By David B. Rivkin Jr. and Andrew M. Grossman

July 23, 2021, in the Wall Street Journal

As liberals lick their wounds from the recent Supreme Court term, a small but noisy band on the right has launched a dissent against the conservative legal movement that produced the court’s majority. They want a new jurisprudence of “moral substance” that elevates conservative results over legalistic or procedural questions such as individual rights, limited government and separation of powers. Some advocates call this idea “common good originalism,” but it isn’t originalism. It’s no different from the raw-power judicial activism conservatives have railed against for decades as unaccountable, unwise and dangerous.

The “common good” pitch arrived nearly full-born in a 2020 essay by Harvard law professor Adrian Vermeule. A brilliant eccentric, Mr. Vermeule is best known for his advocacy of unchecked presidential and administrative supremacy and for the incorporation of Catholicism into civil law, which he calls integralism and critics call theocracy.

Mr. Vermeule is skeptical of law, restraints on government and the Enlightenment generally. He describes originalism as “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” To that end, he would give less emphasis to “particular written instruments” like the Constitution and more to “moral principles that conduce to the common good.” A web link to Thomas Aquinas ’ “Summa Theologica” suggests what he has in mind.

A handful of populist conservatives— Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker —took up the “common good” banner in an essay published in March. Frustrated that conservatives can’t seem to win the culture war no matter how many judges they appoint, they fault the conservative justices’ legal formalism as morally denuded and counterproductive to conservative ends. But they part with Mr. Vermeule by avoiding sectarianism in favor of vague references to “moral truth” and in branding their enterprise as a variant of originalism, one centered on the Constitution’s preamble and its reference to “the general welfare.”

As with liberal talk about the “living Constitution,” the high-minded rhetoric conceals an assertion of unbridled power. Liberals, the quartet justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.

That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.

There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”

One might excuse these objections if a results-oriented jurisprudence promised some practical benefit, but it doesn’t. The success of the conservative legal movement is evident in the five Supreme Court justices, and scores of lower-court judges, who have described themselves as originalists. No jurist to date has claimed the “common good” mantle.

And originalism delivers results. In the past several months, self-consciously originalist decisions have fortified property rights, limited unaccountable bureaucracy, strengthened protections for freedom of association, recognized young adults’ Second Amendment rights, and expanded the freedom of religious practice. What is to be gained from abandoning originalism now, at the apex (at least to date) of its influence?

The critics’ main answer is to assail the court’s decision in Bostock v. Clayton County (2020), which interpreted the Civil Rights Act of 1964 to permit employment-discrimination claims based on sexual orientation or transgender status. Yet the Bostock dissenters, led by Justice Samuel Alito, faulted Justice Neil Gorsuch’s decision not for its embrace of textualism but for doing textualism badly. As Ed Whalen of the Ethics & Public Policy Center observed: “A bungling carpenter should not lead you to condemn the craft of carpentry.”

The high court in recent years has moved away from approaches that often sacrificed the principles of limited government to popular fashion or expert opinion. Fostering division among conservatives threatens that project at a time of special peril, as progressives march through the institutions of power. The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law. If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached.

For his part, Mr. Vermeule takes inspiration from an 1892 encyclical in which Pope Leo XIII “urged French Catholics to rally to the Third French Republic in order to transform it from within.” He imagines American Catholics will eventually co-opt “executive-type bureaucracies” to effect a “restoration of Christendom.” Such a ralliement seems far less likely in the U.S. than in France, but it failed there too.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/supreme-court-conservative-liberal-originalist-vermeule-11627046671

Ideological lines turn out to be more fluid than partisans had imagined when Barrett was named.

By David B. Rivkin Jr. and Andrew M. Grossman

July 1, 2021, in the Wall Street Journal

‘Every time a new justice comes to the Supreme Court,” Justice Byron White used to say, “it’s a different court.” Activists expected that to be especially true when Justice Amy Coney Barrett arrived last year. The leftist pressure group Demand Justice denounced the nominee to succeed Justice Ruth Bader Ginsburg as “a far-right, activist judge whose confirmation would threaten to upend the lives of millions of Americans” and predicted her vote would doom ObamaCare.

