We Need To Change the Way We Talk About Whistleblowers

They say that sunlight is the best disinfectant. When information about corruption or other wrongdoing comes to light, that transparency results in accountability, both against those who are culpable and for those affected by it. Whistleblowers are the ones with that crucial information.

Whistleblowers are people who bravely come forward with information about fraud, corruption, and other criminal behavior. A whistleblower may be anyone from an employee at a company who comes across fraud to a government employee who sees the law being disregarded and rights trampled to a member of an impacted community whose family is affected by environmental catastrophe because of negligence in the race for profit.

Despite enormous personal and professional risks, they bring to light what would otherwise remain hidden. Often, those who blow the whistle on wrongdoing are disparaged and retaliated against for their actions. Even still, they report such crime knowing they may lose their jobs and income, only to face a negative social stigma while fighting an uphill battle. For the sake of truth and transparency, they are willing to come forward, to step up, and to disclose what they know.

But at present our society does not honor whistleblowers, and because of that we don’t encourage them to step forward.

Studies have shown that individuals who report are then shunned – even in groups that follow the laws and are honest. That means that the stigma is so strong that even organizations that are not corrupt have an aversion to whistleblowers.

“Well of course it changed my life dramatically. It changed the life of my family dramatically…When you go home to your family and you can’t feed them…the stress on that house is unbelievable. That’s the hell that whistleblowers go through.” Nearly 20 years after Dr. Fredric Whitehurst exposed misconduct and forensic fraud within the FBI crime lab in 1997, he recounted how blowing the whistle uprooted his life. Dr. Whitehurst is not alone. Whitehurst’s bravery quite literally got innocent people off death row.

Whistleblowers should be viewed not as informers, but instead as members of an active civil society and as tools for good governance. What is too often overlooked is how whistleblowers actually serve to better the internal integrity of our businesses and democratic institutions.

Corporate culture should welcome whistleblowers as part of a well-run internal compliance program to root out malfeasance. Civil society organizations and grassroots advocacy groups should take pride in the whistleblowers in their midst. There should be widespread support for those who loudly – and without regard for themselves – stand up for transparency and democracy.  Whistleblowers are not “rats,” but rather courageous members of our community and a positive force in our democracy. A cultural shift in how we approach whistleblowers and the benefits they provide is necessary to encourage others to stand up for the truth as well. When information comes to light, transparency results in accountability.

Our legislative and law enforcement processes already recognize this. Government officials not only understand the importance of whistleblowers’ tips in detecting crime, but also the continued and increasing utility of appropriate whistleblower reward laws and protections. That’s because of both the net financial benefit of whistleblowers for those government programs and offices (bringing in millions and even billions per year when utilized well), and the saved time and energy (as whistleblowers provide the tips and so funnel crucial information to law enforcement, it allows for expanded capacity). A bipartisan parade of high-ranking government officials has heralded whistleblowers as the most powerful tools available to our democracy. That’s because, in many cases, whistleblowers make law enforcement possible.

Recent data indicates that whistleblowers are increasingly incentivized to come forward and, moreover, suggests the information they provide is reliable. The number of qui tam (whistleblower) civil fraud cases the Department of Justice has taken on over the past four decades has far eclipsed those that do not involve whistleblowers. In 2017, there were nearly 700 qui tam new civil fraud cases, as opposed to approximately 120 non-qui tam cases.

The Dept. of Justice’s increased reliance on whistleblower information demonstrates that these tips are high-quality and allow law enforcement to identify and prioritize the best cases – those frauds which include significant criminal activity and large amounts of illegal funds, and where the available or ascertainable evidence is strong.

