In Defense of Court Expansion

Aaron Belkin spoke on a plenary panel at the 2019 ACS National Convention in June. You can see the panel here.

After presidential candidate Pete Buttigieg signaled an openness to court expansion in February, a handful of critics in the progressive community urged him and other 2020 contenders to denounce the strategy, and to embrace other judicial reform options. The growing awareness that the Supreme Court must be reformed is an important first step, but critics of court expansion are succeeding, at least for now, in convincing 2020 candidates to disavow the strategy in favor of alternatives that are unlikely to work.

The project that I founded, Take Back the Court, is busy producing research reports that will explain why court expansion is the best judicial reform option and why alternatives cannot be effectively implemented. While awaiting that research, however, I thought it might be helpful to comment on a handful of beliefs that appear to sustain most of the skepticism about court expansion.

(1) Critics fear that court expansion will provoke Republicans to retaliate in kind. Buttigieg says that provoking the GOP is the “last thing that we’d want to do” and Neil Siegel argues that “proportionality is important to prevent conflict escalation and to avoid fueling a race to the bottom.” These concerns strike me as off-point, because Republicans will not hesitate to expand the Court if they need to do so in order to control it, regardless of what Democrats do. If Democrats reform the Court with a facially neutral option such as term limits, the conservative media will howl for years about a stolen Court, and then Republicans will expand the Court at their first opportunity. Even if a liberal majority is obtained through normal rotation, a nearly impossible scenario for the indefinite future, Republicans will expand the Court as soon as they can.

(2) Court-expansion critics tend to misdiagnose our current predicament in terms of polarization rather than asymmetric polarization, and fail to appreciate the extent to which the GOP has become radicalized. GOP radicalization is perhaps the greatest threat to American democracy, and should be understood in terms of four dimensions: (1) a systematic commitment to distortion and fabrication; (2) prioritizing narrow partisan concerns over national interests and even national security to an extreme degree; (3) underhanded tactics such as voter suppression, judicial theft, and maximal obstruction; and (4) a deep commitment to scapegoating. My interpretation of the evidence is that the GOP is no longer committed to democratic governance.

(3) Because they seem to underestimate GOP radicalism, court-expansion critics spend considerable time and effort crafting neutral reform options that, they hope, could withstand Republican sabotage. The neutrality of reform options is, of course, optically critical and consistent with the principles of good governance. There is no such thing, however, as a system that cannot be gamed, and GOP radicalism is so extreme that the party will try, and probably will succeed, at gaming, circumventing, and subverting even the most benign reform options. (One of our forthcoming research reports will address how the “5-5-5” option can be gamed). Critics want to save the Court and to “preserve its legitimacy as an institution above politics.” But the Court cannot be saved unless both parties are committed to democracy.

(4) Reform options—aside from court expansion—that scholars have proposed have almost no chance of working. Consider term limits, an option that looks good on paper, but that probably cannot be implemented in practice. Between the passage of a law requiring term limits and the point at which they would start to have a moderating impact on the Court, there would be ample opportunity for the five conservative justices to enjoin and then strike down the statute. Conservatives spent more than a generation carefully plotting the capture of the judiciary, and there is almost no chance that they would relinquish power by upholding a term limit bill. Similar problems plague other reform alternatives.

(5) In light of the previous four points, court expansion may be the least risky judicial reform option, because, perhaps more than any other strategy, it could prevent Republicans from dominating elections for awhile, possibly quite awhile, which could de-radicalize the party somewhat. If Democrats return to power in 2020, eliminate the filibuster, provide statehood to Washington, DC and Puerto Rico, and pass legislation to restore democracy (for example by guaranteeing an automatic right to vote), the Brennan Center estimates that 50 million voters could be added to the rolls. Under such circumstances, it could be difficult for Republicans to expand the courts in retaliation for awhile, as they would need to regain control of the White House as well as both chambers of Congress. Even Epps and Sitaraman, both of whom are skeptical of court expansion, acknowledge that “we can imagine conditions under which court-packing could lead to a stable equilibrium that does not invite an ever escalating cycle of political retaliation.”

