Review: Takeover: How a Conservative Student Club Captured the Supreme Court by Noah Feldman

In this short audiobook, based on a series of podcasts, Feldman describes the origin and impact of the Federalist Society.  It arose from a feeling on the part of numerous conservative law school students that they were viewed as 2nd class lawyers and buffoons by what they considered an overwhelmingly liberal law school environment.

Scalia was chosen as the groups quasi mentor because, even though he was not an academic at the time, he had “real-world experience” as an Assistant Attorney General.  They needed information on how the system worked so they could learn how to become part of, and dominate, that system.

The appointment of Alito was a direct result of the sabotage of Bush’s nomination of Harriet Miers to the Supreme Court.  The Federalist Society  had been disappointed in Anthony Kennedy, not a member, and were determined to place more conservatives on the court, so they began a well-funded campaign to prevent the successful nomination of Miers to the Court.  The result was that conservative presidents now felt impelled to only nominate Federalist Society members. Alito, a long-time member was the result.  He satisfied their wildest dreams.

Fascinating interview with Justice Sutton, Chief of the 6th Circuit  with regard to the Federalist position on judicial restraint, originalism, i.e. the original meaning, and  textualism.  Feldman brought up Bush v Gore arguing that nothing in the Court’s decision regarding due process that all the counties had to count ballots the same could ever be justified from an originalist point of view.   Sutton’s response was that when originalism fails at least there is a way to judge that failure, whereas without any set of principles or guidelines one has no way to judge the validity of a decision.  The point of “originalism” is that it serves as a set of principles that prevent judges from doing whatever they want. Sutton said that if you can’t figure out what the original meaning is, you defer to the legislature and democracy. See also Living Originalism by Jack Balkin and A Debt Against the Living: An Introduction to Originalism by Ilam Wurman.

Feldman sees fractures growing within the Society. If Gorsuch can render a decision based on textualism in Bostock, interpreting the 1964 Civil Rights law to protect gays and transgenders from discrimination, then, as Josh Hawley (former president of the Federalist Society at Yale) said, originalism and textualism are basically dead. Clearly, the original intent of the 1964 legislators did not mean “sex” to include gays and bisexuals.I think the problem for them is much deeper in that both concepts have simply been used to ground a decision they wanted personally to see. James Staab, in his excellent  Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas, says something similar, i.e.., if Justice Black, Scalia, and Thomas all claim to be originalists but come to vary different conclusions on the same cases, then originalism is a hollow philosophy. The whole point of iroiginalism is that it would bring consistency to results, conservative, of course. Gorsuch and Roberts, Federalists both, have broken that mold.

Review: The Man in the Middle: The Autobiography of the World Cup Final Referee

In my thirties and early forties, I was a soccer referee, working my way up from kids games until I was head referee for a large AYSO organization and certified as a FIFA referee that got me doing many college games (always welcome because they paid a lot more and added travel expenses. This was around 1978-83. In today's dollars, around $500, pretty good for a young man raising a family. High school games were about a fifth of that.)

I played soccer in high school, was mediocre at best, but really got into refereeing. I loved it.  This was at a time when we used the two-man system rather than a ref and two linesmen.  It’s a system that I still think has some advantages, but requires much training and teamwork on the part of the two on-the-field officials. (Remember this was some 35 years ago. That system no longer exists.) I did in fact get FIFA certified, passed all the tests, etc., etc., but never had the chance to work the middle.

Some of my colleagues had far more presence of mind than I ever would.  I remember Nels, a former Swedish ref who, after a kid kicked the ball high in the air following a call he disagreed with, just said, "If that ball comes down, you're out of the game." Or Howie, a ref I always enjoyed working with, who compassionately told a player who had just lost a front tooth after receiving a ball to the face, (we had located the tooth) to head off to the dentist. The player protested, but Howie just told him, in thirty years "you'll have forgotten this game, but if you don't get the tooth fixed, you have thirty years to regret it."

We had a very active association that scheduled all the refs and negotiated the fees. I was lucky that I had a job from which I could take off a couple afternoons a week to drive the considerable distances to the games.

Of course as a former ref, when I watch games now, I spend as much time watching the officials as the players. Some of them become celebrities in their own right, like Babiana Steinhaus, a first-rate woman official who was the first female ref to do the premier men’s German league games.  She also, in real life, is a Police Chief Inspector. She retired from officiating in 2020, but I discovered she also married Howard Webb, a premier World Cup referee, also a policeman. Howard, as it happens, wrote this book about his career, the culmination of which was officiating at the World Cup final in 2014.