Moreover, incentivizing whistleblowers to step forward through social benefits (for instance, honoring them publicly) and financial rewards can in fact serve to empower the community to protect its own democratic institutions. That’s because this system requires the involvement of the government and rule of law at its core. First, the investigation, prosecution, and sanctions phases necessarily require the involvement of law enforcement authorities. Additionally, this system does not encourage citizens taking the law into their own hands or other types of citizen enforcement. Instead, successful implementation of whistleblower rewards – as a function of law enforcement – encourages faith and trust in the rule of law. Finally, it is the strength of the rule of law in the U.S. that in fact inspires many whistleblowers – both in the U.S. and abroad – to contact American law enforcement agencies with tips about wrongdoing.

The public perception of whistleblowers, however, is much different. Recognition of whistleblowers as a positive aspect of civil society has not yet permeated the public discourse. This is partially because sensationalism surrounding whistleblower disclosures oftentimes shrouds their contribution to detecting and combating corruption down the line.

When whistleblowers come forward, their cases are often framed in terms of the political implications, and the story is dropped by the time there is a court decision months or years later.

However, the public often likes whistleblowers when they are on their side – exposing wrongdoing by their political opponents. In fact, new non-profit organizations have popped up specifically with the goal of fighting for whistleblowers in the current White House administration – and no one else. That is not to say those whistleblowers are not needed, just that blowing the whistle should be not be equated with partisanship, but with our very democracy.

If we change the way we think and talk about whistleblowers, we will also change the way we as a society behave toward those who blow the whistle.  And in doing so, we will encourage further transparency and accountability – further sunlight as disinfectant for the wrongdoing that we all know hides in the shadows.

Maya Efrati is an ACS Public Interest Fellow.

Trump's National Emergency and the Plausibility Gap

President Trump’s recent declaration of a counterfeit “national emergency” to build a wall on the U.S.-Mexico border subverts the separation of powers that has sustained our democracy for 230 years.

The President has brazenly defied the limits Congress imposed on his emergency powers. None of the statutes he invokes authorizes his actions. Under any comprehensible rendering of the English language, there is no “emergency.” As commonly understood, an “emergency” must be sudden, urgent, and compelling, not slow, longstanding, and gratuitous. Far from being sudden and urgent, the border wall advocated by Trump--which was necessary, he has suggested, because Mexican immigrants are rapists and murderers--was a feature of the 2016 campaign. As to a compelling need to act now, the President, in announcing his actions, conceded that he “did not need to” invoke the emergency statutes. He just wanted the wall sooner. Except perhaps in the Orwellian argot of this Administration, there is no such thing as an non-emergent emergency or an exigent need for unneeded action. Nor could the President credibly claim that the National Emergencies Act of 1974 extends the term “emergency” beyond its ordinary, everyday meaning. That Act, adopted in the aftermath of Watergate, sought to curb, not unleash, presidential emergency powers.

Beyond the damage wrought by the Administration’s broad, nonstop assault on the rule of law--which, standing alone, is alarming--the threat to constitutional order from this latest defiance of statutory restraints extends well beyond the present case. The National Emergencies Act is but one of many statutes empowering the President to act unilaterally if, and only if, he makes specified factual determinations (in particular, that there is an emergency). When Congress delegates such authority, it generally assumes, based on long historical practice, that the President will not debase his fact-finding obligation. Otherwise, Congress could never entrust the President with discretion. To allow the President’s current corruption of the Emergencies Act would discourage Congress from delegating important functions that the Executive Branch--in responsible hands--is better suited to address.

Some have suggested that the dispute regarding the President’s actions merely involves the interpretation of obscure, infrequently invoked statutes. But the lack of even a fig leaf of statutory authority to justify the President’s actions establishes that they are a bare-knuckled, if bumbling, power grab in derogation of clear constitutional limits. The President’s actions do not merely raise constitutional questions. They create a constitutional crisis.

The President did not act on a clean slate. He fabricated an invasion of immigrants from Central America who never invaded. He made the border wall a centerpiece of the 2018 Congressional elections, and lost the House. He threatened vetoes, tweeted accusations against opponents, and went on the road to dispense more phony claims of an immigration crisis. And when Congress nonetheless denied the funding he had requested for the border wall, he shut down the government for 39 days. After all these exertions, the President was forced to relent and sign legislation appropriating a fraction of what he sought. Only then did he declare an emergency to obtain what he plainly could not get through the legislative process.