Reality is seldom so simplistic. ObamaCare survived California v. Texas with a 7-2 majority, including Justice Barrett. Of the 65 cases the court reviewed this term, it decided only nine by 6-3 votes along conventional ideological lines, and only three of those could fairly be described as involving hot-button political controversies. One was Cedar Point Nursery v. Hassid, which held that a California labor regulation requiring agricultural employers to allow labor organizers on their property constituted “a per se physical taking” for which the employers were entitled to just compensation. The others were decided on Thursday as the term ended: Brnovich v. Democratic National Committee on election regulation and Americans for Prosperity Foundation v. Bonta on forced disclosure of nonprofit donors.

Yet it’s true the court has entered a new phase—one characterized by modest conservative victories, unpredictable alignments of justices, and surprising unanimous judgments. The driving forces are doctrinal differences among the court’s six conservatives, Chief Justice John Roberts’s preference for incremental rather than sweeping change, and the embrace across ideological lines of the principle that judges should follow the language of the law. As Justice Elena Kagan said in 2015, “We’re all textualists now.”

The same day the court ruled in favor of ObamaCare, it unanimously held that Philadelphia had violated the First Amendment by decreeing that a Catholic foster-care agency couldn’t operate in the city unless it certified gay couples. The deeper issue was the fate of Employment Division v. Smith (1990), a landmark decision holding that generally applicable laws burdening religious practice don’t violate free exercise, no matter that the burden may be great and the government’s interest slight.

In Fulton v. Philadelphia, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to overturn Smith. Chief Justice Roberts’s opinion for the other six justices didn’t go that far, but it remade the doctrine by holding that religious conduct must be treated no worse than equivalent secular conduct. That means a law isn’t “generally applicable” under Smith if it permits secular exceptions.

Fulton is a victory mainly for the chief justice’s incrementalism, which has its virtues—among them that it makes the court’s rulings easier for the losing side to accept. It’s no small matter that the court was able to rule unanimously for religious freedom in a case widely expected to be contentious. At the same time, Fulton makes Smith easier to overturn by weakening its rationale and reliance on its sweeping rule. In a concurrence, Justices Barrett and Brett Kavanaugh suggested they are open to doing so.

Fulton wasn’t the only surprising show of unanimity. In Caniglia v. Strom, all nine justices rejected a “community caretaking” exception to the Fourth Amendment’s warrant requirements for home searches—a case that might have splintered on concerns about gun violence or the needs of law enforcement. Twice the court unanimously overruled immigration decisions from the Ninth U.S. Circuit Court of Appeals favoring aliens; one of those decisions was written by Justice Sonia Sotomayor.

Other unanimous decisions rejected expansion of recent sentencing reductions for crack offenders, authorized money damages against state officials who violate the Religious Freedom Restoration Act, limited human-rights suits premised on foreign conduct, recognized First Amendment protection for a public-school student’s out-of-school speech, and declined to tighten jurisdictional limits on suits against major corporations. (So much for claims that the Roberts Court is in thrall to big business.)

Behind much of this agreement is the court’s convergence on textualism, the method of interpretation Justice Antonin Scalia advocated as a corrective to judicial policy making. The two unanimous immigration cases, as well as the crack-sentencing one, elevated clear statutory text over policy arguments. Likely the court’s outnumbered liberals have come to realize that only textualist reasoning can achieve a majority on today’s court.

There’s an asymmetry to this. Liberal justices’ methodological flexibility enables them to vote strategically with whichever conservative colleagues favor the most congenial result. Conservatives justices tend to be exacting on questions of text and doctrine, which can split their votes even when they agree on central issues or approach. Yet political conservatives can take heart from the court’s actions this term—and look optimistically toward the next. The justices agreed to hear cases in the 2021-22 term that give them opportunities to scale back precedents on abortion and expand them on gun rights.

The clearest area of positive reform this term concerns Congress’s attempts to shield executive-branch agencies from presidential control and democratic accountability. In U.S. v. Arthrex, the court found a constitutional violation in a scheme authorizing patent judges to render decisions free from review by the head of the Patent and Trademark Office, an officer subject to presidential oversight. In Collins v. Yellen, it held unconstitutional a restriction on presidential removal of the head of the Federal Housing Finance Agency.

The court invalidated only the offensive restrictions. But that limited remedy overcomes the principal objection—“widespread disruption”—to restoring presidential control by overruling the entire line of cases that authorize the headless “fourth branch” of government. That has been a central goal of the conservative legal movement since the 1970s.

