Why the legal profession is the most important profession in the world

Last Wednesday, August 23rd, I had the honor and privilege of addressing Akron Law's entering JD and MSL (Master of Studies in Law) students at our annual Orientation Dinner.  The Dinner is a wonderful opportunity for incoming Akron Law students and their families to meet many of our faculty, staff, and alumni, and it marks the beginning of these students' lifelong membership in an even larger family:  the Akron Law Family.

A few people have asked me to post the remarks I gave at the Dinner.  They appear below, in slightly edited form.

Welcome to the Akron Law family.  And welcome to your first week as a member of the legal profession – the most important profession in the world.

      Alright, I might be exaggerating slightly.  The medical profession is pretty important too:  life and death often turn on the decisions that doctors and nurses make.  It would be hard to do without the engineering profession:  our buildings and bridges would collapse or perhaps wouldn’t have been built in the first place.  Without the journalism profession, democratic citizens would lack the information they need to make difficult decisions in the voting booth.

      But consider this:  the decisions of lawyers determine whether democracy lives or dies.  Without lawyers, democratic government would collapse – or perhaps wouldn’t have been built in the first place.  Without lawyers, there would be no such thing as democratic citizens and no real point in having voting booths.

      Human society exists in a constant struggle between the forces of violence and the forces of reason.  The forces of violence seek to subjugate 99% of humanity to the will of the strongest 1%.  They assume many different guises:  fascism; racial or ethnic supremacism; imperialism; anarchism; terrorism; kleptocracy (look it up!); theocracy; economic plutocracy.  The logical (and usually intentional) endgame of each of these “isms” and “ocracies” is the same:  a small group of people, more powerful than the rest because they wield weapons or other tools of violence or can pay or persuade others to wield them, dominates the majority of their fellow men and women, exploiting them for their own selfish purposes.

      The forces of violence rear their ugly heads every day, sometimes dramatically, sometimes so subtly that we barely notice.  When white supremacists march on Charlottesville, Virginia carrying torches and, in many cases, assault rifles, they represent the forces of violence in their most open and notorious form.  When a theocracy-seeking terrorist uses a panel van to run down dozens of pedestrians on a sunny summer day in Barcelona, the forces of violence are palpably obvious.  Indeed, the very point of these acts is for the perpetrators to dominate and subjugate others through the open threat of more violence.

      But the forces of violence take quieter forms as well.  They act through the employee who insults a coworker because of her gender identity; through the student who expresses disrespect for students of other races; through the internet troll who takes pleasure in anonymously bullying others; through the police officer who finds an excuse to pull over black drivers in a predominantly white community; through the political party that seeks to arbitrarily entrench its power by impeding the voting rights of citizens they fear will support their opponents.

      The forces of violence in our society are (and always have been) opposed by the forces of reason.  The forces of reason seek to allow all human beings to participate fairly and equally in shaping the world in which they must live together.  They deny that any human being is entitled to dominate others by virtue of his or her race, ethnicity, gender or gender identity, religion, sexual orientation, physical or mental ability, age, wealth, or other morally irrelevant criterion.  They seek common ground upon which collective decisions can be constructed and recognize the need to protect individual and minority rights so as to ensure the fairness of the decision process.  The logical endgame of their efforts is a world in which all of us can coexist without violence, because we recognize the legitimacy of the decisions that bind us, even if we disagree with the content of those decisions.

      Our democratic system of government is a product of the forces of reason, albeit an imperfect one.  So are our commitments to constitutional rights and to fair and impartial judicial procedures for resolving our disputes.  Universities like the one you are joining today are embodiments of the forces of reason – though, again, imperfect ones to be sure.

      Which brings me back to why the legal profession really is the most important profession in the world.  In the end, the only thing standing between the forces of violence and the forces of reason is the rule of law.  The rule of law is the principle that all of us – all members of human society – are subject to the same rules, and to the same procedures for changing, interpreting, and applying those rules.  The rule of law says that the same rules apply to rich and poor alike; to black and white alike; to immigrants and native-born citizens alike; to young and old alike; and yes, to neo-Nazis and civil rights activists alike.  The rule of law is, in a very real sense, the opposite of rule by violence:  it allocates power on equal grounds, based on your status as a human being and not on your superior physical strength or your access to weapons or other means of coercion.

      Who preserves and defends the rule of law?  Lawyers do.  Lawyers are the guardians of the rule of law.  Lawyers have the expertise to make the laws, to interpret them, to apply them in particular cases, and to resolve disputes about how they should be applied.  In fact, those are precisely the skills you will be learning over the next three or four years of your lives here at Akron Law.  So remember that when you are pulling your hair out studying for that torts exam:  what you are really studying for is to become a guardian of the rule of law, of democracy, of individual rights, and of the forces of reason over violence.