In short, Congress specifically, and repeatedly, denied the President the funding he now purports to tap. Therefore, under Justice Jackson’s framework from The Steel Seizure Case, the President’s power to act unilaterally is “at its lowest ebb.” In fact, the President’s actions here are far more troubling than President Truman’s unsuccessful assertion of authority in The Steel Seizure Case. First, the asserted emergency in that case was more than plausible. President Truman invoked “emergency powers” in the midst of the Korean War and the Cold War, justifying seizure of the mills as necessary to provide equipment to the military. Second, President Trump is not just acting without constitutional authority; he is usurping perhaps Congress’s most organic, even existential, defense against Executive overreach--the power of the purse. By diverting money to fund a project that Congress has rejected, the President is displacing Congress’s Appropriations Power. The Framers wisely vested that power in Congress and Congress alone. To allow the President to override it merely by mouthing the empty words “national emergency,” to defer to his patently, even admittedly, implausible claim, would mock the checks and balances that protect American democracy.

If read to confer unreviewable authority to declare a national emergency and nullify contrary congressional decisions, the emergency statutes would raise grave constitutional issues. Therefore, at an absolute minimum, the principle of constitutional avoidance demands that courts interpret the emergency statutes to forbid the President’s actions here.

Trump’s “Emergency” and the Constitution

This blog was originally posted on The Regulatory Review.

President Donald J. Trump has declared a national emergency to justify building a wall on the U.S. southern border, which Congress refused to fund. But Mexicans and Central Americans coming to our country in search of a better life does not constitute an emergency. Immigration at the southern border is neither new, sudden, nor especially dangerous. The number of immigrants has been declining for years and crime rates among immigrants are lower than among native-born Americans. Drug trafficking exists at the open southern border, but it pales by comparison with drug trafficking across legal ports of entry. And President Trump did not treat this as a legal emergency until he lost his battle for funding in Congress.

Notwithstanding the bogus nature of the current crisis, legal experts fear that the Supreme Court will turn a blind eye to President Trump’s obvious abuse of emergency power, just as it turned a blind eye to the thin basis for his third travel ban. The Court, however, has a constitutional responsibility to scrutinize an attempt to build a border wall that Congress, which has the power of the purse, has decided not to fund. Admittedly, in recent years, the Court has all too often deferred to Presidents claiming to protect national security on the ground that the President’s superior access to information and expertise make it unwise for courts to seriously review his national security and foreign affairs determinations. But the Court’s oversight responsibility has old, but too often poorly understood, roots.

Due process of law has always required that executive action be non-arbitrary. The Supreme Court recognized this repeatedly in late 19th and early 20th century, including in two cases where a President or a governor exercised emergency powers. Indeed, in the one case involving a fake emergency—a purported armed insurrection in Texas—the Court forthrightly held that it did not exist.

The Court also recognized the obligation to review executive branch fact-finding shortly before the New Deal in a forgotten passage of the “sick chicken” case. That case is famous as one of the two cases in which the Supreme Court struck down a statute for unconstitutionally delegating legislative authority. Although the part of that case dealing with the delegation issue is somewhat aberrational, the Court also confirmed in that case that the executive branch must make factual findings to support any exercise of delegated authority and that the Court must review them. It explained that this review is necessary to make sure that executive branch is not exercising a forbidden authority to legislate, but instead, is implementing a congressional policy in a particular field.

The Court’s holding built on a series of earlier cases that held that Congress may delegate broad authority to the President based on the need for a factual predicate for action. The Constitution only permits Congress to delegate emergency authority to the President because the courts have promised to seriously review claims that an emergency exists.

