7d6-8460-11e8-9e80-403a221946a7_story.html?utm_term=.7828a65b3b00">Washington Nationals</a> season ticket holder. If confirmed, he would join several other die-hard baseball fans – including the conservative <a href="https://www.mlb.com/cut4/justice-sotomayor-sat-in-judges-chambers-at-yankees-game/c-251712912">Justice Samuel Alito</a> and <a href="http://thelegalintelligencer.typepad.com/tli/2008/10/justice-alito-phillies-phanatic.html">Justice Sonia Sotomayor</a>, an Obama appointee – on the Supreme Court. </p>
<p>But if these three justices umpired a baseball game, conservatives Alito and Kavanaugh might make some calls differently than Sotomayor.</p>
<p>Liberal justices think judges will disagree about how to solve legal questions, based on each judge’s worldview. Advocates of this “<a href="https://www.law.uchicago.edu/news/living-constitution">living Constitution</a>” theory think it is healthy for the 250-year-old Constitution to be reinterpreted as American society – and the needs of its citizens – change over time.</p>
<p>In speeches before she joined the Supreme Court, Justice Sotomayor explained that a judge’s particular life experiences <a href="http://www.cnn.com/2009/POLITICS/06/05/sotomayor.speeches/index.html">as a “Latina woman,” say, or a “white male”</a> bring important intellectual diversity to the bench.</p>
<p>Sotomayor clarified in her 2009 Senate <a href="https://www.cbsnews.com/news/sotomayor-explains-wise-latina-comment/">confirmation</a> that she was not arguing that judges are or should be partisan. Rather, she believes that objectivity is an aspiration no judge can fully achieve because the law itself is not neutral. </p>
<p>The court’s jurisprudence on abortion, for example, affects women differently than men.</p>
<h2>What if the rules aren’t clear?</h2>
<p>Umpires, too, have acknowledged their job is also somewhat subjective. </p>
<p>They strive for consistency in their calls. But as the 24-year Major League Baseball veteran <a href="https://www.nytimes.com/2009/07/12/weekinreview/12weber.html">Gary Cederstrom</a> once said in refuting the comparison between baseball and originalism, some umpires may create a strike zone that is slightly larger or tighter than the <a href="http://m.mlb.com/glossary/rules/strike-zone">rule book’s standard</a>.</p>
<p>Officially, the strike zone goes from roughly the batter’s knees to the letters on his jersey. Cederstrom says flexibility in applying that rule is appropriate because each umpire has a slightly different view of what pitch a batter can reasonably hit. </p>
<p>The strike zone is “like the Constitution,” he said – “a living, breathing document.”</p>
<p>The baseball <a href="http://mlb.mlb.com/documents/0/8/0/268272080/2018_Official_Baseball_Rules.pdf">rule book</a> even uses phrases like “in the umpire’s judgment” over 80 times, by my count. </p>
<p>And its contents are sometimes incomplete or indeterminate. Take the very first rule, 1.01, which states that, “Baseball is a game between two teams of nine players each.” </p>
<p>Baseball fans know that in the American League, but not the National League, a <a href="http://m.mlb.com/glossary/rules/designated-hitter-rule">designated hitter</a> may bat for the pitcher. Isn’t he a 10th player?</p>
<h2>Recapping the final score</h2>
<p>Neither umpiring nor judging seems to me to be a wholly objective enterprise. </p>
<p>But I don’t want to take Kavanaugh’s sports analogy too far, because ultimately it glosses over significant differences between the Constitution and the rules of baseball. </p>
<p>As <a href="http://www.latimes.com/opinion/op-ed/la-oe-chemerinsky-kavanaugh-umpire-20180905-story.html">University of California, Berkeley law professor Erwin Chemerinksy</a> wrote in a recent Los Angeles Times opinion piece, “The Constitution was written – intentionally – in broad, open-ended language that rarely provides guidance for issues that must be resolved by the Supreme Court.”</p>
<p>Most Americans are aligned with Chemerinksy’s view. </p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567702">Polling</a> shows that, on average, 52 percent of people believe the Constitution should be interpreted in light of “changing times and current realities.” Just 42 percent believe, like Kavanaugh, that “the Supreme Court should only consider the original intentions of the authors of the Constitution.” </p>
<p>The “judges-as-umpires” analogy is unlikely to change their minds. </p>
<p>According to research by political scientist <a href="https://www.press.uchicago.edu/ucp/books/book/chicago/E/bo13859990.html">James Gibson of Washington University in St. Louis</a>, people generally believe judges try to be as impartial as possible while making decisions that are ultimately subjective. </p>
<p>As evidence, residents of states with elected judges <a href="https://books.google.com/books?id=q4EqIBhE-c4C&printsec=frontcover&dq=electing+judges&hl=en&sa=X&ved=0ahUKEwiOpK67j6ndAhVNs1kKHazMATMQ6AEIKTAA#v=onepage&q&f=false">do not lose faith</a> in the courts, even when judicial candidates tell voters where they stand on controversial issues like abortion.</p>
