“We’re going backwards,” Justice Sonia Sotomayor told a gathering of liberal attorneys at the annual American Constitution Society (ACS) convention Thursday evening. “With the rising cost of education,” Sotomayor explained, “there’s a lot more kids, and I’m not talking just about kids of our background, I’m talking about kids across the spectrum who no longer have the hope of attending the schools we did.”
Her talk was billed as a conversation with law professor and leading civil rights attorney Ted Shaw, a high school classmate of Sotomayor’s who, like her, rose from the housing projects of the Bronx to obtain an Ivy League education. And Sotomayor predicted dire consequences if the trend towards growing income equality in the United States is not reversed — “as the wealth difference grows, we’re going to, I suspect, have many of the problems other countries have, the unrest other countries have.”
Yet, while Sotomayor opened ACS’s conference with a warning about a terrible future, the remainder of the convention offered few solutions equal to this challenge. Indeed, even a quick glance at the convention’s schedule — with panel titles like “Executive Power in a Time of Political Dysfunction,” “Beyond a Broken Beltway: State Courts, Legislatures and Cities as Venues for Progressive Change,” “Is There a Better Way to Appoint Federal Judges?” and “Protecting Women’s Reproductive Health Care in a Hostile Era” — could lull attendees into a state of despair. The clear message, sent by an organization that convenes some of the brightest and most influential attorneys in America each year, is that the federal government is profoundly broken, that the traditional avenues for change — lobbying Congress or bringing a case to the Supreme Court — are no longer available to liberals, and that advocates must tread unfamiliar roads if they hope to address the nation’s problems.
This is what lawyers are best at. As a profession, we are trained to master process, to find play in the joints of government, and to expand a single line in a court opinion into rich and transformative legal doctrines. But, as the speeches and presentations at the ACS convention over the weekend made clear, there are limits to lawyerly creativity. Sotomayor opened the conference with a prediction of national unrest, and the speakers who followed her could only offer solutions that were inadequate or fraught with danger.
A Democracy Patched Together With Duct Tape
There are “lots of older men making [reproductive] decisions” for women, state Rep. Kathleen Clyde (D-OH) told the audience at the panel on women’s health in a hostile era. Ohio was the first state to consider a so-called “heartbeat” bill — a bill banning abortions if a fetal heartbeat can be detected, which typically happens around the sixth or seventh week of pregnancy. Thanks in large part to overregulation of Ohio’s abortion clinics, Clyde warns that the entire western half of the state will soon have no abortion providers. The state imposed a gag order on rape counselors discussing abortion to women who were sexually assaulted, and it funds so-called crisis pregnancy centers — anti-abortion advocacy centers that often masquerade as women’s health clinics to convince women not to use contraception or obtain abortions.
Clyde laments the fact that, in a state that twice voted for Barack Obama, anti-abortion lawmakers currently control all the levers of state government — Republicans enjoy a 60-39 majority in the state house and a massive 23-10 majority in the senate — and it is likely that their majority will endure for years even if the state’s voters turn against the GOP. After taking control of the state during the GOP wave election in 2010, Ohio Republicans executed one of the most successful gerrymanders in the country. At the congressional level, Republicans control 12 of Ohio’s 16 seats, despite the fact that President Obama won the state by a nearly 2 point margin.
Nor is this pattern unusual to Ohio. In Virginia, Republicans control 68 of the House of Delegates’ 100 seats, despite the fact that President Obama won the state and it elected a Democratic governor last November. In Pennsylvania, Obama won a commanding victory by more than five points over his opponent Mitt Romney, but Republicans still control 13 of the state’s 18 congressional seats. In Michigan, Obama trounced Romney by nearly 10 points, but Republicans control nearly 2/3s of the state’s congressional seats and wide majorities in the state house and state senate. Even in states where voter preferences clearly point towards a more moderate government, Republicans have rigged the game through gerrymanders. The Ohio legislature’s entrenched opposition to abortion is one consequence of this tactic.