To be sure, incrementalism can go too far. Some of the chief justice’s opinions, including Arthrex, are so carefully hedged that the rules they announce are little more than that one party prevailed and the other lost. A similar complaint can be leveled at Justice Stephen Breyer’s 8-1 opinion in the student-speech case Mahanoy Area School District v. B.L., which provides little guidance for lower courts or school administrators. Justice Alito offered more in a concurrence, but only Justice Gorsuch joined it. Likewise, Justice Breyer’s opinion in the ObamaCare case declined to rule on the merits, holding instead the challenges lacked standing yet without addressing their central argument to the contrary.

All these opinions were assigned by the chief justice and joined in full by his most junior colleagues, Justices Kavanaugh and Barrett. They are rightly concerned about overreaching and appear resolved in each case to decide no more than need be decided. Judicial restraint is essential and admirable, but clarity about the law is necessary for the rule of law to function. As the new justices gain confidence, the court should strike a truer balance.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/a-cautiously-conservative-supreme-court-11625164373

By David B. Rivkin, Jr., and Jason Snead

June 3, 2021, in the Wall Street Journal

President Biden and his media partisans are stepping up the pressure campaign on Joe Manchin. The West Virginia senator is the only Democrat in the upper chamber who hasn’t signed on to H.R.1, styled the For the People Act, an unprecedented federal takeover of U.S. election laws that the House passed in March and that the Senate plans to consider this month. The bill’s supporters describe it as a vital safeguard of democracy, but it’s the opposite: If enacted it would destroy the Constitution’s careful balance of federal and state powers, taking common election safeguards along with it.

H.R.1 plainly exceeds Congress’s power to regulate presidential elections, as we argued in these pages in February. That’s only the start of its constitutional infirmities.

The primary asserted constitutional basis of H.R.1 is Article I’s Elections Clause, which authorizes state legislatures to establish the “times, places and manner” of congressional elections, while providing that “Congress may at any time by law make or alter such regulations.” In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court held that several state election-integrity measures were invalid because federal law pre-empted them.

Yet H.R.1’s sponsors fail to recognize that the Elections Clause limits Congress’s authority to time, place and manner. “Prescribing voting qualifications,” Justice Antonin Scalia wrote for the court in 2013, “forms no part of the power to be conferred upon the national government by the Elections Clause.” Article I’s Qualifications Clause provides that “the electors”—that is, voters—“in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” Determining those qualifications is up to the states, except where the Constitution says otherwise—for instance in the 19th and 26th amendment, enfranchising women and 18-year-olds, respectively.

Yet H.R.1 purports to establish federal voter qualifications for congressional elections. A prime example is the section mandating “democracy restoration”—a euphemism for enfranchising felons except during imprisonment, a decision the Constitution leaves to the states. The bill’s provisions governing internet voter registration, automatic registration and same-day registration are also suspect. Justice Clarence Thomas, dissenting in Inter Tribal Council, argued that registration is a matter of qualifications, not manner. Scalia and the majority didn’t disagree, so that issue remains open for adjudication.

Other provisions would intrude into states’ efforts to ensure the integrity of elections—such a fundamental aspect of sovereignty that erasing it extinguishes states’ status as coequal sovereigns. H.R.1 would require states to accept a voter’s sworn statement attesting to his identity and eligibility in lieu of any other identification requirement. The Inter Tribal Council majority held that “the power to establish voting requirements is of little value without the power to enforce those requirements” and stated that a statute precluding “a State from obtaining the information necessary to enforce its voter qualifications” would “raise serious constitutional doubts.”

The constitutional problems with H.R.1 are more fundamental than its specific provisions. One arises from their sheer magnitude, which would effectively create a comprehensive federal elections code. The Constitution’s framers and early commentators were united in their rejection of a congressional takeover of federal elections.

Federalist 59 affirmed that the Elections Clause granted power, “in the first instance, to the local administrations” and merely “reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.” Justice Joseph Story’s “Commentaries on the Constitution of the United States” (1833) noted that Congress would pass election legislation only if “there has been some extraordinary abuse” and would provide merely “a check upon state legislation.”

H.R.1’s supporters claim the bill provides such a check against a supposed rash of “voter suppression” measures. That claim is flimsy given historic turnout and diversity in recent elections, as well as data showing that voter-ID laws don’t depress turnout. H.R.1 features provisions Democrats have long favored—further evidence that it isn’t a response to a new crisis.

