Why You Should Learn to Read Court Opinions

Supreme Court Rules Immigrants Can Be Detained Indefinitely

Wow! How concerning! I’m going to post on social media about how outrageous it is that the highest court in the land is so hostile to immigrant rights! I haven’t read the opinion or anything like that, but I did read this article. The whole article. Not just the headline. Surely this means I’m prepared to comment intelligently on the Supreme Court’s ruling.

Unfortunately, it does not. The headline above is a blatant mischaracterization of what the Court actually ruled. Assuming the person who wrote the story is somewhat competent at reading legal opinions, the headline probably qualifies as a lie. But I’m more prepared to assume incompetence than malice. Reading legal documents is hard, and even very smart people tend to be bad at it. Especially when they have ideological axes to grind, which tend to make it harder to read a legal document dispassionately.

The lesson here is that you should take everything you read and hear about legal developments with a grain of salt. Law is complicated, and most people don’t understand it. Incompetent journalists are shielded from criticism because there are relatively few people willing and able to criticize them for botching stories on legal subjects. The best way to be informed is to actually read the legal opinions so that you know what’s in them. Otherwise you’re at the mercy of journalists who may have no clue what they’re talking about.

To demonstrate that the headline above is wrong, I will show you some key parts of the relevant legal opinion.

Here is a summary, which comes at the beginning of the opinion:

JUSTICE ALITO delivered the opinion of the Court, except as to Part II, concluding that §§1225(b), 1226(a), and 1226(c) do not give detained aliens the right to periodic bond hearings during the course of their detention. The Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise. Pp. 12–31.

Note that this does not say that detained aliens do not have the right to periodic bond hearings. It merely says that Sections 1225(b), 1226(a), and 1226(c) do not give them such a right. There’s an important difference. Some rights are conferred by the Constitution, some by statute. This right, while clearly not conferred by the statute (as Justice Alito demonstrates), may very well be conferred by the Constitution. That question was not decided.

Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to
consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.

Here Alito explicitly says that the court has not ruled on whether periodic bond hearings are required under our law. While the statutes do not require such hearings, the Constitution may, and Alito instructs the Ninth Circuit to consider the constitutional question. It’s unclear what will happen in subsequent litigation, but the Court has made no substantive changes to our law that will adversely affect immigrant detainees. All they have done is reiterated that courts can’t rewrite statutes in order to avoid answering constitutional questions.

There’s a lot more to the opinion, but you only really need to read the previous paragraph to see that the headline at the beginning of this post is indefensible. This holds as a general rule: you don’t need to read much of an opinion to figure out what the holding is. So make sure when you read about an outrageous court ruling that the ruling is actually outrageous. Often, you will find that it has been blown out of proportion. When cases implicate hot-button issues, it’s understandable that many focus only on who “won” or “lost” while ignoring what the Court actually decided. Understandable, but not excusable. Don’t do it. Read the opinions.

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Whose Government? Which State?

Liberals want more government and conservatives want less. This isn’t really an accurate characterization of the divide between liberals and conservatives, but it’s what most people tend to think of when they think of the left/right divide. Patrick Deneen argues in his excellent new book, Why Liberalism Failed, that both liberals (i.e. left/progressive liberals) and conservatives (i.e. right/classical liberals), favor vesting colossal powers in the state so that it can protect individual rights. Progressives want to permit the state to restrict hateful speech to protect the feelings of minorities, and conservatives want to use the power of the state to extend the free market as much as possible so that we can consume more goods and services to satisfy our needs and wants.

But then there are people who want to give the government the power, not to secure individual freedom (whether from economic or social constraints), but to promote the common good. Elizabeth Bruenig’s column in the Washington Post, combined with her comments that followed it on Twitter, is a good example. Bruenig supports state-funded paid family leave for the purpose of supporting families, rather than the system backed by Marco Rubio, in which the cost of supporting a family would remain on the parent(s), albeit shifted years into the future.