<p>Kavanaugh tried to transform abstract debates about legal theory into the more familiar context of sports. But ultimately his baseball metaphor reveals less about American justice than it does about his own judicial conservatism.</p><img src="https://counter.theconversation.com/content/102820/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William Blake does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Kavanaugh thinks judges ‘must be an umpire – a neutral and impartial arbiter.’ So does Chief Justice Roberts. But more liberal jurists believe that the application of the law is inherently subjective.William Blake, Assistant Professor of Political Science, University of Maryland, Baltimore CountyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/805882017-07-09T23:46:34Z2017-07-09T23:46:34ZThe Supreme Court, religion and the future of school choice<figure><img src="https://images.theconversation.com/files/177157/original/file-20170706-10491-1qzlnvg.jpg?ixlib=rb-1.1.0&rect=588%2C109%2C4472%2C3110&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court's decision in the Trinity Lutheran case is blurring the lines between church and state.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/chiangmai-thailand-march-222015-two-boys-262562096?src=V_7R_iqvQZsrSIcdYp1ZIA-1-3">aradaphotography/Shutterstock.com</a></span></figcaption></figure><p>The Supreme Court <a href="https://apnews.com/a494b90c0244404183483df6a8618a66">recently decided</a> that Trinity Lutheran Church should be eligible for a Missouri state grant covering the cost of recycled playground surfaces. Though the state originally rejected the church’s application on grounds of separation of church and state, <a href="https://www.oyez.org/cases/2016/15-577">the Supreme Court ruled</a> that this rejection was, in fact, religious discrimination.</p>
<p>The case’s impact will probably reach well beyond playgrounds.</p>
<p>As a scholar of education law, I’ve been following the Trinity Lutheran case and what it could mean for the hottest issue in education: school choice. Where in the past states have decided for themselves whether religious schools are eligible for <a href="http://www.ncsl.org/research/education/voucher-law-comparison.aspx">school vouchers</a> and <a href="https://theconversation.com/tax-credits-school-choice-and-neovouchers-what-you-need-to-know-74808">scholarship tax credits</a>, the Trinity Lutheran decision likely signals that the Supreme Court will soon require states to include religious private schools in their programs.</p>
<p>This would be a huge win for school choice advocates and would complete a revolution in the Supreme Court’s understanding of the law on government funding of religious institutions.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Activist group Concerned Women for America shows support for Trinity Luthern Church in front of the Supreme Court in Washington, D.C.</span>
<span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span>
</figcaption>
</figure>
<h2>Of church playgrounds and discrimination</h2>
<p>In 1995, Missouri established <a href="https://dnr.mo.gov/env/swmp/tires/tirefinassistance.htm">a program offering reimbursement grants</a> to qualifying nonprofits that installed playground surfaces made from recycled tires. Trinity Lutheran Church, which runs a preschool and daycare center, applied for a grant in 2012, but the state rejected the church’s application. Why? The <a href="http://www.moga.mo.gov/mostatutes/ConstArticles/Art01.html">Missouri Constitution</a> states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”</p>
<p>Trinity Lutheran challenged the state’s decision as a violation of <a href="https://www.law.cornell.edu/wex/free_exercise_clause">the Free Exercise Clause</a>, and in June the U.S. Supreme Court <a href="https://supreme.justia.com/cases/federal/us/582/15-577/opinion3.html">agreed</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Scrap Tire Surface Material Grant was awarded to two applicants in the 2017 fiscal year.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/ssedro/384644450/in/photolist-5afdGE-aMshTP-6bUGGs-7qgcDn-6cdYdp-68FByJ-kFYcYp-6ci7wL-kFYe6z-6uUeDY-kGZtwT-6uUeFo-kFYeti-7Yn2fJ-6uUeFY-6uUeRu-6uUeZo-6uQ4w2-6uQ4r2-kFZMmq-6uQ4gv-6uUeN5-6uQ4qF-6uUeKE-6uUeYu-zZpoS-6uQ4k4-6uUeUW">ssedro</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>This result will strike many as <a href="http://www.cnn.com/2017/06/26/opinions/religious-liberty-battle-shapiro-opinion/index.html">intuitively correct</a>. A playground is a playground whether or not it’s run by a church, so the threat to separation of church and state seems slim, and the cry of religious discrimination seems plausible.</p>
<p>The case’s reasoning, however, may signal a significant shift in how the law views the separation of church and state. To understand why, we need to review some history.</p>
<h2>1784: Three pence to religious education</h2>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=742&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=742&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=742&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=933&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=933&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=933&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 1785, James Madison wrote his ‘Memorial and Remonstrance Against Religious Assessments,’ asserting that religion should be kept separate from government.</span>