Justice Robert H. Jackson suggested that the Court has a special responsibility to ward off abuses of emergency power in a neglected part of another famous case, Youngstown Sheet & Tube Company v. Sawyer. In Youngstown, the Court struck down President Harry S. Truman’s use of emergency power to seize steel mills to support the Korean war. Justice Jackson, in an oft-overlooked part of his landmark concurring opinion, referred to the then-recent experience of Germany, where Adolf Hitler had abused emergency powers to destroy a democracy and establish a dictatorship. He said that the U.S. Constitution does not permit the President to manufacture emergencies in order to enhance his own power. In the part of the opinion that all first-year law students study, he also said that the emergency seizure of the steel mills could not stand, because Congress denied the President authority to seize the steel mills, just as Congress denied President Trump the funding needed to build a wall.

We cannot predict what this Court will do today, but we do know what it should do. The Constitution requires serious judicial review of President Trump’s invocation of emergency powers to avoid arbitrary presidential conduct.

The problem with Presidents manufacturing emergencies to deploy emergency powers goes beyond this current dispute over the wall on the southern border and even beyond this President. Congress has delegated a lot of emergency powers over the years on the assumption that Presidents will use them only in a true emergency. Given free rein to declare emergencies, this President or some future President may invoke the entire range of emergency powers delegated over the years to circumvent Congress and even to establish an autocracy.

Fulfilling the Framers’ intent to sustain a republic based on the rule of law requires that the Supreme Court fulfill its constitutional responsibility in reviewing a President’s invocation of emergency powers.

Federal Court Nominees Present Frightening View on Future Opinions

This piece was originally posted on the Chicago Daily Law Bulletin.

Whatever other accomplishments President Donald Trump may claim as president, in one area, he is creating a long-term legacy — the judiciary. Working with the 115th Congress Senate, which was led by Senate Majority Leader Mitch McConnell, the Trump administration achieved a historic confirmation of two Supreme Court justices, 30 appellate and 53 district court judges.

The confirmed judges are almost all white (92 percent) and a vast majority on them are male (76 percent). Many of the confirmations occurred due to the Senate majority changing the rules and disregarding norms that have been in place for many decades.

At the end of the 115th Congress, more than 70 nominees were returned to the White House following the Senate rules on end of a congressional term.

In early January, Trump renominated 48 of the 70 whose nominations were returned at the 115th Congress’ end. The first of those 48 likely to get a hearing is Supreme Court Justice Brett Kavanaugh’s proposed replacement on the U.S. Court of Appeals for the District of Columbia Circuit, Neomi Rao.

There are 11 numbered Circuits, the Federal Circuit and the D.C. Circuit. Though its jurisdiction is small, it has been referred to as the second highest court, because the D.C. Circuit has the responsibility of directly reviewing the rulemaking and decisions of many federal independent agencies of the U.S. government related to health, safety and civil rights issues in this country.

The court also would be the appellate court for challenges to executive power and Congress.

Rao currently serves in the Trump administration in the Office of Information and Regulatory Affairs, which is responsible for the implementation of governmentwide policies. In that role, she has implemented the president’s agenda of drastic changes in administrative policies, such as the rollback of Title IX protections.

As then-Sen. Obama noted, elections have consequences, and a president can nominate ideologues and hardliners, but at the same time, the public must be vigilant and understand what this means to the long-term rights and freedoms we share in the United States.

The senators must also understand the long-term impact of appointing hardline judges with lifetime tenures. Because Rao has no prior judicial experience, the public must closely review Rao’s past activities and writings that extend back to her college days at Yale University and that continue unabated to this date. A hard look at Rao’s published beliefs are troubling on various fronts.

1. Rao believes rape victims are partially responsible. In a 1994 Yale Herald article, Rao wrote, “And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” She also stated, “Implying that a drunk woman has no control of her actions, but that a drunk man does strips women of all moral responsibility.”

2. Rao questions climate change and environmentalism. In a 1992 article in The Yale Free Press, Rao attacked climate change, stating acceptance of it as reality was “a dangerous orthodoxy” and labeled “the greenhouse effect, the depleting ozone layer and the dangers of acid rain” as the “three major environmental bogeymen.”