(6) Unless Democrats sweep back into power, eliminate the filibuster, expand the Court, and enact the democracy agenda that Brennan estimates could add 50 million voters to the rolls, electoral politics probably cannot save democracy. Absent that narrow path, Democrats can still win elections from time to time, but Republicans will leverage Senate obstructionism and radical jurisprudence to prevent them from governing for the foreseeable future. When only one party gets to govern, when Black and Brown people cannot vote, when corporations and wealthy donors are able to purchase policy, and when gerrymandering allows minority parties to control the levers of power, that’s not democracy.

(7) The skeptics are correct in positing that a conversation about court expansion could energize the conservative base and scare away moderates. Several qualifications, however, deserve consideration: (1) Experts have not yet made the case to the public that court expansion is necessary to save democracy; (2) Experts could do more to educate the public about how the Court has compromised democracy, for example by gutting the Voting Rights Act; (3) As the Court continues its long-term effort to undermine democracy, public opinion may shift, especially given concerns about Justice Kavanaugh; (4) The notion that progressives cheat has already been baked into conservative turnout numbers thanks to a generation of rhetoric about voter fraud; (5) If the public comes to understand that Congress would eliminate the filibuster, expand the Court, and enact the democracy agenda, this could motivate non-voters who have become cynical about politics to turn out, because they will see that bold change is possible; (6) Concerns about energizing conservative voters and scaring away moderates can always be invoked to stifle progressive discourse,  but that’s not a reason to be quiet, especially during national emergencies.

 

Aaron Belkin is director of Take Back the Court, which was previously named Pack the Courts, and he can be reached at belkin@takebackthecourt.today. This post was revised on June 12 to reflect the change in the organization’s name and other minor updates.

 

Women Need Earning Equality Now: A Progressive Judiciary is One Key to Pay Parity

2019 is the year of the woman: Americans are now at least starting to listen to women when we say we have been harassed or assaulted; more women than ever are running for the highest office in the land, and there are more women in Congress than there have ever been. While we’ve come a long way, baby: We have a way to go. One fundamental truth that hits us in the pocketbook every day is that women still do not make what men make at work, even when we have equal education and experience.

Women today still earn on average roughly 80 cents for every dollar paid to men. American women must work an added four months on average to earn their male counterparts’ salary, a pay gap we recognize annually on Women’s Equal Pay Day, this year on April 2, 2019. The pay gap is worse for African-American and Latina women, with African-American women making roughly only 61 cents for every dollar made on average by white men and Latinas on average earning about 53 cents for every dollar made by white men.

Women in the legal profession are making some progress. Women outnumber men in law school. The wage gap persists for women lawyers in part because the super-high earners are mostly men – those at the very top of the pay scale (think partners in big law firms). And generally, women are not paid as much as men even when women get the same education and work the same hours as men. Requiring pay transparency is a good first step for equality. Efforts to diversify clerkships, which Justice Sonia Sotomayor endorsed at last year’s ACS convention, will also help propel women and people of color to the top of the legal profession.

The good news is that the gap between what women and men earn is shrinking. But here’s the bad news: It’s shrinking because most men’s wages have been flat. Not all men, of course. The richest 1 percent of Americans’ wages are skyrocketing. So, we should focus not only on the closing the pay gap but also on stemming rising inequality. Women should be paid what men are paid for doing the same work, and wages should rise for both men and women.

As I write about in my upcoming book “The Democracy Fix,” conservatives have been ruthless in gaining power on a local, state, and national level in elected government and in the judiciary. And they have used that power at the behest of business interests to make it harder for working women to get paid the wages they deserve. The long-term solution to earning pay parity, as for so many other issues, is for progressives to be as successful as the Right has been by winning elections and selecting judges who hold a progressive vision of the Constitution, which will uplift all workers.