<span class="attribution"><a class="source" href="http://www.loc.gov/pictures/item/96522271/">Library of Congress</a></span>
</figcaption>
</figure>
<p>In 1784, <a href="https://classroom.monticello.org/media-item/a-bill-establishing-a-provision-for-teachers-of-the-christian-religion/">Patrick Henry proposed a bill</a> in the Virginia legislature that would have levied a tax to support “teachers of the Christian religion” (i.e., ministers). James Madison, however, <a href="https://www.billofrightsinstitute.org/founding-documents/primary-source-documents/memorial-and-remonstrance/">successfully opposed the bill</a>.</p>
<p>On the question of funding religion with tax money, Madison asked: “Who does not see that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”</p>
<p>More than 150 years later, in <a href="https://www.oyez.org/cases/1940-1955/330us1">Everson v. Board of Education</a> (1947), this controversy played a prominent role in the Supreme Court’s interpretation of <a href="http://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion">the Establishment Clause of the First Amendment</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=749&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=749&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=749&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=941&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=941&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=941&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Justice Hugo Black in 1937.</span>
<span class="attribution"><a class="source" href="http://www.loc.gov/pictures/resource/cph.3b00098/">Library of Congress</a></span>
</figcaption>
</figure>
<p>In applying the Establishment Clause to states for the first time, the justices in the Everson case emphasized Madison’s objections to the Virginia tax in concluding that the framers of the Constitution had intended to establish “a wall of separation between Church and State.”</p>
<p>In <a href="https://supreme.justia.com/cases/federal/us/330/1/case.html">the Everson decision</a>, Justice Hugo Black interpreted this “wall” to mean:</p>
<blockquote>
<p>“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”</p>
</blockquote>
<h2>The Supreme Court changes its tune</h2>
<p>Until the mid-1980s, the Supreme Court <a href="http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1335&context=ijgls#page=20">mostly adhered</a> to the no-funding mantra announced in the Everson case. Gradually, however, the court’s commitment to such hard-line separation waned.</p>
<p>Much of this came down to a shift in perception: The 21st century is very different from the world of the 1780s, where government was small and taxes relatively rare. Today, government is pervasive, and government money flows to a wide range of institutions. Increasingly, the Supreme Court recognized that allowing some money to flow to religious institutions via general government grant programs was <a href="http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1335&context=ijgls#page=19">quite different</a> from the Virginia tax Madison had opposed.</p>
<p>By <a href="https://www.oyez.org/cases/2001/00-1751">2002</a>, the court had settled on its current approach to the Establishment Clause – an approach <a href="http://www.pewforum.org/2009/05/14/shifting-boundaries-the-establishment-clause-and-government-funding-of-religious-schools-and-other-faith-based-organizations/">much more permissive</a> than what was laid out in the 1947 Everson case.</p>
<p>Fast-forward to 2017, and seven justices agreed that giving Trinity Lutheran Church its playground grant would not violate the federal Establishment Clause. (Justices Sonia Sotomayor and Ruth Bader Ginsburg <a href="https://supreme.justia.com/cases/federal/us/582/15-577/dissent7.html">dissented</a> on this point.)</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=580&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=580&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=580&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ralph Reed, chairman, Faith & Freedom Coalition, pictured at an event in 2014, has spoken in favor of Trinity Lutheran Church.</span>
<span class="attribution"><span class="source">AP Photo/Molly Riley</span></span>
</figcaption>
</figure>
<h2>State bans on funding religion</h2>
<p>So, the Supreme Court now holds a more forgiving position when it comes to separation of church and state. But what about individual states?</p>
<p>Nearly every state has provisions in its constitution that address state support for religion, and many of these provisions (like Missouri’s) are more stringently worded than the federal Establishment Clause. Such a provision is exactly why students in <a href="http://caselaw.findlaw.com/vt-supreme-court/1396322.html">Vermont</a> can’t use state funds to attend religious schools. It’s also, perhaps, why some states have not yet adopted voucher policies: Voucher advocates tend to want religious schools to be eligible, but <a href="http://blogs.edweek.org/edweek/charterschoice/2017/01/why_michigan_doesnt_have_school_vouchers_and_probably_never_will.html">state constitutions often stand in the way</a>.</p>