3. Rao believes sexism is dead. Rao wrote, “On this 25th anniversary of co-education at Yale, everything indicates that the transition has occurred smoothly. Women stand on equal footing in almost all aspects of student life.”

4. Rao attacked multiculturalism as a divisive force and discounted racial oppression. Rao wrote in a piece, “Myths of sexual and racial oppression propogate [sic] themselves, create hysteria and finally lead to the formation of some whining new group. One can only hope to scream, ‘Perspective, just a little perspective, dahling!’”

At Rao’s confirmation hearings, she said that some of her comments and writings she would not write today, stating that “certainly some sentences and phrases I would never use today.”

She stated, “To be honest, looking back at some of those writings … I cringe at some of the language I used.” She also noted, “I like to think I’ve matured as a thinker, writer and indeed as a person.”

What Rao has not said, and the Senate confirmation hearings never require or get is that she has changed her views about things she said, only that she would not use the same language today.

When asked about her views on Brown v. Board of Education, she would only repeat that it was ” a really important precedent.” She made the same responses to Griswold v. Connecticut and Roe v. Wade. Rao stated she would follow the precedents.

However, as we have seen, Article III appellate courts have not always followed precedent. On Thursday, the U.S. Supreme Court, by a 5-4 decision, approved a request in the case, June Medical Services v. Gee, to stay a Louisiana law that is the same in all material respects to a Texas law that the Supreme Court struck down in 2016 in Whole Woman’s Health v. Hellerstedt.

So, the 5th U.S. Circuit Court of Appeals panel in a 2 to 1 vote apparently did not see fit to follow precedent. Chief Justice John G. Roberts Jr. joined the four justices appointed by Democratic presidents in approving the stay, pending “the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.”

On Thursday, the Senate Judiciary Committee approved 44 of Trump’s judicial nominees, including six to the federal circuit courts, five of whom were advanced along party lines by the committee. One of the district court nominees, Wendy Vitter, like Rao, refused to state that Brown was correctly decided.

Rao will be up for consideration in the near future. Another Trump nominee to the 9th Circuit, Ryan Bounds, was withdrawn due to his similarly troubling undergraduate writings at Stanford University.

Rao’s beliefs and views from her college days are reflected in current administration policies and views on things such as climate change.

While the D.C. Circuit may seem irrelevant to Chicagoans, given the D.C. Circuit’s importance and role in our judicial structure, as well as the other federal courts, we must be informed and share our concerns with our senators and with others who soon will vote on Rao’s nomination and these 44 nominees.

Will the Supreme Court Rein in Partisan Gerrymandering?

The author is a counsel for the League of Women Voters of North Carolina (“LWVNC”) in a partisan gerrymandering case scheduled to be argued at the U.S. Supreme Court on March 26, 2019.

“What’s different about the partisan gerrymandering cases in 2019 compared to the ones argued in 2018?”  “How can you win without Justice Kennedy?”  These are the most common inquiries lobbed at litigators by Supreme Court observers who watched the Court punt on the partisan gerrymandering cases from Wisconsin and Maryland cases last term, and who now hold a healthy amount of skepticism that the Court, with Justice Kavanaugh having replaced Justice Kennedy, will do anything to rein in partisan gerrymandering when it hears arguments in the North Carolina and Maryland cases on March 26.

The skepticism is understandable, but there are several things different about how this term’s gerrymandering cases have made their way to the docket, the facts in these cases, and the options available to the Supreme Court should it finally be ready to settle upon a theory of liability in partisan gerrymandering cases.

RELATED: Listen to our March 14, 2019 podcast exploring how the Supreme Court might rule on these partisan gerrymandering cases.