      I want to leave you with one last thought before I introduce our distinguished guest.  Being a guardian of the rule of law is hard.  It is very, very difficult.  One reason it’s difficult – a reason that surprises many first-year law students – is that often it’s not clear exactly what the law requires in any given case.  Sometimes the rules themselves are fuzzy.  And sometimes, even if the rules are clear, how they apply to a given set of facts is not.  Very often in the law, there will be plenty of room for reasonable arguments in support of two – or more – very different outcomes of applying legal rules to particular facts.  This may be a source of frustration for you – especially if you come from a background as an engineer or in some other field where the point is to find clearly right answers.  The law is not like that:  in the law, very often the answers are fuzzy.  But keep in mind that this is precisely why we need lawyers as guardians of the rule of law, not computers or trained chimpanzees.  Only lawyers can make sense of a situation in which the law is fuzzy and turn it into a situation with an outcome that is clear.

      The other reason being a guardian of the rule of law is hard is that law – even fuzzy law – often produces results we don’t like.  This is an inevitable feature of the rule of law.  A system that always generated results that a particular person likes would be a dictatorship – a form of rule by violence – not a system of law.  In order to guard the rule of law, we as lawyers sometimes must live with – indeed, sometimes must actively defend – outcomes we find inconvenient, unpleasant, or downright abhorrent.  This is why the ACLU defends the right of neo-Nazi protestors to speak, despite detesting the message they will be free to utter as a result.  The ACLU realizes that the law must apply to every person equally.  If the government can prevent a Nazi from speaking today, then it can prevent an advocate of racial equality and social justice from speaking tomorrow.  That would be government solely at the whim, or in the interest, of those who happen to hold power at any given moment – a form of rule by violence.  The rule of law means the law must apply equally – in a principled fashion, like a rule; that’s why we call it the rule of law.  And applying the law equally, even when it produces results that we hate, can be really hard.

      Whenever the law hurts in this way, remind yourself that there’s a greater cause at stake.  That cause is the rule of law itself, and the force of reason that it protects.  When a lawyer defends the legal rights of an agent of violence, whether that person is a virulent racial supremacist or someone accused of a garden-variety crime, it may look like the lawyer is on the wrong side.  But that lawyer is fighting a much bigger battle.  She is protecting the rule of law and the force of reason from the very forces of violence her client has endorsed or adopted.  And if she compromises her principles because she doesn’t like her client or what her client stands for, the forces of violence win.  This might be something to keep in mind as you take the professionalism oath that our distinguish guest, Judge Linda Tucci Teodosio, will administer to you in a few minutes.

Turning the page

My apologies for not having posted here for quite some time.  I've been a little busy:  Between my most recent post and this one, I've become Dean of The University of Akron School of Law.  I'll try to post with some regularity going forward, although I expect the focus of my posts might change somewhat, to emphasize issues in legal education, developments at Akron Law, and the challenges and rewards of deaning.  In the meantime, thanks for reading!

Time to seriously consider term limits for Supreme Court Justices?

Earlier this week I posted on my tentative view that Democrats and progressives should not wage an all-out war against President Trump's nomination of Neil Gorsuch to the Supreme Court.  I wasn't confident then that this view is correct, and while I still lean that way, I'm even less confident now, having read some opposing perspectives.  (The most persuasive argument for fighting Gorsuch that I've read so far is this op-ed by Senator Jeff Merkley (D-OR) in today's New York Times.)

Regardless of where one stands in this internecine strategy debate -- indeed, regardless of whether one is a Democrat or a Republican, a progressive or a conservative -- the very existence of the debate underscores the high stakes of the Gorsuch nomination.  Judge Gorsuch is 49 years old (younger than I am, I'm saddened to note); if confirmed, he could serve on the Court for another 40 years.  (The oldest Justice ever to sit on the Supreme Court, Oliver Wendell Holmes, Jr., was two months short of his 91st birthday when he retired -- just a few months older than the runner-up, John Paul Stevens, who stepped down shortly after his 90th birthday in 2010.  Two current Justices are over 80 -- Ruth Bader Ginsburg (who will turn 84 this March, God willing) and Anthony Kennedy (81 this coming July).)  That would mean almost two more generations of dogmatic originalism on the Court and thus, most likely, of reliably conservative votes.  By confirming and appointing Gorsuch, the current Senate and president could be tying the hands of as many as 20 future Congresses and 10 future presidents.

The multigenerational impact of a Supreme Court appointment, of course, is precisely why political fights over those appointments tend to be so intense.  The Gorsuch nomination is likely to dominate the press and politics for the next several months, and to consume the energies and resources of interest groups on both the left and the right.  Meanwhile, important political and legal issues directly affecting immigration, national security, the environment, gun safety (or gun rights if you prefer), civil rights, and many other crucial topics threaten to get lost in the shuffle.