<p>So, what happens if state constitutional law is more separationist than the Supreme Court’s current reading of the Establishment Clause?</p>
<p>The Supreme Court faced this question once before in <a href="https://www.oyez.org/cases/2003/02-1315">Locke v. Davey</a> (2004). The state of Washington offered “Promise Scholarships” to students meeting certain academic and income criteria, and college student Joshua Davey met those criteria. He lost the scholarship, however, when he declared a major in “pastoral ministries” because Washington understood its state constitution to ban the use of public money to support the pursuit of any degree in “devotional theology.” In other words, Washington was taking a stringent view on separation of church and state.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=524&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=524&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=524&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Joshua Davey speaks to reporters outside the Supreme Court in Washington, D.C. in 2003.</span>
<span class="attribution"><span class="source">AP Photo/Dennis Cook</span></span>
</figcaption>
</figure>
<p>Davey argued that excluding ministry students from the scholarship opportunity was a kind of religious discrimination, violating his right to freely exercise his religion. </p>
<p>The Supreme Court ruled 7 to 2 against Davey. <a href="https://supreme.justia.com/cases/federal/us/540/712/opinion.html">Chief Justice William Rehnquist explained</a> that in a federal system, states should have the right to insist on greater separation of church and state than the federal Establishment Clause requires.</p>
<p>While federal law would not prevent Washington from giving Davey a scholarship, the state could also choose to uphold its stricter separation – without violating the Free Exercise Clause. In other words, just because Washington could fund Davey didn’t mean that it had to.</p>
<h2>Does separationism equal discrimination?</h2>
<p>Since 2004, lower courts have generally interpreted Locke v. Davey to say that states <a href="http://caselaw.findlaw.com/us-1st-circuit/1459164.html">may choose</a> to exclude religious applicants from public funding programs. Trinity Lutheran will change that.</p>
<p>At least six justices agreed that Missouri’s exclusion of the church from its grant program was religious discrimination, pure and simple – and that this trumps the state’s desire to enforce a strict separation of church and state. <a href="https://supreme.justia.com/cases/federal/us/582/15-577/opinion3.html">Justice Roberts</a> determined that the judgment in Locke did not apply here, as the discrimination alleged in the two cases was different. Justices <a href="https://supreme.justia.com/cases/federal/us/582/15-577/concur4.html">Thomas</a> and <a href="https://supreme.justia.com/cases/federal/us/582/15-577/concur5.html">Gorsuch</a> suggested that there was improper religious discrimination in both cases. </p>
<p>Despite their different views of Locke, these justices agreed that the court was required to analyze Missouri’s grant denial under “<a href="https://www.law.cornell.edu/wex/strict_scrutiny">strict scrutiny</a>.” This is the same level of review the court would give to, for instance, an express ban on Muslims entering the country.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In his opinion in the case, Justice Roberts stressed the differences between Locke v. Davey and Trinity Lutheran Church v. Comer.</span>
<span class="attribution"><span class="source">AP Photo/Stephan Savoia</span></span>
</figcaption>
</figure>
<p>This is remarkable. Though Joshua Davey had asked the court to review Washington’s scholarship policy under strict scrutiny, the court declined to do so. In that decision, the justices determined that separation of church and state and religious discrimination were horses of a different color. The Trinity Lutheran decision suggests that, at least in the context of general funding programs, the court will now view separation of church and state – a position the court once wholeheartedly embraced – as a kind of religious discrimination.</p>
<h2>What happens next?</h2>
<p>Standing against this reading of the Trinity Lutheran decision is… well, a footnote. Footnote 3 in Justice Roberts’ opinion reads:</p>
<blockquote>
<p>“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”</p>
</blockquote>
<p>The footnote suggests that the implications of the decision are narrow and shouldn’t be applied to, say, school vouchers. But it’s hard to reconcile the footnote with the seemingly widespread ramifications of the opinion’s text.</p>