H.R.1’s extreme federal election takeover raises the question of how far Congress can go to oust states from the entire field. Federalist 59 describes Congress’s role as regulating elections “in the last resort”; H.R.1 does so as the first resort. The Supreme Court has never had to address the outer limits of Congress’s power because nothing like H.R.1 has ever passed. But if it does, its comprehensiveness should be its undoing.

There’s another problem. H.R.1 would also compel states to administer and fund the new election regime through state-established and funded redistricting commissions and online registration schemes. Such requirements violate the Supreme Court’s anticommandeering and anticoercion doctrines, which prohibit Congress from mandating that states do its bidding or unduly burdening those that refuse.

Some courts have found the anticommandeering doctrine inapplicable to election laws, reasoning that Congress’s Elections Clause power authorizes it to regulate federal elections. That’s a non sequitur. The doctrine applies when Congress has constitutional authority to regulate the matter directly; it condemns the indirect manner of dictating “what a state legislature may and may not do,” as Justice Samuel Alito put it for the court in Murphy v. NCAA (2018). The high court has never endorsed a different view, and in Inter Tribal Council, it stated that the Elections Clause “is none other than the power to pre-empt”—implying it is not the power to commandeer.

The anticoercion doctrine also prohibits H.R.1’s proposed federal takeover of state authority, and no court has denied that it applies in the electoral context. As Chief Justice John Roberts stated in NFIB v. Sebelius (2012), the anticoercion doctrine requires Congress to afford states “a legitimate choice whether to accept . . . federal conditions” in choosing whether to administer a federal program.

H.R.1 would leave no choice at all. It isn’t a cooperative federalism program giving states benefits in exchange for implementing federal laws. Instead, it would force states to do what Congress can’t: administer national elections in every state.

The constitutional problems with H.R.1 are legion, and no new federal election legislation is necessary. States are exercising their constitutional authority, revising election laws to balance the imperatives of voter access and election integrity. Mr. Manchin should stick to his guns.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Snead is executive director of the Honest Elections Project.

Source: https://www.wsj.com/articles/h-r-1-would-steamroll-the-constitution-11622737590

28 May 2021, published in Real Clear Politics

To the U.S. Commission on International Religious Freedom

Dear Chair Bhargava, Vice Chair Perkins, and Commissioners Bauer, Carr, Davie, Maenza, Moore, and Turkel:

The Prosecutor General of Finland has undertaken criminal prosecutions that will compel Finland’s clergy and lay religious believers to choose between prison and abandoning teachings of their various faiths.

First, Prosecutor General Raija Toiviainen has charged Dr. Päivi Räsänen, a Member of the Finland’s Parliament and former Finnish Minister of the Interior, with three counts of “ethnic agitation” for peacefully expressing her views on marriage and sexuality. The charges against Dr. Räsänen stem from her authorship of a 2004 booklet entitled, Male and Female He Created Them: Homosexual Relationships Challenge the Christian Concept of Humanity, published by the Luther Foundation. In the booklet, Dr. Räsänen argues that homosexual activity should be recognized by the church as sinful based on the teachings of the Hebrew Bible and Christian scripture.

Second, the Prosecutor General has charged the Bishop-Elect of the Evangelical Lutheran Mission Diocese of Finland, Rev. Dr. Juhana Pohjola, with one count of ethnic agitation for publishing Dr. Räsänen’s booklet.

The Prosecutor General’s pursuit of these charges against a prominent legislator and bishop sends an unmistakable message to Finns of every rank and station: no one who holds to the traditional teachings of Judaism, Christianity, Islam, and several other religions on questions of marriage and sexual morality will be safe from state harassment should they, like Bishop Pohjola and Dr. Räsänen, express their moral and religious convictions.

These prosecutions constitute serious human rights abuses. They violate Article 18 of the Universal Declaration of Human Rights, Article 18 of the International Covenant on Civil and Political Rights, and Article 10 of the EU Charter of Fundamental Rights, all of which affirm the right of every human “to manifest his religion or belief in teaching.” They likewise violate multiple provisions of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, including its affirmation of the right “[t]o write, issue and disseminate relevant publications” expressing one’s religious beliefs.

These prosecutions cannot be understood as mundane applications of a European-style “hate speech” law. No reasonable balance of the goods of public order, civil equality, and religious liberty can ever support this suppression of the right to believe and express one’s beliefs. The prosecutions are straightforward acts of oppression.