I was surprised to learn of all the technology required of and for referees at the Premier level.  Each wore a heart rate monitor that would record every five seconds and then be uploaded to the league's headquarters, where fitness experts would pass judgement on the referee's fitness. Another was the laser device that would register when a goal was scored with an audible signal to the refs earphones.

I suspect unless you have some interest or background in soccer — it really should be called football all around the world; that other sport could be called pointy-ball or boring-ball — this book will probably not interest you.  I really enjoyed it.  The training program and learning experience of top-of-the-line referees is extensive, and that includes a great deal of analysis of mistakes.  Webb is not afraid to discuss his blunders, and in soccer, the buck truly stops with the man in the middle.
 

Review: The Cycles of Constitutional Time by Jack Balkin

Balkin looks at American history as a series of cycles resulting from four factors all related to polarization and its negative effects on our political system: a.) generations polarized by an event die off; b.) party coalitions change as they begin to fracture; c.) income inequality becomes more pronounced leading to corruption and political protests; and finally d.) immigration slows in response to events or policies and that diminishes a source of anger.

He has identified three of these cycles that cause the rise and fall of political parties and alternate what he calls constitutional rot and renewal through its affect on the courts and constitutional interpretation.

Race is a crucial element in the rise and fall of these cycles.  Even though Balkin doesn’t explicitly use race as one of the organizing principles of the book, race is clearly a fundamental factor in all of American politics, as he acknowledged in a recent law review article. 1  Each of the cycles has deep connections to successive political struggles in the United States over race and racial equality. The coalitions that rise and fall often do so because of massive disagreements regarding slavery (before the Thirteenth Amendment) and race (after it, often intertwined with immigration.) Nothing is more polarizing than race in American society.

The cycles are characterized by what he calls regimes, each dominated by one particular party. The dominant party may not win all the elections in a given regime, but it sets the agenda. The three he identifies are Federalists v Agrarian Republicans and Jacksonian Democrats; Republican domination during and after the Civil War;  the Democratic domination during the   New Deal; and the waning one we are currently in of the Reagan Republicans.  

In the first cycle, Jefferson won over John Adams only because of the 3/5ths clause (see also Garry Wills’ book)2 That clause determined the presidential winners for the next half century by giving power to the slave-holding states. Eight of the first nine presidential elections were won by candidates who were plantation owners from Virginia. As there was a requirement that Supreme Court justices had to live in the state where they rode circuit,  Jacksonian Democrats made sure that a majority of the circuits were composed of slave-holding states. This, in turn, helped ensure that a majority of Justices were from slave-holding states, or were otherwise sympathetic to the interests of slavery.  “The defense and expansion of slavery had become a dominant force in American politics.”

The second major regime cycle was the dominance of the Republicans (1860-1932). Again, race was crucial, as the ending of the slave-state dominance became a goal of the new regime. Initially concerned primarily with the rights of newly freed slaves, as the years wore on, the Republican regime became less concerned about racial equality and more concerned about the defense of business interests. Support for black suffrage was also undermined by white violence and terrorism so the goals of the regime changed. As the Democrats began to win more elections (1874 they won both houses) they changed state constitutions to make black voting more difficult and the Republicans interests were more focused on economic issues. Their Supreme Court emphasized the protection of capital and business, in 1888 reinforcing the idea that corporations had the same rights as persons, thus using the 14th Amendment in a way completely foreign to its creators. “These decisions reflected the evolution of the Republican regime during the Gilded Age. The Republican Party transformed from a multi-racial coalition  devoted to equal rights for all citizens into a coalition primarily concerned with the protection of business interests, including the interests of railroads and other corporations.”
The thirties saw the rise of black migration to the north, where they could vote with less hindrance.  The Depression fueled antagonism toward the moneyed classes and big business, so northern Democrats created a new regime that relied on emphasis on individual and civil rights.

 “Political depolarization allowed cross-party alliances on different issues. But the success of the New Deal coalition always rested on a Faustian bargain concerning race. Southern and northern Democrats agreed on economic issues, but not on race. Democratic unity frayed following the election of Truman who infuriated southern Democrats with his integration of the military and other support for civil rights, so they began to flee to the Republican Party.  This was deliberately accentuated by Nixon who courted southern racists.  The New Deal coalition was doomed over differences in race. Even though Johnson beat Goldwater handily, he managed to win five southern states, a harbinger of the future.  Opposition to desegregation, court-ordered busing and affirmative action became key issues in American politics. A racist demagogue, Alabama Governor George Wallace, managed to attract a large number of Democratic voters in the 1968 presidential election.