One way to make Supreme Court nomination battles less destructive is to lower the stakes, and one way to lower the stakes is to limit the amount of time any given Justice can serve on the Court.  About ten years ago, two distinguished law professors, Paul Carrington (of Duke) and Roger Cramton (of Cornell), came up with a plan to do just that.  The Carrington-Cramton plan (an outline is here, beginning on page 1323) would allow the president to appoint one new Justice for each term of Congress (that is, every two years); the nine most junior Justices would conduct the active business of the Court, while the more senior Justices would perform judicial duties on the federal Circuit Courts and would fill in on the high Court when an active Justice is recused or otherwise unable to participate.  The central effects of the plan would be to limit a Justice's active service to a period of 18 years and to allow each president at least two Court appointments.  In addition to turning down the political heat during Court nominations, the plan would have ancillary benefits, such as reducing the risk that Justices will serve well past their most productive years.

The Carrington-Cramton plan is not perfect.  Eighteen years is still a long time, so it is unlikely to entirely eliminate the rancor surrounding nominations.  But 18 years is substantially less than the 30 or 40 we can expect many Justices to serve under the current system.  And the guarantee of a new nomination every two years seems likely to have a moderating effect, as each political party can expect frequent opportunities to shape the Court -- and because few in Washington will want to incur the costs of an all-out nomination battle every two years.

The biggest risks of the Carrington-Cramton proposal are its potential effects on judicial independence and on the rule of law.  The purpose of granting life tenure to federal judges -- technically, tenure "during good behaviour" -- in Article III of the Constitution was to promote (as Alexander Hamilton put it) "the complete independence of the courts of justice" from the political branches of government, so the judges would not hesitate to decline enforcement of unconstitutional laws.  The biggest threat to judicial independence, however, is the concern that Congress or the president could retaliate against a recalcitrant judge by removing her from office or drastically cutting her salary.  Neither could occur under the Carrington-Cramton plan; Justices would leave active service only by the passage of time or by choice (and would retain their salaries while on senior status), and nothing in the proposal would affect Article III's bar on the reduction of a judge's salary while she holds office.  Nor would the plan affect lower federal judges, who would retain their lifetime tenure under Article III.

Some have quite reasonably worried that Supreme Court term limits would result in frequent changes in the law, as new Court majorities coalesce every few years and overturn or eviscerate decisions of the previous majority.  I agree that this is a risk, and in fact I think it is the strongest policy argument against the Carrington-Cramton proposal.  But I suspect the risk is lower than we might expect at first blush.  Members of a majority on the Court (at least five Justices) will have an incentive, not just to overturn precedents with which they disagree, but also to preserve their own decisions against subsequent overruling by a different majority.  A majority that readily overturns precedent can expect that future majorities will take the same attitude toward its decisions.  On the other hand, a majority that is respectful of precedent contributes to a judicial norm that precedents should not lightly be overturned.  The existence of such a pro-precedent norm can serve as an obstacle to future Court majorities that otherwise may be inclined to overturn precedents -- and can in turn provide some comfort to those future majorities that their own decisions will not be overturned.

The Court, too, has an institutional interest in preserving the public's respect for its authority, a respect that may be eroded if the Court is seen as shifting too easily with the prevailing political winds.  (Members of the Court themselves have occasionally acknowledged this interest, most famously in 1992's Planned Parenthood v. Casey, in which three recent Republican appointees declined to overrule Roe v. Wade in part because doing so would undermine the Court's perceived legitimacy.)  So it is far from clear that de facto term limits will appreciably undermine the rule of law by facilitating frequent overrulings.

There is, of course, considerable room for debate about whether the Carrington-Cramton plan could be implemented by federal legislation, without the need for a constitutional amendment.  (For one thing, Article III requires that judges be allowed to "hold their offices during good behaviour," and there's a decent argument that a Justice forced into senior status after 18 years no longer "hold[s]" the same "office" as a result.)  Carrington and Cramton, mindful of the many practical obstacles to successfully amending the Constitution, offered their plan in the form of proposed legislation.  I for one would much rather see the plan given constitutional status, regardless of whether it could pass muster as a statute.  Implementing it by statute alone runs the risk that Congress could subsequently tinker with the plan for partisan reasons -- eliminating the provision for one Court appointment per congressional term, for example, when a president of the opposing party takes office.