First, procedurally, these cases now are more properly developed for the Court’s consideration of the merits of the proposed legal standards.  The Maryland litigants are not asking the Supreme Court to order new maps on the eve of an election.  Following the Court’s guidance in Gill v. Whitford, the North Carolina litigants, on remand, supplemented the record to leave no question that plaintiffs had standing, and the district court so found.  The Supreme Court can now turn its full attention to the merits of the cases, and the various standards for liability the district courts approved in each case.  And having examples of both Republican and Democratic gerrymandering before the Court should not be undervalued.  Evidence of the excesses by both parties on the same day may reinforce cries from democracy advocates that voters of every ilk recognize and suffer legal harms from gerrymanders that allow politicians to choose their voters rather than the reverse—as our constitutional system expects.  The juxtaposition of these cases, along with their procedural posture, represents a significant change from the last term.

Second, while the facts in Maryland obviously remain the same, the Court will for the first time confront the full story of the egregious partisan gerrymander that North Carolina’s Republican legislature enacted in 2016.  Significantly, North Carolina’s 2011 congressional map had already been invalidated for containing two districts that had violated the 14th Amendment —and that racially-gerrymandered map produced a congressional delegation with 10 Republicans and 3 Democrats in a state considered to be one of the most “purple” and competitive states in the nation.  Once the courts struck down the racially gerrymandered map in 2016, the House Republican leading the redrawing effort, Rep. David Lewis, declared his intent to keep that lopsided margin, and he unabashedly bragged in on the record that the only reason the legislature would not pass a plan that would produce 11 Republican and 2 Democratic districts was because it was not physically possible.  With no hesitation, he explicitly referred to the 2016 map as a partisan gerrymander, and he proclaimed his view that partisan gerrymandering was not illegal.  Far more than just “smoking gun” intent evidence, the whole world witnessed the actual firing of the gun intended to silence the political voices of millions of North Carolina voters.  The facts in Maryland are nearly as egregious, with the Democratic governor, charged with leading the redistricting process, blatantly acknowledging his intent to change the 6 Democratic and 2 Republican congressional delegations in the state to 7-1.  With intent facts like those in North Carolina in Maryland, these cases hew as closely as one could imagine to the hypothetical that Justice Kennedy posed in the Gill argument: what if the face of the statute requires maximum political subjugation of one political party, which counsel for the Wisconsin map-drawers conceded would likely violate the Constitution.  That is, to the extent, there are “close calls” of unconstitutionality that exist, the cases this term are not among them.  Facts setting the outer limits of a standard ought to aid litigants who are asking the Supreme Court to establish a new rule.

Third, this year is different because Justice Breyer, one of the Court’s academics, is getting his dream seminar to explore this topic.  In argument in the Benisek v. Lamone case last year, he asked counsel if it would not be better to just gather the different theories presented by the various litigants across the country and hear at once all of the options available to the Court in adopting a standard.  Tuesday, March 26, 2019, will be just that day.

The three cases being argued before the Court on March 26 present an extensive menu of options from which the Court can choose its preferred means to curb the worst of what Justice Alito called “distasteful” gerrymandering without injecting mandatory judicial review into every redistricting process.  The cases offer the Supreme Court multiple theories of liability—based on vote dilution unconstitutional under the Fourteenth Amendment; based on Article I, Section 2, which reserves for the people, not state legislators, the right to choose; and based on two variations of liability under the First Amendment (viewpoint discrimination and harms to the right to freely associate).  It is not that the litigants cannot agree on a standard—it is that the practice of intentional partisan gerrymandering as happened in North Carolina and Maryland actually offends numerous constitution guarantees designed to protect our democracy.  Just as both the lower courts in these cases have concluded, a viable legal rule is possible that can bring an end to these blatant partisan excesses.