I found an interesting response to this position on Twitter:

This is true, if somewhat beside the point that Bruenig was making at that particular moment. (Her point was that child rearing is a collective concern, and not merely an individual one.) But what I found interesting about this exchange is that it was unclear exactly what was meant by the “state” or “government.” Important public policy questions cannot be boiled down to “more government” versus “less government,” as government can take many different forms, some of which are better suited to pursuing certain ends than others. We do not have to choose between an expansive federal nanny state and individual autonomy. Indeed, these two things often come as a bundle, as Deneen notes in his book.

Instead, we ought to consider what other kinds of government might be better suited to promoting the collective interest that communities have in ensuring that children are raised well. The answer is contained in the question, if the question is posed properly. Communities have an interest in raising their children well, so self-governing communities should promote and protect that interest, which is a key component of their common good. We don’t need to rely on an impersonal, relatively unaccountable governmental entity that does little more than dispense cash to promote the good of families. In a properly constituted community, individual members work together to secure the common good, even if that means sacrificing some of their autonomy.

The solution proposed by Bruenig thus treats the symptoms, rather than the disease. If we have strong communities who are willing and able to govern themselves in such a way that promotes the good of the families that constitute them, then we will not need a distant federal government to tax and spend to support the welfare of families. Federally mandated paid family leave is a quick, short-term fix that might even make things worse in the long run by removing the incentive for communities to govern themselves in pursuit of their common good. The need for devotion to the good of a particular community would be annihilated because of the promise of the bureaucracy to provide financial security to all, regardless of their situation.

Yet Bruenig is correct in maintaining that child rearing is a collective concern, rather than merely an individual one. If I am truly a member of a community, then I will care about the well-being of other members of that community—how they raise their children, whether they have enough financial resources to support their family, etc. And a true community is governed by norms that effectively require members to actively pursue the common good. For example, the federal government need not require me to provide financial help to my parents should they ever need it. Doing so is my moral obligation as their son, even though it is not my legal obligation.

So Bruenig and her critics on Twitter are wrong for the same reason: they assume that an acknowledgement of a collective concern requires the empowerment of a centralized state to deal with that concern. This assumption that the only way to treat the common good as truly common is by harnessing the power of the Leviathan is one of the deadly symptoms of liberal ideology. Neither the autonomous individual nor the distant, centralized state is well-equipped to pursue the common good. Fortunately, we have an alternative, genuine self-government by well-constituted communities.

Solution for Gerrymandering

Unlike some, I don’t think gerrymandering is necessarily a problem. This paper explains why. Party affiliation isn’t an immutable characteristic, and the political goals of parties can change. As a result, the anti-democratic effects of partisan gerrymandering can be avoided, provided that voters are willing to vote for different parties and that parties are willing to change their platforms to appeal to different voters.

Obviously, these conditions don’t always obtain. Voters might be very loyal to their respective parties. Or parties might be unwilling to compromise on issues for ideological reasons. In these cases, partisan gerrymandering will have anti-democratic effects. And while I’m not the biggest fan of democracy, I prefer majority rule to minority rule, all things equal.

So I’ve been thinking about how we might solve the problem of partisan gerrymandering. Judicial remedies are unlikely to be satisfactory, for a variety of reasons. First, I’m not convinced that the judicial power furnishes a remedy for partisan gerrymandering cases in principle. If a court declares a map illegal and none of the actors who are authorized to draw a new map elect to do so, then what else is there to do? Is the court going to hold a state legislature in contempt for failing to draw a satisfactory map? Fine the state until they acquiesce? Or maybe the court will just draw its own map, notwithstanding the provision in the Constitution that empowers Congress, and not the federal courts, to revise federal election regulations. Maybe that could work, at least to some degree. But do we really want to allow unelected officials with life tenure to regulate federal elections based on a highly dubious interpretation of the Equal Protection Clause? I, for one, do not.

Second, even if it is possible in theory for judges to adjudicate partisan gerrymandering claims, finding a manageable standard has proved darn near impossible. There are simply too many factors to take into consideration, making it extremely hard to determine what district lines are “illegitimate.” Third, the proposed standards that have the most promise, such as the “Efficiency Gap” analysis, would have a tendency to further entrench the two party system that we have (because they treat party alignment as more fundamental than it actually is), making it even harder for voters whose preferences don’t align with the platforms of either party to achieve their political goals.