<p>Indeed, the day after deciding the Trinity Lutheran case, the Supreme Court <a href="https://www.supremecourt.gov/orders/courtorders/062717zr_6537.pdf">vacated</a> four lower court decisions in <a href="https://www.courts.state.co.us/userfiles/file/Court...Court/Opinions/.../13SC233.pdf">Colorado</a> and <a href="http://www.nmcompcomm.us/nmcases/nmsc/slips/SC34,974.pdf">New Mexico</a> that allowed the exclusion of religious schools from general aid programs. The state courts had based their rulings on separationist language in their state constitutions, but the Supreme Court asked the states to reexamine those decisions in light of Trinity Lutheran. Given the Supreme Court’s treatment of these cases, Footnote 3 may not be much of a limitation after all.</p>
<p>The Colorado and New Mexico courts will have the first shot at deciding what Trinity Lutheran means for school choice. In my view, though, the Trinity Lutheran case signals that the Supreme Court will now generally treat separationist exclusions of religious institutions from government funding as religious discrimination.</p>
<p>If that’s right, we’ll soon have completely flipped the law on government funding of religious schools. Where it had once seemed fairly clear that government money could not be used to support religious instruction at all, it may be only a matter of time before the Supreme Court requires voucher programs to treat religious schools the same as their secular peers.</p><img src="https://counter.theconversation.com/content/80588/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Taylor does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Trinity Lutheran case signals the Supreme Court’s willingness to interpret separation of church and state as religious discrimination. What will this mean for the future of vouchers and school choice?John E. Taylor, Professor of Law, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/553522016-03-11T11:12:39Z2016-03-11T11:12:39ZWhat AI can tell us about the U.S. Supreme Court<figure><img src="https://images.theconversation.com/files/114484/original/image-20160309-13712-1mydjdv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Modeled by artificial intelligence: The Roberts Court, 2010-2016.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Supreme_Court_US_2010.jpg">Steve Petteway, US Supreme Court</a></span></figcaption></figure><p>The lifetime tenure of each of the U.S. Supreme Court’s nine justices means they have long-lasting influences on the country’s affairs. How a justice votes in a case is a reflection of his or her judicial temperament, personal philosophy and political ideology. </p>
<p>Political scientists, lawyers, constitutional scholars and laymen alike closely watch the court. They often attempt to divine what happens during the justices’ secret deliberation sessions and during the process of drafting the opinions that will ultimately be released to the public.</p>
<p>As public attention focuses on the court in the wake of the February death of Associate Justice Antonin Scalia, we at the <a href="http://dac.cs.vt.edu/">Discovery Analytics Center at Virginia Tech</a> offer a way for artificial intelligence to provide some insight. In a <a href="http://people.cs.vt.edu/naren/papers/scipm-aaai06.pdf">recently published paper</a>, we propose a way to model the Supreme Court using computer-based machine learning. </p>
<p>We devised a data-driven framework that <em>learns</em> justices’ judicial preferences and voting behavior; it can be used to answer questions about the justices’ voting behavior. For example: how will the justices vote in a case about a particular topic? Which coalitions are likely to become relevant? Who is likely to be the swing justice in a given case or term?</p>
<p>Our model was able to create a reasonably accurate assessment of justices’ views on issues, predict their alignments on cases and identify who might be a swing vote.</p>
<h2>Figuring out where the justices stand</h2>
<p>Justices take initial stances toward a case by reading prehearing filings. Then they explore issues during a hearing, make decisions in a posthearing meeting among the justices and write their opinions thereafter. </p>
<p>These opinions represent different groups – a unanimous court, a majority of the court, dissents from with the majority decision and even opinions that concur in part and dissent in part. Each opinion can be written by one or more justices, or written by one and joined by others.</p>
<p>As a result, it is challenging to determine the justices’ actual positions on the issues that come before the court. In the past, methods have been devised to assign each justice a numeric score called an “ideal point,” indicating his or her hypothetical position on a spectrum of views on an issue, using <a href="https://www.jstor.org/stable/1962405">news coverage of their nominations</a> or their <a href="http://mqscores.berkeley.edu/media/pa02.pdf">voting records on cases</a>. However, these approaches do not use the rich text resources available in the decisions.</p>
<p>Our model, called the Supreme Court Ideal Point Miner (SCIPM), augments the existing research with information on judicial preferences gleaned from opinion texts. </p>
<h2>Analyzing the text</h2>