In particular, the LWVNC case presents the court with a very logical and step-by-step test for unconstitutional partisan gerrymandering based on a vote dilution theory—a test that has been refined since Gill and embraced by the district court on remand following the Gill decision.  The three-part test proposed asks whether, using three different metrics, there is a consistent pattern of severe and durable partisan asymmetry in the challenged plan.  If the answer to the question is yes, the appropriate move for potential litigants is to, as one of the LWVNC’s experts described it, “throw a flag” and examine the other two factors that comprise the test.  That is, to see if, first, there is evidence of discriminatory intent and second, whether there are any neutral redistricting norms that would otherwise explain the observed partisan asymmetry.  Importantly, the proposed measures of partisan asymmetry would not require review of any plan based simply on a departure from partisan symmetry or proportional representation.  Rather, metrics referenced in this test only trigger greater scrutiny in the most extreme and unfair maps, where voters in packed or cracked districts have no meaningful ability to influence electoral outcomes.

Too much has been read into Justice Roberts’ reference to the metrics that assess partisan asymmetry in Gill as “sociological gobbledygook,” implying that those metrics are too complicated for judges to understand.  But these very measures are not new.  District judges nationwide, with the aid of expert testimony, have been assessing very similar social science methods in voting rights cases for more than 30 years.  In vote dilution cases brought under Section 2 of the Voting Rights Act, liability partly depends upon proof of legally-significant racially polarized voting.  There exist at least three different ways of measuring racially polarized voting: homogenous precinct analysis, ecological regression, and ecological inference.  In fact, when the Court approved the use of homogenous precinct analysis and ecological regression as tools for measuring racially polarized voting in Thornburg v. Gingles in 1986, ecological inference did not even exist as a methodology.  But the social science analysis in this arena continued to evolve, and the ecological inference was developed as a variation of ecological regression that improves upon some of the weaknesses of the latter methodology.  Most courts now will give greater weight to analyses employing ecological inference rather than ecological regression.  All of this suggests that the judicial branch can handle social science metrics, including the tools that evolve over time.

On a related note, one can embrace the vote dilution theory of liability in a partisan gerrymandering case even without fully embracing Section 2 of the Voting Rights Act (VRA).  Some academics and Court observers are suspicious that the Roberts Court may be looking for an opportunity to invalidate Section 2.  Regardless of one’s views about the continuing need for Section 2 of the VRA (though, in my view, present evidence in this nation’s political realm demonstrate that this protection remains sorely needed), there is nothing remarkable about federal courts considering social science metrics as one part of an analysis of whether new districts are required in a redistricting case.  Indeed, this approach is no more remarkable than reviewing economic modeling of competitiveness in an antitrust case.  Lower federal courts have been successfully reviewing and drawing conclusions from statistical analyses of voting patterns for decades.  This theory of liability tracks the well-developed path of Gingles-like cases that, for decades, have been viewed as offering the judiciary a manageable standard for reviewing the legality of redistricting plans.  And the other theories, under the First Amendment and Article I, Section 2, likewise present the Court with additional manageable standards that could be employed.

Of course, there is still the reality that these cases will be argued before a different Court than the cases from the last term—a Court without Justice Kennedy.  The fact that the cases are better postured for consideration on the merits does not preclude the Court from finding grounds to punt yet again—leaving untouched the Davis v. Bandemer holding that partisan gerrymandering cases are justiciable while declining to adopt any of the standards proposed by the litigants.  And it does not foreclose the worst-case scenario—that five Justices might reverse Bandemer and conclude that partisan gerrymandering is non-justiciable.  But the Supreme Court, regardless of present composition, generally looks to craft narrow rules, and the good news is that amongst the several theories of gerrymandering liability now being offered to the Court, several propose ways to impose limits on the very worst of the democracy-eroding maps seen in recent years without inviting judicial involvement any time redistricting happens.  And this trend, given the options in front of the Court, is the reason for real hope.

On March 26, 2019, the Supreme Court will be presented with a wide range of menu options from which to choose a route to restore faith in the integrity of our electoral systems, particularly in the construction of districts that elect members of Congress.  A win under any theory is a win for all citizens seeking a more fair democracy, with electoral structures that allow all voters to participate in the political process on equal footing.

Dunn v. Ray: We Should Have Seen This Coming

Last week, the Supreme Court confirmed what religious minorities and unbelievers have known for some time: Christianity is the Court’s preferred religion, which states may also officially prefer if they wish.

