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

Review: The Inevitability of Tragedy: Henry Kissinger and His World By Barry Gewen

 How did Henry Kissinger go from being the man the Playboy Bunnies would most like to have for dinner to a man hated by both left and right; a man who became an issue in a presidential campaign forty years after he had left government.  Gewen answers that question in this intellectual biography.  It's fascinating.

Kissinger was fond of citing the following story:  When the nefarious Cardinal Richelieu died in 1642, Pope Urban VIII is said to have declared: “If there is a God, the Cardinal de Richelieu will have much to answer for. If not … well, he had a successful life.”  I have never been fond of Kissinger, considering some of his policies and actions to be wrong-headed, if not criminal.  That being said, Kissinger was the great realist and perhaps the most influential Secretary of State in the 20th century.  How he got there is the intriguing subject of this book.

Kissinger distrusted democracy, suggests the author, after witnessing the rise of Hitler through the democratic process. (The early section of the book details how quite precisely.) The lesson Kissinger learned from that is that democracy fails at thwarting tyranny and totalitarianism.  Free speech can co-exist in a non-democratic society. He had the choice of returning to Germany following WW II but having served in the Army and achieved his American citizenship, he had been thoroughly Americanized, even coming to appreciate those from the fly-over states as being a more accurate representative of American culture. He wrote in his memoirs, “Nowhere else is there to be found the same generosity of spirit and absence of malice, as in small-town America.”

Kissinger despised pieties, believing that, like Richelieu,  chaos can be a useful instrument of policy and furtherance of  goals for the nation-state. He ultimately lost his position in government by losing support of both the left and right. His mantra was simply that the end (order and stability) justified the means. National interest was paramount, and morality in its service was futile and counter-productive.

The author goes into some detail discussing the influence of Leo Strauss, Hans Morganthau and Hannah Arendt on the politics of Kissinger. All  were of German Jewish background. Arendt is best known for her seminal works on the origin of totalitarianism, a pertinent topic given that the 20th century gave rise to innumerable tyrannical isms: Communism, Nazism, Fascism, and now Islamism. All of them had seen the failure of democracy during and following the Weimar Republic and the democratic rise of Hitler.  This left all of them suspicious of democracy and populism in particular.  Each opposed quantification as a way of making decisions (the direct opposite of Robert McNamara.) Foreign policy and history have a subjective quality, and one needs to beware of idealism, marching into some place you don't understand even with the best intentions.

Kissinger’s role under Nixon was surprising, given Nixon’s constant belittling of Jews and overt anti-Semitism. So many in both parties feared Nixon’s irascible temper and general craziness, they saw Kissinger as a temperate restraint on Nixon. He was the ultimate realist, believing power should be used in the service of the nation, and he initially opposed MAD (Mutually Assured Destruction) arguing that the Russians would be emboldened by the policy as they could never believe the West would initiate its own destruction.  His preference was for tactical nuclear weapons, and it was important the enemy believed the U.S. would use them.  That was the only realistic self-defense strategy.

A very readable and intriguing book.

Packing the Court: Some Musings

 I am reading James MacGregor Burns'  Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. 

 I cannot recommend this book highly enough. If you are worried about current trends in politics, this will calm you.  We’ve been there before. The battle between the Court, Executive, and Legislature began with Marshall’s court; unenumerated rights and processes were at the forefront of debates constantly in the early 19th century, the decisions in Marbury (judicial review) and McCullough (national bank) plus numerous others also illustrate the battle over national v. state rights; extreme partisanship; the division of the country by sectional and class  interests, east v. west, industrial and financial v. agricultural and rural; and not the least, the Electoral College and election of the President with the election of 1800, and 1824 (John Quincy Adin ams defeated Andrew Jackson in 1824 by garnering more votes in the House of Representatives, even though Jackson originally received more popular and electoral votes.) And so it goes, with only the personalities changing.  The issues have never been resolved.

The book’s title is perhaps misleading. When we think of "packing the court" FDR's attempt to add justices to the court immediately springs to mind, yet ever since Marshall's Marbury decision that shifted an enormous amount of power to the court with judicial review, presidents have used political cronyism to add their political adherents to the court. Some one-term presidents, like Trump, have been very fortunate to be able to change the balance of the court in their favor by adding numerous justices that favor their political view. Until Trump, Ronald Reagan had appointed the most justices. William Harrison, Andrew Johnson, Zachary Taylor and Jimmy Carter, all had none. Washington (obviously) and FDR each had eight, so FDR got to pack the court anyway, given his many terms in office.

I won't go on about the validity of Marshall's decision even though one would think that "originalists" would be appalled by judicial review as it was certainly unenumerated, but it does make one stop and pause to realize that unelected judges can have an enormous influence on the direction of the country for many years, an influence even contrary to those in elected office.

FDR was appalled by judicial review.  During a radio talk in 1937 he referred to Marbury v Madison.  The power to declare a law unconstitutional was nowhere in the Constitution, he remarked, and, in fact, Justice Bushrod Washngton almost admitted as much just a little later when he argued the Court should "presume in favor of [a law's] validity until its violation of the Constitution is proved beyond all reasonable doubt. "The Court", Roosevelt continued, " has beem acting not as a judicial body, but as a policy-making body."

I was surprised to learn that following the failure of the Jefferson administration to impeach Pickering and Chase in their effort to get rid of Federalist judges, Marshall was so terrified of the prospect of impeachment that he wrote a friend proposing to mollify the Republicans by giving Congress in concert with the president the right to overturn decisions of the Supreme Court.

The antagonism toward a court that is of opposite political bent probably began with Thomas Jefferson following the packing of the court with Federalists by John Adams. Jefferson wrote Spencer Roane (a vigorous opponent of Marshall’s nationalism and an advocate of slavery, who, ironically, came close to being chosen as Chief Justice in place of Marshall, an appointment that would have drastically changed the nature of the court in the United States):

The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. I will explain myself by examples, which, having occurred while I was in office, are better known to me, and the principles which governed them.*

Ultimately, I think Joshua Braver has it right in his article on court-packing:

Whether court-packing continues to be a live political option will depend on the vagaries of politics. Unless dispelled, however, the common historical narrative will continue to lie like a half-buried loaded gun, ready to be unearthed whenever the Supreme Court threatens the agenda of a new or realigned political party. .... Rather than colonize and infiltrate the Court, Congress curbed it and forced it to retreat through targeted and reversible measures, such as jurisdiction-stripping. [my emphasis] That kind of retaliation against the Court is the “hallowed American political tradition.”

Today, liberal democracy is on the decline, and court-packing has helped

push it there. New times demand reformulations of old theories that encourage

resistance against courts. One response is a knee-jerk reaction that goes to the

opposite extreme and accepts judicial supremacy. But this hermetic sealing off

of politics from law would be just as much a break with American tradition as

court-packing. Going forward, the question is not how to shut down the fierce

and inevitable conflict between the elected branches and the Supreme Court,

but how to manage it. **

**Braver, Joshua. "Court-Packing: An American Tradition?" Boston College Law Review, vol. 61, no. 8, 24 Nov. 2020, pp. 2749-2808. Accessed 1 Nov. 2022. https://core.ac.uk/download/pdf/361263545.pdf 

*"Article 1, Section 8, Clause 18: Thomas Jefferson to Spencer Roane." Electronic Resources from the University of Chicago Press Books Division, press-pubs. http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html

For more information on Spence Roane (whom I had never heard of) see https://en.wikipedia.org/wiki/Spencer_Roane