<p>The model assumes that each case involves a mixture of several issues or topics, on which justices have distinct views. For example, a case may involve a search that uncovered an illegally owned firearm; any individual justice’s views on the Fourth and Second Amendments may come into conflict with each other. The final opinion that justice writes or joins will reflect aspects of both positions.</p>
<p>Our system looks at the text of the opinions and counts the number of words related to each issue that factors into the decision. It assigns a relative weight to each such issue based on the share of relevant words. For example, words like “search” and “warrant” can suggest a connection to the Fourth Amendment.</p>
<p>By aggregating the analyses of multiple opinions – our research looked at those issued from 2010 to 2014 – the model can tell how strongly each justice feels about an issue. </p>
<p>But it is not capable of determining which direction those feelings go. For that we need to look at the justices’ voting records directly.</p>
<p>Our analysis shows the range of views held by justices on selected issues, as shown below. They range across a spectrum from very liberal (far left) to very conservative (far right).</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=341&fit=crop&dpr=1 600w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=341&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=341&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=428&fit=crop&dpr=1 754w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=428&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=428&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Each horizontal line represents an issue and the dots on the line represents the ideal-point value for the justices. Justices appointed by Republicans are indicated with red dots; blue is for Democrat-appointed justices.</span>
</figcaption>
</figure>
<h2>Finding swing justices</h2>
<p>Our model can also identify the swing justices of the court by looking at how much each justice’s ideal point varies across multiple issues. A justice who is consistently far to one side is less likely to swing than a justice whose votes range across the spectrum.</p>
<p>The model identifies Associate Justice Anthony Kennedy as the justice most likely to swing, followed by Chief Justice John Roberts Jr., because their positions vary more widely across issues than their colleagues. Roberts’ ranking as the second swing justice is also explainable given his (surprising) <a href="http://www.reuters.com/article/us-usa-court-obamacare-idUSKBN0LS0BL20150224">votes to affirm</a> the Patient Protection and Affordable Care Act (“Obamacare”). </p>
<p>This can be validated by observing all cases decided by a margin of 5-4 – the cases where swing justices come most into play. We look at which justices have grouped themselves into those five-vote majorities. The three most frequent coalitions are shown below.</p>
<iframe src="https://datawrapper.dwcdn.net/AhjkI/1/" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="225"></iframe>
<p>Looking at those coalitions, it is clear that, apart from top swing voter Kennedy, justices appointed by Democratic and Republican presidents tend to cluster together in split decisions.</p>
<h2>Looking at individual justices and cases</h2>
<p>An interesting finding of our experiment is the role of Associate Justice Sonia Sotomayor in cases related to the Fourth Amendment, which protects citizens against unreasonable search and seizure. She has a very different ideology on this particular issue compared to her colleagues. This <a href="http://reason.com/blog/2015/01/22/sotomayor-to-justice-department-lawyer-w">observation</a> can be validated with <a href="https://epic.org/privacy/sotomayor/">other articles</a> that <a href="http://www.huffingtonpost.com/evan-bernick/justice-sotomayor_b_6534970.html">report</a> her disagreement with her colleagues on this particular issue. </p>
<p>What we learn from the model can be used both to describe the decision process for an individual case and also to make predictions about future cases. Its accuracy is 79.46 percent, which we calculate by dividing into five sections the case history from 2010 to 2014 – where decisions and opinion arguments are available. We teach the model from four of the five parts, and evaluate its predictions on the fifth part against what actually happened.</p>
<p>Our model also reflects the reality that some justices are more frequent collaborators than others, even within their respective political wings. For example, Justice Roberts and Justice Alito generally collaborate more frequently than others.</p>