After hearing Rep. Clyde describe the grim landscape facing liberals in one of the nation’s most important swing states, it was difficult to avoid a sense of whiplash during the panel touting state-level advocacy as the remedy to a “broken beltway.” Local action, San Francisco City Attorney Dennis Herrera tells the audience at that panel, can “spark a debate” that can send ripples throughout the nation. Citing his city’s stance on marriage equality years before a progressive victory on this subject seemed inevitable, Herrera implores the audience to “focus on what you can do at the local level in order to spur a national debate.”
Yet the panel is quickly forced to admit that a debate does not always lead to national victories. Thomas Saenz, head of the Mexican American Legal Defense and Educational Fund, touts the effectiveness of California’s Voting Rights Act, but that hardly does much to help voters in states like Texas or North Carolina that are hotbeds of voter suppression — especially after the Supreme Court gutted a key provision of the federal Voting Rights Act. California, Saenz concedes, is a “progressive island,” and “it doesn’t do us much good as a nation to have progressive islands.”
If Clyde and Saenz’s remarks expose the limits of one kind of advocacy, the panel on “Executive Power in a Time of Political Dysfunction” reveals something much more ominous. Ronald Weich, a former assistant attorney general in the Obama Justice Department, opens his remarks by criticizing the “ceremonial exchange of talking points” that took place on questions of executive power the minute control of the White House passed from Republicans to Democrats. He also blasts the title of the panel as “chilling” because it implies that the president’s power expands during times of dysfunction. In “that way lies danger,” Weich warns.
Later in the panel, after former Obama White House attorney Michael Gottlieb defends President Obama’s interpretation of his own power to transfer detainees away from Guantanamo Bay, former Bush Administration attorney Steven Bradbury compares Gottlieb’s arguments to similar ones raised by torture memo author Jay Bybee to justify bringing a stronger hand down upon detainees. Though Gottlieb later disavowed this comparison, the message is clear, if your solution to a dysfunctional Congress is more unilateral action by the president, then you have to be comfortable with similar actions when the other party is in power. It’s a chilling prospect to an audience that dreads a potential future when President Ted Cruz refuses to enforce gun laws or when President Rand Paul refuses to enforce the Civil Rights Act.
The Other Team
Beyond the difficult question of what happens to calls for expansive executive power when that power is wielded by the other side, there’s another, practical obstacle hanging over any effort to compensate for a broken Congress by reading the president’s powers broadly. A Sword of Damocles hangs over a Democratic White House every time it takes action the GOP-dominated Supreme Court finds odious. And, as the litigation that nearly destroyed the Affordable Care Act demonstrates, the Obama Administration cannot be sure that their actions will be upheld by the Supreme Court, even if those actions are clearly permissible under longstanding legal precedents.
Nine months before ACS’s cadre of liberal attorneys gathered in Washington this weekend, its counterpart on the right held a similar convening for conservative lawyers. There, the attendees saw panels with titles like “Executive Branch Gone Wild? 21st Century Checks and Balances.” One speaker compared the venerable “Chevron Doctrine,” which calls upon Courts to defer to agencies on matters where those agencies typically have much greater expertise, to rule by an unchecked king. Another speaker touted a bill that is quite popular with congressional Republicans, which would make agency regulation virtually impossible. In an age when the hated President Obama controls the executive branch, much of the Federalist Society would respond by rendering that branch completely impotent.
Indeed, there is a vibrant radicalism alive at the Federalist Society’s annual gatherings that’s rarely seen at ACS’s. At last fall’s Federalist Society convention, one prominent law professor told me that child labor laws, Medicare and Social Security should all be abolished. Attendees buzzed with excitement over two longshot lawsuits seeking to kill Obamacare — one of which argues that millions of people should lose their health care due to a proofreading error. Randy Barnett, the Georgetown law professor who was a leading spokesperson for the first legal case against Obamacare, was treated like a celebrity. He also made a thinly veiled call for the Supreme Court to return to kind of legal reasoning that declared the minimum wage, the right to join a union and other basic labor protections unconstitutional.
The Federalist Society is alive with a sense of possibility. Many of its members truly believe that, with enough hard work, they can built a bridge that will carry America back to the Nineteenth Century.