To uphold the internationally recognized rights of freedom of expression and religious liberty, the United States must now respond to the abuses in Finland as it has recently responded to other violations of religious liberty in non-western nations.

For example, in 2020, the Department of State designated the chief of the Xiamen Public Security Bureau as a human rights abuser under Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act of 2020, for his involvement in the detention and interrogation of Falun Gong practitioners for practicing their beliefs. In 2020 and 2021, the Departments of Treasury and State likewise designated multiple Chinese officials in Xinjiang for their roles in the detention of Uyghur Muslims. Prosecutor General Toiviainen’s status as a European official must not shield her from sanctions for her abuse of traditionalist Christians in Finland.

We therefore respectfully request that USCIRF call on U.S. Secretary of State Anthony Blinken to designate Prosecutor General Toiviainen under Section 7031(c), which requires the Secretary to deny visas to officials (and their family members) who have engaged in “a gross violation of human rights.”

We further request that USCIRF call on U.S. Secretary of Treasury Janet Yellen to designate Prosecutor General Toiviainen under the Global Magnitsky Act and related statutes. Executive Order 13818 empowers the Secretary to designate and impose economic sanctions on individuals determined “to be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse.” Prosecutor General Toiviainen and any line prosecutors who choose to assist her plainly meet this description.

Finally, we note that there is no statute of limitations on human rights violations of this magnitude. Should calls by USCIRF to designate and sanction Prosecutor General Toiviainen and her accomplices fall on deaf ears, we respectfully request that USCIRF not simply let the matter drop. We ask you to continue to press our government to use its legal powers and fulfill its duties under U.S. law to aid victims of human rights violations, including Dr. Päivi Räsänen and Bishop Juhana Pohjola. We further ask USCIRF to take account of the violation of human rights by the Finnish Prosecutor General in its assessment of the state of religious freedom in nations around the globe in its Annual Report.

Peter Berkowitz, Ted and Dianne Taube Senior Fellow, Hoover Institution, Stanford University

Keegan Callanan, Associate Professor of Political Science, Middlebury College

Carlos Eire, T. L. Riggs Professor of History and Religious Studies, Yale University

Robert P. George, McCormick Professor of Jurisprudence, Director of the James Madison Program in American Ideals and Institutions, Princeton University

Mary Ann Glendon, Learned Hand Professor of Law Emerita, Harvard University

Sergiu Klainerman, Eugene Higgins Professor of Mathematics, Princeton University

John B. Londregan, Professor of Politics and International Affairs, Princeton University

Jacqueline C. Rivers, Lecturer in African & African-American Studies, Harvard University, Executive Director, Seymour Institute for Black Church and Policy Studies

David Rivkin, Partner, BakerHostetler, Washington, DC

Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard University

(Institutional affiliations are for identification.)

Source: https://www.realclearpolitics.com/articles/2021/05/28/a_letter_to_the_us_commission_on_international_religious_freedom__145839.html

By David B. Rivkin Jr. and Andrew M. Grossman

April 29, 2021, in the Wall Street Journal

The “Trump judiciary” is corrupt, Sen. Sheldon Whitehouse claims, and the remedy is to scrutinize parties presenting legal arguments in friend-of-the-court, or amicus, briefs. The proposal wouldn’t make the courts any cleaner, but it would violate the First Amendment. It is also part and parcel of the broader Democrat-driven effort to politicize and intimidate the judiciary.

Amicus briefs are a fixture of litigation, particularly in appellate cases presenting broad and important legal questions. While the parties to a case present their positions in their own briefings, amici inform the courts with additional perspectives and analysis. Typical amicus briefs address the history of a constitutional provision or statute, dive deep into legal doctrine and precedent, or argue about the practical consequences of approaches the court might take. Many are filed by, or on behalf of, legal scholars. At the Supreme Court, the justices often question lawyers on points raised by amici, and they occasionally engage amicus-brief arguments in written opinions.

Where others see public-spirited legal advocacy, Mr. Whitehouse sees a plot. In a 2019 amicus brief of his own, the senator, joined by four Senate Democratic colleagues, denounced amici supporting a gun owner denied the right to transport his firearm as “marionettes controlled by a puppetmaster” as part of a “project” in partnership with the court itself to “thwart gun-safety regulations.” Amicus briefs, the senator asserted in his own, are driving a “pattern of outcomes” in which “corporate and Republican political interests prevailed.”