<p>Future research we have planned includes evaluating public response to decisions, such as commentary on social media, to learn what types of cases people are most attracted to; expanding the data in the model to cover more decisions over more time; and using text transcripts of the oral arguments to attempt to predict outcomes of cases that have not yet been decided.</p><img src="https://counter.theconversation.com/content/55352/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Our data-driven model was able to create a reasonably accurate assessment of justices’ views on issues, predict their alignments on cases and identify who might be a swing vote.Mohammad Raihanul Islam, Ph.D. student at Discovery Analytics Center, Virginia TechK.S.M. Tozammel Hossain, Ph.D. student at Discovery Analytics Center, Virginia TechSiddharth Krishnan, Ph.D. student at Discovery Analytics Center, Virginia TechLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/328542014-11-11T10:47:44Z2014-11-11T10:47:44ZBlame government for political gridlock? Try looking closer to home<p>Now that Capitol Hill has turned red, the debate has turned to whether this will increase gridlock or not. </p>
<p>Certainly from the perspective of the President it will. He can expect vastly more difficulty doing those things, in particular, that depended on the lone scrutiny of the Senate, such as confirming judicial appointees.</p>
<p>From the Republicans’ perspective there may be a reduction in gridlock. The impediments to the implementation of their policy agenda have been reduced – albeit not wholly eliminated thanks to the power of the presidential veto. </p>
<p>As for the perspective of We the People, it seems that we are unable to make a consistent collective decision about whose party program we want to enact into law. After all, we – our divided and polarized society – just elected all these Republican senators. We have only ourselves to blame if they just make matters worse. </p>
<p>And perhaps those of us on the left, who would be expected to support the president and bemoan the Republican Senate, would prefer a little bit more gridlock. Two days after the midterm elections a one-page story in the Wall Street Journal announced that President Obama and Senator McConnell expected to be able to work together on at least one thing: the reauthorization of more military force in the Middle East. </p>
<p>Yet politically engaged citizens - from both sides of the partisan fence - often bemoan gridlock in the American government. The political system, as they see it, simply makes it too hard to get anything done.</p>
<h2>One gridlock narrative</h2>
<p>Consider the outlook for a left-leaning advocate of health care reform. The Democrats first tried to do something about this back in the Clinton administration, but were rebuffed by Republicans in Congress. </p>
<p>Then, President Obama managed to enact the Affordable Care Act, but was forced by opposition to include a number of compromises that undermined the goal of making health care accessible to all Americans. </p>
<p>First, single-payer health care was off the table. This meant government could not act as the sole primary insurer, as is the case in so many of our other liberal democracies such as Canada and the UK. </p>
<p>Shortly thereafter the “public option,” a provision that could have allowed citizens to select a government insurer in competition with private insurers, was also dropped. </p>
<p>Even when the President managed to push the bill, limping and bleeding from countless wounds, through Congress, there was one branch of the federal government that had not yet had a crack at it. Accordingly, opponents of the legislation immediately started filing lawsuit after lawsuit. </p>
<p>First, they challenged the individual mandate, the requirement that people actually get health insurance. This aspect of the policy was designed to eliminate an economic problem called “adverse selection,” which is what happens when only the sickest and most expensive to insure actually buy policies. </p>
<p>Individual mandate was attacked on the grounds that the federal government lacked the authority to make people buy health insurance. The challengers <a href="http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf">lost that one</a>, if barely, thanks to a surprise vote by Republican-appointed Chief Justice John Roberts. </p>
<p>The bill was less lucky in a challenge brought in the same case against the Medicaid expansion, which provided states with funding to expand health coverage for the poor in exchange for requiring them to do so. </p>
<p>The Supreme Court, in a party-line vote, <a href="http://kff.org/health-reform/issue-brief/a-guide-to-the-supreme-courts-decision/">held</a> that Congress lacked the authority to do that, permitting states to refuse the money and the expansion and undermining the administration’s attempt to create a uniform national system of health care access. </p>
<p>Next they went after the employer requirements, and we now have yet another party-line Supreme Court ruling that it violates the religious liberty of a crafting conglomerate named <a href="http://www.npr.org/2014/03/25/294385167/birth-control-mandate-goes-under-high-court-microscope">Hobby Lobby</a> to require it to pay the premiums for an insurance plan that allows the women they employ to acquire contraception. </p>
<p>To our hypothetical left-leaning health care activist, all this might look like an indictment of our system of government. Political scientists speak of “veto points”, the places in our policymaking structure at which an initiative can be brought to a screeching halt. </p>