Progressive elected officials can enact popular legislation like a higher minimum wage, paid sick days, and family leave, which have a disproportionate impact on women and will lead to fair wages for all. But it all begins with working to make sure we control the levers of power in statehouses, in Congress, and in the White House – and especially in the judiciary.

Women have come a long way since my grandmother came to this country as an immigrant scullery maid, but as I wrote in “Under the Bus,” women in the lowest-earning jobs in this country have been left out of much of that progress. The women who take care of our children and our elders, the maids, and the waitresses are not paid what they deserve.

On this Equal Pay Day, we need to work to change policies to reflect our values. People who work hard all day should be able to live on their earnings in a country with our resources. And women’s work should be valued, whether or not it is work that men do.

Corporations Are People. That’s Why Arlene’s Flowers Should Lose.

The Washington Supreme Court is the current battlefield in a national conflict between religion and anti-discrimination laws. The Court is considering the case of Arlene’s Flowers, a small flower shop in the central part of the state, which refused to sell wedding arrangements to a gay couple. The arguments in the case parallel those made last year in the Masterpiece Cakeshop controversy, the case of the Colorado bakery that refused to sell a cake for a same-sex wedding. The U.S. Supreme Court decided for the bakery on reasons that don’t apply broadly (the Court held that a Colorado official allowed anti-religious bias to affect the state’s prosecution of the bakery). So cases like Arlene’s Flowers are still making their way through the lower courts.

The conflict is serious. On one side, the state has a strong interest in protecting consumers from discrimination. On the other side are religious people who bristle at the state telling them they must use their artistic talents to commemorate same-sex unions.

As in the Masterpiece Cakeshop controversy, most of the attention in Arlene’s Flowers has been paid to whether the business is engaging in a first amendment-protected artistic activity. Is baking a cake speech? Is a floral arrangement? Justices Ruth Bader Ginsburg and Elena Kagan questioned the Cakeshop’s lawyer last year with a series of hypotheticals: how about the make-up artist? The tailor? The hair stylist? The jeweler? The line drawing difficulties are immense.

But there’s a way out of this difficulty, and it means that courts can avoid the tricky free speech and religion questions. And the way out is — surprisingly — based on the notion that corporations are people.

The sources of the religious objections to the anti-discrimination laws in both Masterpiece and Arlene’s Flowers is not the bakery or flower shop but the individuals behind the businesses. In Masterpiece it was Jack Phillips, and in Arlene’s Flowers it is Barronelle Stutzman. Both are devout Christians who believe their faith commands them to not sell wedding cakes or wedding arrangements to same-sex couples, since doing so would cause them to be complicit with sin.

This distinction between the companies and the individuals behind them is important. With the help of Daniel Rubens and other excellent lawyers at Orrick, Herrington & Sutcliffe, I recently filed a brief in the Supreme Court of State of Washington, urging the Court to focus on this important point. (We filed a similar brief in Masterpiece, but the Court ultimately did not consider the issue.)

In the Washington brief, we argue that the company and Stutzman are not the same in the eyes of the law. Arlene’s Flowers – the company – is organized as a corporation, like thousands of small businesses. Stutzman owns shares in the company, and is employed by it. Even though the company is “closely held” and controlled by one family, the company has legal “personhood” of its own.

Even in situations in which a single shareholder is dominant, the separation of shareholder from corporation is a fundamental principle of business law. Separateness is often the very reason why founders of even small companies choose to incorporate rather than to operate as a sole proprietorship. Shareholders receive immense benefits from separation, including the right of limited liability, which protects their personal assets from claims against the corporation. This protection is especially crucial for small businesses. If Amazon has to pay a tort judgment, it is unlikely any particular shareholder would suffer devastating losses even without limited liability. If a local florist is held liable for a significant judgment, owners would risk financial ruin if not for limited liability.

Religious business people cannot have it both ways. They cannot stand behind the corporate form when it suits them for financial reasons, but claim that they are the same as the company when it comes to religion.