“The Supreme Court is not well,” the brief concluded ominously. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ”

Mr. Whitehouse expanded on the point in a 2020 screed co-authored with Sens. Chuck Schumer and Debbie Stabenow, titled “Captured Courts.” It contends that a “network” centered on the Federalist Society—which doesn’t file amicus briefs or even take positions on cases or issues—is using such briefs “to inject its boundary-pushing theories directly into Supreme Court jurisprudence.”

The senator has introduced legislation, the Assessing Monetary Influence in the Courts of the United States Act, that would require any organization filing three or more amicus briefs a year to register with the government and disclose the identities of those who worked on the brief and of its significant donors, even those who didn’t seek to fund any particular brief. In February Mr. Whitehouse wrote a letter to the Judicial Conference Committee on Rules of Practice and Procedure, urging it to adopt the same approach through court rules.

Mr. Whitehouse’s claims of corruption are frivolous. It’s not as if there are hundred-dollar bills tucked between the pages of the PDFs. And how exactly are amici supposed to be influencing judges other than by making persuasive legal arguments? The common complaint from the bench is that too many amicus briefs are useless because they merely restate the parties’ arguments or make an empty show of support.

The courts, unlike politicians, decide cases under the law and have to show their work. So while an amicus’s argumentation can be persuasive, its support for one party or the other carries little weight. (Some amicus briefs don’t even take a position on which party should prevail.) If the courts were counting noses, the support of the Chamber of Commerce and a half-dozen other business groups should have swung things for Ford Motor Co. in the big personal-jurisdiction case the Supreme Court decided last month. But Ford lost unanimously. Federal judges, with life tenure, don’t have a campaign on the horizon or a constituency to please.

This isn’t the first time politicians have sought to compel disfavored organizations to disclose their associations. In NAACP v. Alabama (1958), the Supreme Court turned back the state’s demand that the civil-rights organization turn over its membership list. The justices recognized that the First Amendment protects citizens’ right to join together to advance beliefs and ideas and that “privacy in group association” can be essential to such advocacy, “particularly where a group espouses dissident beliefs.” The court has since consistently subjected disclosure requirements implicating associational rights to “exacting scrutiny,” requiring that disclosure further an important governmental interest like combating fraud or corruption or preserving election integrity.

The courts already require amici to disclose whether a party to the case wrote its briefs or made any contributions intended to fund them, and those requirements further the courts’ interests in preventing parties to a case from using amicus briefs as supplements to their own briefing. By contrast, donors who make general contributions to an organization—whether the Chamber of Commerce or the NAACP Legal Defense and Educational Fund—aren’t putting themselves before the court. Whether an argument presented by an amicus sinks or swims turns on its merit, not who contributed to its filer’s operating expenses. Perversely, Mr. Whitehouse’s proposal would cement into law the opposite presumption, with predictably corrosive consequences for the public’s view of the judiciary and the law.

That is the objective. With a conservative majority on the Supreme Court, and many originalist and textualist judges now serving on courts of appeals, Mr. Whitehouse understands that the policy-driven mode of judging that underpins so many progressive legal victories is on the wane. So he spelled out a new strategy in “Captured Courts”: attack the conservative legal movement and tar the judges who share its principles with made-up claims of corruption. Donor disclosure is the fodder for the attacks.

The damage to Americans’ freedom would be substantial. Organizations advocating on all sides of controversial issues would be forced to publicize their supporters, even ones who may disagree with those particular briefs and positions. They would be targeted for harassment, as practically anyone taking a controversial stand today is, and many would curtail their associations with groups that file amicus briefs.

The endgame, per the senator, is to dry up support for what he regards as “unpopular and self-serving positions.” The First Amendment exists precisely to protect the right to take unpopular positions.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/sheldon-whitehouse-is-no-friend-of-the-courts-11619713971

By David B. Rivkin Jr. and Andrew M. Grossman

Nov. 6, 2020, in the Wall Street Journal

Whoever first quipped “It’s all over but the counting” forgot about the lawyers. Over the past year, Democrats and their allies marched through state after state in an unprecedented legal campaign to upend longstanding rules of election administration. The result is more uncertainty than ever over the basic rules of voting, and an increased likelihood that races will have to be called by the courts. Although it’s too early to say for certain, that may include the presidential election.