Instead, I favor a different solution. It would have to be passed by Congress or written into the Constitution via amendment. Obviously, these constraints would make it difficult to implement, but I can dream.

Rather than trying to determine what sorts of districts are “fair,” let’s just get rid of districts. All elections for federal office will be at-large. Instead of voting for candidates, voters within a state will pick their desired party, which will offer a list of candidates for office before the election. A state’s seats in the House will be allocated proportionally between the parties. This could also work for Presidential Electors.

This system has several virtues. First, it would eliminate the possibility of gerrymandering, because there would no longer be any districts. Second, this system of at-large proportional representation would make it easier for new political parties to win seats, as they would only need a minimum amount of support statewide, rather than majority support in any given district. Third, if adopted as the method of selecting presidential electors, the system could help to restore the function of the electoral college as a deliberative body.

As it stands now, presidential electors don’t have much agency in the process of picking the president, notwithstanding the fact that this is their job. Instead, they are bound, sometimes by state law, to vote for the candidate who won the popular vote in their state, with a few exceptions. This defeats the purpose of the electoral college, which is to be a body that deliberates over who ought to be president and then selects a candidate.

The current state of affairs could be changed if we adopted the voting system described above for presidential electors. It would still be expected that electors from the major parties would vote for their party’s candidates. However, smaller parties, who might not even be able to field a presidential candidate, would still be able to exert influence on the deliberation and eventual vote of the electoral college if they secured even a small number of electors. And the multiplicity of interests and views represented in the electoral college would make it harder for ideologically extreme candidates from either party to win.

Of course, it’s unlikely that this sort of change will come to pass, at least any time soon. Both parties in our government benefit from their continued entrenchment, and would therefore resist any attempt to make it easier for third parties to win seats in the government. And while individual states could adopt these rules for their elections, the legislatures are unlikely to do so, given that ruling parties likely stand to lose by enacting them. Still interesting to think about. Maybe someday we’ll get to a point where something like this will be politically feasible.

The Same Old Political Divide

I’m reading Michael Klarman’s book The Framer’s Coup, and it’s excellent. Everyone should read it.

Throughout the book, Klarman discusses the Constitution’s strong anti-populist bent. The framers were intent on insulating the central government from democratic influence as much as possible. They were constrained to include republican features not so much by their own liberal political philosophies as by the reality that their handiwork would eventually require popular ratification. Indeed, according to Klarman the Constitution lacked popular support among a number of constituencies in the United States, and ratification was won in a battle that was hardly fought on a level playing field.

Which constituencies got the short end of the stick? Klarman divides several axes along which opinion divided: urban/rural, creditor/debtor, East/West, and North/South. The Constitution, for the most part, had the support of the coastal elites who owned government securities. But farmers and others from more rural areas tended to oppose ratification.

The political divide that characterized the ratification debate is much like the one we have today. On the one side, you have the supporters of a stronger national government. They have strong support from the highly educated, from city-dwellers, and from those who live on the coasts more generally. The press is, by and large, on their side, as are the universities. They regard the views of their opponents as crude. And then you have those who are skeptical of the government. They mostly live outside of major cities and away from the coasts. They complain that the media is biased against them. They believe the other party is trying to make a behemoth out of the government in order to trample on their liberties.

If there’s anything that reading about the ratification of the Constitution can teach us, it’s that the divisions that characterize our politics today are hardly new. In some sense, Donald Trump and the rise of populist electoral politics in this country more generally are the result of a failure of one side to conciliate the other. The Framers knew that they needed at least some popular support, and they did everything they could to gain it for the Constitution. It’s not enough to be right about what policies are best. You need the consent of the people to rule effectively.

I sympathize strongly with the arguments of the Federalists. People can’t govern themselves, generally speaking. The common man knows nothing about economics, and if we put major national issues to a direct vote, then the consequences would be disastrous. All the same, even the best men can govern poorly. And if they do so without popular backing, then the backlash will be stronger than it would otherwise be. The elites can’t just claim power on the basis of their own knowledge or virtue. They need to persuade the people to give it to them voluntarily. Otherwise they’re in for a rude awakening.