If Arlene’s Flowers can assert the religious beliefs of its shareholder to avoid regulations, courts will be faced with years of litigation to define which companies can take advantage of the exemption. Nothing inherent in Appellants’ arguments restricts their claims to private companies. Corporations such as Amazon, Costco, and Starbucks could be subject to shareholder pressure to announce religious or political views to exempt them from regulation.

Even if exemptions were limited to private or family companies with a dominant shareholder, courts would face questions about what degree and type of ownership constitutes “control”—and corporate law provides no ready answer. Remember that “closely held” or even “family owned” is not synonymous with “small.” Some of this nation’s most prominent corporations are privately held, family companies. The huge conglomerate Cargill employs over 150,000 people, enjoys revenues of over $136 billion, and is larger than AT&T — and is both privately held and family-run. If Arlene’s Flowers can discriminate, then Cargill can too.

Allowing some companies to discriminate would also erode the efficiency benefits that the markets derive from corporate separateness. Customers and state regulators will not know whether a company is subject to the same laws as others without investigation into the beliefs of the shareholders, the number of shareholders, and the capital structure of the company. Customers and others would then be forced to keep track of which companies could discriminate and which could not. The era of the “Green Book” was not only morally shameful but also economically inefficient. We need not return to such an era.

One final aspect of our argument is worth mention. The separation of corporations from their shareholders is a function of state law. If Washington’s courts decided that – as a matter of state law – shareholders cannot be presumed to project their religious and political views onto the company, then such a holding may represent an adequate and independent state law ground for holding that the company must abide by state anti-discrimination law. If so, such a holding would be insulated from Supreme Court review.

 

A New Frontier for Civil Rights: Ending Discriminatory Driver’s License Suspension Schemes

Several newly enacted laws addressing the taking away of a driver’s license for unpaid debts have put the District of Columbia on the front end of a wave of reform. One law ended automatic license suspensions imposed by the D.C. government as punishment for unpaid traffic tickets. The second, which will complete review by Congress and take legal effect next week, ends license suspensions used as punishment for unpaid judgments in certain kinds of private civil litigations. These successes have already led to 65,000 people having their ability to drive lawfully restored.

In our new ACS Issue Brief "Discriminatory Driver’s License Suspension Schemes," we take lessons from these new laws to chart a path other communities can follow, using data and policy reform and legal arguments.

Suspending driver’s licenses for failure to pay fines has cascading effects

In many American cities, driving is an indispensable lifeline necessary for almost all everyday tasks – the only practical way to get to work, medical appointments, school, childcare, or the grocery store. For poorer Americans, who often live outside city centers that are well served by transit or who work long shifts into early morning hours when bus service can be rare, driving is often the only way to meet basic responsibilities. This is certainly true in D.C., where we both live and where housing costs force many working people to live far from public transportation that could get them to a job site in less than an hour and a half.

In these circumstances, automatically suspending driver’s licenses for people who cannot pay traffic debt – and doing so without any inquiry as to the ability to pay – has cascading, damaging effects. It makes it harder for low-income citizens to get to work and earn the money needed to pay their debts. Due to the realities of life, it ends up, in effect, criminalizing poverty when, as is often the case, low-income people end up driving despite suspension. It imposes enforcement costs that must be offset against any meager revenue it produces.

Communities of color bear the brunt of driver’s license suspension policies

And all against a deeply discriminatory backdrop where low-income communities of color suffer the brunt of the harm, including criminal penalties; in D.C., for example, over 80% of those arrested for driving without a license are African-American.

On top of all that, the failure to inquire as to ability to pay prior to suspension renders the practice constitutionally suspect and has led, in several states, to court decisions invalidating the practice.

More than seven million Americans have had their license suspended for unpaid debts. This issue is ripe for reform at the state level throughout the country via public policy reform and, where necessary, litigation advocacy.

We hope the information and analysis in our Issue Brief will prove useful to the dedicated advocates and policy makers fighting for this kind of change in their communities.