The Most Dangerous Branch
There was, however, one issue where the ACS Convention conveyed a sense of optimism: gay rights. At a panel reflecting on the landmark Supreme Court decision striking down the anti-gay Defense of Marriage Act, Pam Karlan — a leading constitutional scholar who currently serves as the Justice Department’s top voting rights attorney — offered several theories why the Supreme Court continues to advance marriage equality even as it takes so much of the law in a conservative direction. One theory is that, when the justices arrived for the day of oral arguments in the 2003 gay rights case Lawrence v. Texas, they looked out over the many LGBT bar members sitting in the audience and realized that these were their friends and colleagues. Another theory is that “very few upper middle class people wake up to discover that their children are poor. Very few citizens wake up to discover that their children are undocumented. Very few white people wake up to discover that their child is black.” But even the staunchest advocate for anti-gay policies can awake to a phone call where their son or daughter comes out of the closet.
The theories Karlan offered may be correct, but there’s another, simpler explanation for why gay rights thrives while so much of the progressive agenda languishes in the Supreme Court. On campaign finance, health care, workers’ rights, religion, class actions, forced arbitration, public school segregation, voting rights and abortion, Justice Anthony Kennedy — the Court’s nominal “swing” vote in most cases — typically votes with the Federalist Society, but gay rights is one of just a handful of issues where he thinks ACS is fabulous. The vibrancy of the Federalist Society convention can be explained by the simple fact that they expect to win in the Supreme Court and they frequently do. The same phenomenon explains ACS’s optimism on marriage equality.
Indeed, as Congress has lost its ability to function, the Court has largely moved in to fill the void as America’s most powerful branch of government. Between 1975 and 1990, a study by law Professor Rick Hasen recently found, Congress overruled an average of 12 Supreme Court decisions every two-year congressional term. In that last dozen years, that figure fell to 2.7 decisions per term. The Supreme Court has always had the final word on constitutional matters, but it now has the final word on nearly everything else as well. If America’s Republican justices strip its Democratic president of the legal authority he needs to take a particular action, then President Obama will likely find himself defenseless.
The Lost Generation Of Liberals
In a tour de force of a magazine article, Paul Glastris and Haley Sweetland Edwards of the Washington Monthly lay out all the many ways that former House Speaker Newt Gingrich (R-GA) stripped Congress of the intellectual capacity it needs to function as a co-equal branch of government. Gingrich laid off a third of the “professional staff” who advised Members of Congress and provided much of the legislature’s institutional expertise. He also gutted in-house research shops such as the Government Accountability Office and the Congressional Research Service. He imposed term limits on committee chairs, a move that killed senior lawmakers’ motivation to become experts in a particular field. And he further stripped them of their incentive to become policy experts by moving much of the high-level decisions on legislation from the committees to the party leaders’ offices.
The problems Sotomayor described at the opening of the ACS convention are not easy problems to solve, and they will require considerable expertise to address in an effective an sensible way. The Congress that Newt built is ill-equipped for this task. Moreover, in this age of dysfunction, the dumbing-down of Congress is getting even worse. As former Sen. Byron Dorgan (D-ND) told Glastris and Edwards, “those who are nourished by accomplishment are starving.” Hill staff typically “come highly motivated, they want to feel good about their challenge, their work, what they’re doing for the country. When they’re not getting that, they start looking around.”
This unfed hunger for accomplishment stretches far beyond the people who work on Capitol Hill. There is an entire network of advocates, public interest lobbyists, litigators and think tankers whose job is to influence Congress and the Supreme Court. If many of the best liberal lawyers in the nation are not able to see a clear path through a dysfunctional government, then these jobs become much less attractive. Bright young progressives choosing between a life of public service and a job that pays three times as much in the private sector will be much more inclined towards the latter. The brain drain is likely to extend far beyond the halls of Congress.
Meanwhile if conservatives like many of the lawyers I met at the Federalist Society awake every day believing that it could be the day when the justices hand them their next great victory, then their movement will only become more energized. The best, as William Butler Yeats once wrote, will lack all conviction, while the worst will remain full of passionate intensity.
Disclosure: the author of this piece is a former employee of ACS.