The battle lines are being drawn in states President Trump needs to win. Pennsylvania provides a typical illustration. In 2019 the state overhauled its election code to allow everyone to vote by absentee ballot. What had been a relatively restrictive regime, with early deadlines and limited availability, was transformed into one of the most liberal in the nation, requiring only that ballots be received by the statewide voting deadline, 8 p.m. on Election Day.

Even that wouldn’t hold. After three lawsuits to extend the deadline struck out this summer, the Pennsylvania Democratic Party hit a home run on the fourth at-bat. What changed was that the secretary of state, charged with defending state law, switched sides to support her own political party. The Pennsylvania Supreme Court held that the ballot-receipt deadline, established by state law, violated the state constitution’s “Free and Equal Election Clause” and legislated a three-day extension along with a presumption of timeliness for unpostmarked ballots received by Friday. It dismissed out of hand arguments that the U.S. Constitution’s Elections and Electors clauses vest exclusive authority in state legislatures to set the rules of federal elections that can’t be rewritten by state judges or executive-branch officials.

The U.S. Supreme Court split evenly on requests by the state Republican Party and the GOP-controlled Legislature to block the lower-court ruling—effectively denying them. But both have asked the court to review the case on the merits, and the Trump campaign filed a motion on Wednesday to join that case as a party. If Pennsylvania is close, the Biden campaign will join the other side, creating a 2020 reincarnation of Bush v. Gore.

We’ve come to this pass because of Democratic politicians’ recklessness and the Supreme Court’s timidity. Democrats knew from the beginning that it was risky for state courts to shift the rules of federal elections, because voters might rely on state-court decisions later overturned under federal law. The justices also could have avoided the problem by deciding the issue before Election Day, when voters still had the opportunity to get their ballots in on time according to the rules.

In this case, Chief Justice John Roberts’s inclination to duck politically charged cases may prove self-defeating. If the court has to step in now, after the votes have been cast and counted, a political storm could become a hurricane.

Republicans filed two Election Day lawsuits in Pennsylvania challenging local election officials’ disparate treatment of defective mail-in ballots. While state law doesn’t permit mail-in voters to be notified of defects with their ballots—doing so would interfere with the timing and confidentiality of the counting process—officials in several counties apparently contacted voters to allow them to cure defects. The problem, aside from violating state law, is that this treats voters differently depending on where in the state they live, in contravention of equal-protection principles. It’s little different from the gerrymandered recount the high court rejected in Bush v. Gore.

The backdrop in Arizona is a long-running lawsuit by the Democratic National Committee challenging the state’s requirement (shared by most states) that voters cast their ballots in assigned precincts, along with its prohibition on “ballot harvesting,” the collection of ballots by parties outside the voter’s family or household. The Ninth U.S. Circuit Court of Appeals ruled in favor of the Democrats and enjoined both policies in 2016, but the Supreme Court blocked the injunction a day later, with no recorded dissents.

The litigation dragged on. After a 10-day trial, a district court held that neither of these policies violates the Voting Rights Act. The Ninth Circuit reversed, but it stayed its own decision, anticipating that the Supreme Court would do so if it didn’t. The Supreme Court agreed last month to hear the state’s appeal, but it has yet to schedule arguments in the case. Meanwhile, Democrats stand ready to challenge the disqualification of wrong-precinct votes if that’s necessary to nudge up the numbers.

The presidential race may require legal decisions resolving such issues, as well as recounts and all the additional questions they implicate, to be decided in as many as half a dozen states. Manual recounts may be requested in several states, adding additional delays to the overall process. The Trump campaign has already filed lawsuits challenging various aspects of ballot handling and counting in Michigan and Georgia; suits in Nevada and Arizona may follow. Every case will have to be decided before Dec. 8, the federal statutory “safe harbor” deadline for states to appoint elector slates, or, at the absolute latest, by Dec. 14, when the Electoral College votes.

The media is already accusing the Trump campaign of attempting to litigate its way to victory, but practically every issue in play arises from the Democrats’ march through the courts in the run-up to Election Day. For all the cries of “disenfranchisement,” both sides agree that every lawful ballot should be counted. But after so many conflicting court decisions over the past year, what’s uncertain now is the law, and there’s no dishonor in asking the courts to say what it is.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin has served in the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/another-election-goes-to-court-11604618993?mod=e2two