It Ain’t Over Til It’s Over: What’s Next for the Mueller Report

During William Barr’s confirmation hearing, numerous concerns were raised about his, ah, unorthodox views of presidential power. Past writings from now-Attorney General Barr indicated his deep skepticism about the legitimacy of the Russia investigation overall and, of greater concern, his apparent assertion that a president could not obstruct justice, given the president’s role as the nation’s chief law enforcement officer.

Now that we’ve gone from a Mueller report that “does not exonerate” the president to Barr’s assertion that the President did not do anything that rose to the level of obstruction, those concerns seem eerily prescient and point to the need for some additional steps to be taken before President Trump’s victory dance will truly be justified.

First and foremost, the American people deserve to see Robert Mueller’s full report. It may be that the report says exactly what Attorney General Barr claims, but we won’t know that if it never sees the light of day. And since the president is convinced the report proves him innocent, he should have no problem with its release. Any hesitancy here from the President or his allies is an indication that there is more to this story than what we’ve gotten from Barr so far.

Second, Mr. Barr should explain his thinking in making the assertions he did about collusion and obstruction. GOP members of Congress extolled Mr. Barr’s integrity during his confirmation hearings; surely, they don’t fear a full public airing of his rationale for making the judgments he made. A trip to Capitol Hill to walk us through his thought process would be in everyone’s best interest, including Mr. Trump’s.

Third, it would be very interesting to hear if Mr. Mueller agrees with Mr. Barr’s characterization of his report. Mr. Trump spent two years trashing Mueller only to smilingly accept his conclusions once they fell in his favor. It would stand to reason that the President should have no problem with the man who proved his “innocence” giving us all a more detailed airing of how he did so. A trip to Capitol Hill for Mr. Mueller would also seem to make sense.

Fourth, whether it comes from Mr. Barr, Mr. Mueller or both, we need an explanation of why there was so much smoke if indeed there was no fire. A lot of Trump compatriots are in jail or headed that way as a result of this “witch hunt”, having been caught lying to law enforcement about their interactions with the Russians. People lie to law enforcement to cover up crimes. If all this was on the up-and-up, why all the lies?

Lastly, despite Mr. Mueller’s reputation for integrity and thoroughness, many questions remain on this issue. The President’s relationship with Vladimir Putin has had everyone scratching their heads from Day One, with numerous examples of the president bending over backward to excuse Russian misdeeds. He has also taken great pains to let Russia explain away law enforcement findings that they interfered with the 2016 election on Trump’s behalf. These efforts have often devolved into the absurd. Why? Does Russia have something it is holding over the president’s head? Do the president’s past, present, or future business dealings with Russia factor into this?

Then there is the obstruction of justice question. Mueller apparently did find evidence the president obstructed justice, Mr. Barr just didn’t think that evidence rose to the level of a crime. What was that evidence? What was the standard of proof Barr employed? Would someone who did not share Barr’s creative views about presidential obstruction of justice feel differently than he did? Either way, Congress needs to continue its investigations into these important matters. The Mueller report is a piece to the puzzle, but it’s not the final piece.

After the GOP investigated the Benghazi tragedy and was unable to lay blame at Hillary Clinton’s feet, they launched a second investigation, then a third until, all told, eight congressional committees had examined the issue. The non-scandal of Hillary Clinton’s email habits was similarly investigated ad nauseam by multiple committees. And though interest in those investigations not-so-bizarrely disappeared after Trump’s victory in 2016, surely those same intrepid investigators can see the value in asking a few more questions about something as consequential as a foreign government’s attempt to corrupt our democracy.

Attorney General Barr may be 100% right about what the Mueller report says, and we may indeed be able to put this all behind us, but we don’t know that yet. And until we do, any victory dance by the President or his allies would seem to be premature.

 

 

Giving Women a Voice in the Law: The Influence of Women Justices in State Supreme Courts

Every March, we celebrate Women’s History Month by remembering the trailblazing women who broke barriers to equality in the legal profession, from Myra Bradwell, Belva Lockwood and Florence Allen to Constance Baker Motley and Sandra Day O’Connor.  What is the effect of women justices on the day-to-day operations of the courts? In our research, we examined the influence of women justices, chief justices, and majority opinion authors in building consensus on state supreme courts. We found that women majority opinion writers can engender larger coalitions in majority in a number of situations, although when this is and is not the case can be quite interesting.

