I don’t have any substantive comment on the Federalism brief filed in the DOMA case by several Volokh conspirators. Nor do I have any substantive comments on Judge McConnell’s recent WSJ op-ed supporting it. This is not an issue I have studied closely, so I really haven’t formed an opinion here. I do wish to raise one point that stuck out in Ed Whelan’s criticism of McConnell’s op-ed.
Judge McConnell wrote towards the end of his piece:
By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer—and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation’s culture wars.
Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides. In this instance, modesty requires no more than that the justices follow the technicalities of the law.
This portion really stuck out for me. There is nothing new with targeting and tailoring legal arguments for certain swing justices. I wrote an entire article suggesting how Justice Thomas could seek to use Privileges or Immunities in McDonald, based on his previous writings. For the ACA case, one lawyer told me that Paul Clement’s brief in the mandate case was written in the “voice of Anthony Kennedy.” The Solicitor General tailored his argument for John Roberts, not Anthony Kennedy (see discussion in my book).
What does bother me is when a Justice is targeted not with legal arguments, but instead a comment about how that Justice’s vote will impact the Court as an institution in our society.
This is behavior we saw all too often last year in the challenge to the ACA. I chronicle in my book how countless pundits wrote that if John Roberts votes to strike down the ACA, it would tarnish the Court’s legitimacy. Jeff Rosen was perhaps the most prominent among them. (I go into his back-and-forth with Barnett in some detail in my book).
What Judge McConnell did here is almost the exact mirror image of what Rosen did. If Roberts (along with Breyer or Kennedy) take the path of modesty, and avoid the constitutional issue, it will improve the court’s legitimacy, and have a “calming influence on the nation’s culture wars.” Forget the legal merits of issues of standing, equal protection, or due process. The Court should look at their role in society as an institution enmeshed in a culture war.
Whelan writes:
A careful parsing of McConnell’s argument reveals that he actually avoids embracing the federalism argument that he nonetheless urges the Court to accept. He says only that “the legal question is close” and that “the court could take [that] path.” In other words, his incoherent longing for the Court somehow to avoid “setting a precedent” leads him to encourage the Court to strike down DOMAwhether or not it’s unconstitutional.
While I find Judge McConnell’s comment more satisfying than Rosen’s slight, I am still uncomfortable with what I see as a growing trend to hang the Court’s legitimacy over the Justices to get them to vote a certain way. Likewise, Jack Balkin’s arguments from the future hinge on forcing a Justice how they’ll be perceived by some future adoring public, the legal arguments be damned. Even a recent piece by Ken Jost calling on RBG to retire cited concerns about her legacy. I think these arguments are not productive, and feed into negative images of the Justices as political actors.
Ed Whelan is (as usual) more blunt.
The way that Michael frames his response (“where we stand in this litigation”) signals rather clearly that, instead of providing his best constitutional analysis, he is recasting his views for tactical purposes—to invite the Court to take a wrong path that is (supposedly) not as bad as another wrong path. Alas, I’ve heard similar explanations from other folks in these cases who have decided to advance unsound arguments.
I’d respectfully suggest that law professors stick to offering their best reading of the law and stop trying to game the justices. At the very least, if Michael doesn’t really believe the arguments he has set forth (and note again how he subtly distances himself from them), he should have made that plain.
I do not endorse much of Ed’s rhetoric, but I see merit in his comment about trying to game the justices. When I read Judge McConnell’s op-ed, that was my first thought, and it gave me flash-backs to Rosen’s pieces last year. I don’t care for it in either circumstances.
Briefs and arguments from scholars trying to persuade the justices should focus on the law. Let’s not add to the politicization of the court. The politicians are pretty good at that themselves (see comments from President Obama shortly after the health care cases were argued).