<p>And the US Constitution does have rather a lot of them, located everywhere from Congressional committees to the Oval Office, the Supreme Court, and the bureaucracy. </p>
<h2>Not always greener in other political systems</h2>
<p>By contrast, parliamentary systems like those of the UK, in which the legislative and executive powers are controlled by the same party, seem to supply much more policy flexibility. Our government seems to be too gridlocked to actually pass needed reforms.</p>
<p>Some, however, disagree with this diagnosis. They point out, for example, that Democrats in Congress did as much as the Republicans did to kill the Clinton healthcare bill. </p>
<p>European parliamentary systems are also plagued by gridlock, particularly in multi-party states where no party or coalition can get a working majority, as happened, for example, last spring in Italy. Typically in parliamentary systems this gets resolved by the blunt instrument of holding a new election. </p>
<p>The culprit of our current gridlock, on this account, is not the structure of our government but the polarization of our ideologies. </p>
<p>Moreover, the American government seems to have produced a number of staggeringly ambitious policy initiatives through its history: consider the Louisiana Purchase, the New Deal, the War on Poverty, the War on Drugs, the War on Terror – to say nothing of the numerous actual wars we’ve waged over the centuries. </p>
<h2>Too much government?</h2>
<p>And for all those who decry the way that gridlock keeps the government from getting anything done, there seem to be just as many who decry the rise of uncontrollable government power. </p>
<p>For example, many are of the opinion that the executive branch has arrogated excessive power to itself and located it in democratically unaccountable agencies which do everything from pervasive industrial regulation to operating secret domestic spying programs. </p>
<p>What all this suggests is that government is a double-edged sword. There is, doubtless, a bare minimum of government capacity that a state needs to survive. </p>
<p>A state that so badly lacks the tools of governing that it cannot provide basic public goods like military defense, or a rudimentary legal system, to its people is not long for this earth – as Francis Fukuyama <a href="http://mobile.nytimes.com/2014/10/05/opinion/sunday/thomas-l-friedman-isis-boko-haram-and-batman.html?referrer=">was recently quoted</a> as suggesting with respect to ISIS. </p>
<p>The Framers of the US Constitution famously thought that the initial Articles of Confederation drafted in Philadelphia in 1776-7 deprived the government of those minimum capacities through, for example, its failure to make any provision for federal taxation. </p>
<p>Beyond that minimum, we can tinker with the structure and procedure of government, and, in doing so, either increase its capacity to enact good things (like laws to improve public access to health care), but only at the price of also increasing its capacity to enact bad things (like regulations to create secret “no-fly” lists and a pariah-class of American travelers). </p>
<h2>Time for a bit of self-criticism</h2>
<p>It seems to me that the real answer to both gridlock and governmental self-aggrandization lies in the relationship between the people and their state. For both of those problems are, in part, what economists call “principal-agent problems” – only if the people are unable, or unwilling, to adequately control their state will it be able to enact bad laws and unable to enact good ones. </p>
<p>The right institutional prescription for our government, then, is for structures to promote greater democratic accountability, including structures to give individual voices a real chance of making a political difference. </p>
<p>Proposals being floated around academia, such as for various kinds of citizen juries selected to deliberate on public policy, seem promising in this respect.</p>
<p>Of course, greater democratic accountability only works if the people are both competent and well-disposed. Americans must learn how to distinguish good policies from bad, and must develop the virtuous dispositions necessary to, for example, protect minority rights and resist the urge to hysterical scapegoating of the sort that was directed against Muslims after 9-11. </p>
<p>We must learn to critically evaluate the arguments of our media and our leaders, and to enter politics with open-mindedness rather than blind ideological affiliation. </p>
<p>The government can help in these tasks, of course, such as through education, but the point remains: reforms to the government will do us no good unless they also come paired with reforms to ourselves.</p><img src="https://counter.theconversation.com/content/32854/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Gowder does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Now that Capitol Hill has turned red, the debate has turned to whether this will increase gridlock or not. Certainly from the perspective of the President it will. He can expect vastly more difficulty…Paul Gowder, Associate Professor, University of IowaLicensed as Creative Commons – attribution, no derivatives.