Muslim Dominque Ray, condemned to death for what all agree was a horrific crime, requested that an imam be at his side as he was executed. For reasons that remain obscure, the state of Alabama refused, insisting that only its state-employed prison chaplain could be present in the execution chamber. It’s hard to know how much comfort a Christian cleric can give a Muslim facing imminent death—probably about what an orthodox rabbi might do for a Roman Catholic, or Mormon elder for an evangelical Protestant: maybe more than no comfort at all—though maybe not, given the stark theological differences—but surely a poor substitute for ministering by a leader of the prisoner’s own faith. For Muslims condemned to death in Alabama, however, it’s either the prison’s Christian chaplain, or nobody. Ray chose nobody.

It wasn’t that the state couldn’t find an imam who wouldn’t undermine “prison security” or unspecified “execution procedures”; the state insisted it had no obligation even to try. The Supreme Court agreed, vacating a lower court ruling which found that the state’s denominational preference for Christianity violated both the Establishment Clause and a federal statute mandating religious accommodation of inmate religion.

The Court’s decision triggered bipartisan, ecumenical condemnation. As Justice Kagan noted in her dissent, “The clearest command of the Establishment Clause”—indeed, the one thing everyone thought was indisputable—“is that one religious denomination cannot be officially preferred over another.” [2019 WL 488293, slip op. at *1] And yet, no one should have been surprised—Kagan least of all—for Dunn v. Ray is the logical endpoint of the Supreme Court’s jurisprudence of state use of Christianity.

This jurisprudence began in 1984, when the Court held that a municipally sponsored Christian nativity was a secular symbol of the equally secular “Christmas holiday season.” [Lynch v. Donnelly] From here the Court moved to government displays of the Ten Commandments, beloved of conservative Christians and, we are told, also secular if the government is not too transparent about its pro-Christian motivations. [Van Orden, McCreary County] Next came Latin crosses at war memorials, which a Court plurality understood to honor non-Christian and unbelieving soldiers despite its ancient association with Christianity. [Salazar v. Buono]

The most recent decision in this line was Town of Greece v. Galloway (2014), where the Court found that prayers delivered by Christian ministers in the Christian manner in advance of government meetings do not violate the Establishment clause, so long as they retain a “solemn and respectful tone” which lends “gravity to the occasion” and causes reflection on “values long part of the Nation’s heritage,” and “shared ideals and common ends.” [572 U.S. at 582-83]

The implicit principle running beneath these decisions is the Court’s belief that the symbols and practices of Christianity speak to, and for, all Americans. If a representation of the virgin birth of the Son of God, the symbol of divine commandments given to a Biblical prophet, and the quintessential sign of the crucifixion of Jesus Christ, are somehow not Christian, if the quintessential act of Christian worship—prayer to God in the name Jesus Christ—is somehow secular, why should we be surprised to find that a Christian chaplain employed by the state is perfectly able to comfort a Muslim facing death?

The various puzzling efforts to both criticize the Court’s decision and absolve the Justices of anti-Muslim bias miss the point of the Establishment Clause. Imagine that what reached the Court was a lower court decision staying an execution with the roles were reversed, a condemned Christian whose only option is a Muslim imam. Does anyone really think that the Court’s suspicion of the death penalty bar [Will Baude, Volokh], or the value it places on finality in death penalty litigation [Luke Goodrich WSJ], would have caused it to reach out and reverse the lower court decision so the Christian could be executed with an imam by his side?

We don’t know the answer to this question, because it has never happened, and probably never will. Islam, unlike Christianity, is not a supposed stand-in for all Americans and All-American values. But in truth, neither is Christianity. The enduring value of the Establishment Clause in the United States has been its guarantee that all believers and unbelievers are equal before the government, that it prefers none of their religions to any other. We should all regret that the “clearest command of the Establishment Clause,” is no longer clear, nor a command.