The Reagan regime was formed by a coalition of Catholics, evangelicals, southern Democrats, and white voters concerned about black civil rights. They swept presidential elections for the next 20 years. Republican politicians and conservative political entrepreneurs discovered that the key to becoming the nation’s dominant party was to fight the culture wars and make issues of race, religion, morality, and culture the central focus of their campaigns.  It was very effective at splitting the Democratic Party. Law and order became a euphemism for keeping the blacks in their place.  For example, the Reverend Jerry Falwell, who founded the Moral Majority, was first drawn to the New Right not because of opposition to abortion but because the federal government refused to allow tax exemptions for private “segregation academies” that discriminated on the basis of race. Falwell’s decision to focus on abortion came in the late 1970s, well after Roe v. Wade was decided.

Continuing the campaign, Trump found multiple ways to invoke race and racial stereotypes both during the 2016 campaign and throughout his presidency. Republican political strategies on culture and race have made Republicans increasingly a white person’s party. Moreover, the party has been losing college-educated professionals and suburbanites – who became independents or Democrats – for white working-class voters, especially in the South and rural areas.  Balkin notes this is not a good strategy for a party that wants to remain in power.  Indeed, “since George H.W. Bush’s victory in 1988, the Republican Party has won the popular vote for the Presidency only once, in 2004. This is not good news for a political party that wants to remain dominant.”

This would seem to imply that the Reagan/Republican cycle is nearing an end.  Not necessarily write Balkin. “In the 2020 election, however, Donald Trump attracted a slightly larger number of Black and Latino voters – particularly male voters – than he had in 2016....Trump’s modest inroads with non-white voters probably surprised Democrats, who assumed that these voters would never vote for an overt racist like Trump. But this neglects several factors. First, minority voters are not monolithic. They have conflicting and cross-cutting values, which will become ever more salient as the percentage of non-white voters in the population grows. Second, many non-white voters are culturally conservative and aspire to be prosperous members of the middle class; this may attract them to the Republican Party.” Republican talent for winning in smaller states that hold the balance in the Electoral College may also become a factor, as it did with Trump in 2016 and George Bush in 2000. 

The Founders feared despotism. Benjamin Franklin lectured his colleagues at the end of the convention: “I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.” To prevent this, the Founders decided on a divided government, a separation of powers. That worked until what Belkin describes as Constitutional rot sets in.  It’s characterized by polarization, a lack of trust in government and fellow citizens, increased economic inequality, and failures in decision-making, a whole host of which led up to the Civil War. The Gilded Age was another example of constitutional rot with huge disparities in wealth, vast immigration, polarization, distrust in government because of policy mistakes, and violence including riots and anarchy.

Belkin thinks the GOP is coming to the end its regime that began with Reagan and we’re in a situation very similar to the end of the Gilded Age. There’s a donor class of wealthy individuals who seek and gain power to enrich themselves, thereby increasing economic disparity, vast distrust in government and fellow citizens, as well as extreme polarization fueled by the mediatainment empires. As I’m writing this, Kevin McCarthy has just failed the 13th ballot for Speaker, a suitable punctuation to Belkin’s thesis.

Related.:
1.    Jack M. Balkin, Race and the Cycles of Constitutional Time, 86 MO. L. REV. (2021)  Available at: https://scholarship.law.missouri.edu/mlr/vol86/iss2/6
2.    Wills, G. (2005). Negro president: Jefferson and the slave power. Houghton Mifflin Harcourt.
3.    Conlin, M. F. (2019). The constitutional origins of the American Civil War. Cambridge University Press.
4.    Wilentz, S. (2016). The politicians and the egalitarians: The hidden history of American politics. W. W. Norton & Company.
5.    Balmer, Randall. " The Historian’s Pickaxe: Uncovering the Racist Origins of the Religious Right." The Changing Terrain of Religious Freedom, 2021, pp. 173-185.
6.    Balkin, Jack M. (2019) "The Recent Unpleasantness: Understanding the Cycles of Constitutional Time," Indiana Law Journal: Vol. 94 : Iss. 1 , Article 6.. Available at: https://www.repository.law.indiana.edu/ilj/vol94/iss1/6