Gender Equality Determines How Courts Decide Much More than What They Decide

Many scholars have sought to understand how women judges, especially on collegial courts - where justices decide cases as a group - affect the decisions of those courts.  Generally, these studies have revealed little evidence of great gender differences in the decisions American judges make.  Indeed, such differences are typically found only in cases involving issues relevant to women’s lived experiences, such as gender discrimination cases.

Instead of looking for direct differences in decisions, researchers have considered whether women’s leadership, and gender diversity more generally, may influence the decision-making process in observable ways.  This approach builds on the idea that women foster more collaborative, cooperative environments than men in the same leadership role. In the judicial context, these qualities have been shown to result in greater consensus or moderation when women judges are involved, both in trial and appellate courts.

From this line of research, we develop a theoretical argument about the influence of gender on the opinion-writing process in state supreme courts.  Considering that women judges are found to foster consensus in other parts of the decision-making process, we should see similar effects in the bargaining and negotiating that makes up the opinion-writing process. Specifically, we consider three avenues of influence: the number of women serving as justices, whether the court has a woman serving as chief justice, and whether a woman serves as the majority opinion author in a case.

State Supreme Courts 1990-2015: Considerable, Though Incomplete, Progress Towards Gender Equality

To test this theory, we examined the opinion-writing process on state supreme courts from 1990-2015.  We collected data on all state supreme court opinions from this time period in three issue areas: employment discrimination, environmental law, and search and seizure, resulting in a dataset 6,854 written opinions. This time period allows us to capture a period of great change for state supreme courts, when the prominence of women justices and chief justices increased, as shown in the tables below. In 40 of the 50 states, a woman has served as the chief justice on the court at some point during this 16-year period.

Although progress toward gender equality on state appellate courts has been considerable over the past 30 years, it remains incomplete. The Gavel Gap, a 2014 study of state court judicial diversity sponsored by the American Constitution Society found that two-thirds of state court appellate judges are men.

How Women Judges Shape Appellate Court Judicial Decision-Making

Examining state supreme courts allows researchers to take advantage of this variance in the number of women on the court, whether there is a woman chief justice, and if there was a woman majority opinion writer. Most notably, when the majority opinion author is a woman in cases involving employment discrimination or search and seizure, the predicted size of the majority coalition increases. The effect is strongest in employment discrimination cases, where having a woman write the majority opinion increases the percentage of justices joining the coalition by about 5%. In other words, women majority opinion writers can engender larger coalitions.  This is in line with our theory and what others have found about the consensus-building abilities of women judges and justices.

Surprisingly, we also found that when there are more women participating in the opinion writing process, the size of the coalition decreases in employment discrimination cases. For these cases, the results show that moving from a court with no women to a court of all women would decrease the size of the coalition by 21%, or about two justices on a seven-justice court. This result was contrary to our expectations, so we explored it further. What we found was that this result only held when the majority opinion author was male. In other words, in cases where women justices are more likely to have lived experiences (like experiencing discrimination in the workplace), when men write the opinion there is more disagreement among the justices. We cannot say for certain what is happening to cause this, but it is possible that women justices may have a harder time being heard during the opinion-writing stage by their male colleagues.

We did not find any significant gender effects in the likelihood that a case will be decidedly unanimously.  Neither the number of women justices, nor a woman serving as chief justice or as the majority opinion author, appears to influence whether a decision will be unanimous.

Of course, the importance of gender diversity in the judiciary is not limited to the perceived differences in decision-making between women and men.  There is value to having a diverse judiciary, not least because institutions that are open to all and reflect the population are essential to a representative democracy.

As the number of women serving in state and federal courts continues to increase, we must not limit ourselves to the simplest explanations of their influence.  We began our research in search of subtler differences in leadership that may influence the way opinions are written and our results remind us that truly understanding gender and judging is anything but simple.