Is it conceivable in today's polarized political landscape that the Constitution could be amended to allow for Supreme Court term limits?  Amending the Constitution requires (per Article V) a two-thirds majority in both houses of Congress (or a national convention, which hasn't happened since the original one in 1787), plus approval by the legislatures (or special conventions) in three-fourths of the states.  It strikes me that the chief current impediment here is likely to be Congress, not the states.  Polls suggest a large majority of Americans favor term limits for Justices; judicial term limits have long been a favorite talking point of Republicans and other political conservatives (who control most state legislatures); and all but four states already limit the terms of their own high court judges.  The obstacle will be Republicans in the current Congress, who one suspects would be loath to voluntarily limit the impact of a Gorsuch appointment or of any other Justices they may have the opportunity to confirm under the Trump administration.

While I hesitate to admit it, a push for Supreme Court term limits might actually be a reason for Democrats to fight the Gorsuch nomination with everything they've got.  If Republicans know they're in for a tooth-and-nail struggle on every high Court pick Trump is able to make, they have some incentive to bargain -- perhaps by agreeing to propose a term-limit amendment if Democrats agree not to filibuster Gorsuch and any other Trump nominees.

Would that be a worthwhile bargain for Democrats?  I tend to think so -- but as I've always been quick to admit, I'm no political strategist.  In any event, Democrats should start thinking about making Supreme Court term limits part of their long-term political strategy.

Why the Democrats should not fight the Gorsuch nomination (too hard)

This morning in my inbox, I found emails from half a dozen progressive organizations I support, all urging me to send money to help them oppose President Trump's nomination of Neil M. Gorsuch to the Supreme Court.  I may write a few checks, but my own inclination is that Democrats and other progressives should not mount an all-out campaign against the Gorsuch nomination.

Why not?  After all, Judge Gorsuch is being nominated to a seat that was, in essence, stolen from President Obama by the Republicans who control the Senate.  With nearly a year left in his presidency, Obama tossed Republicans an olive branch, nominating Merrick Garland, a highly qualified centrist, to the Court.  But the Republicans played politics, unprecedentedly refusing even to hold hearings on the Garland nomination.  Their justification -- that the next Justice should "be determined by whoever wins the presidency" in November -- was undermined by, among other things, hints from the Republican camp that they would reject any nominee put forward by Hillary Clinton if she were elected.

The Republican gambit payed off when Donald Trump was elected president.  For Democrats to roll over now, with an opportunity to fight back by opposing Judge Gorsuch, might seem like the definition of weakness.  As New York Times columnist David Leonhardt puts it, "The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied."

I don't think the Democrats should volunteer to be bullied.  But you don't pick a fight against a schoolyard bully when you know you're going to lose, and when there's not much at stake to begin with.  You pick a fight when there's something important worth fighting for -- and, ideally, when you've got a chance to win it.

There's no question that Neil Gorsuch is a doctrinaire judicial conservative in the mode of Antonin Scalia, the Justice he'd be replacing.  As I've written in my academic work, the all-encompassing, single-minded originalism endorsed by Scalia and Gorsuch is indefensible as a methodology of constitutional interpretation and typically serves as a cover for the imposition of a judge's conservative political views.  But it's unlikely that Gorsuch will move the Court appreciably farther to the right than it was before Scalia died.  Essentially, Gorsuch for Scalia is a one-for-one trade -- a disappointment for progressives, who had hoped for a moderate-left majority on the Court, but hardly a disaster.  Given the demonstrated capriciousness of President Trump, we could have done much worse.  And since Republicans currently control the Senate, any concerted resistance by Democrats to the Gorsuch nomination almost certainly would be futile:  Republicans could simply modify Senate rules to prevent a Democratic filibuster.

The real disaster would be a far-right Trump appointment to fill a second vacancy on the Court.  If Gorsuch is confirmed, the Court will lean to the right, as it has at least since George W. Bush's appointment of Samuel Alito in 2006 (and arguably since Bush pere's appointment of Clarence Thomas in 1991).  But Justice Anthony Kennedy presumably will still cast the swing vote in many high-profile cases, sometimes siding with the four moderate-liberal Justices as he frequently has in the past.  Only if Kennedy, or any of the Court's four moderate-liberals, leaves the Court do we stand on the edge of a cliff.  A Trump appointment to replace any one of these five -- Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan -- would tip the Court to a solid conservative majority, perhaps for decades.

My worry is that a no-holds-barred fight against the Gorsuch nomination now -- one Democrats and progressives are likely to lose -- would drain political capital that could be spent on opposition to the next Trump appointment.  Democrats could be branded as obstructionists (a bitter irony, but a real danger in today's political climate), and the troops could lose faith after fighting a losing battle.  Funds spent in vain to oppose Gorsuch might not be so readily donated again to fight the next nominee.  And, perhaps worst of all, a concerted campaign against Gorsuch is likely to distract Democrats and progressives (not to mention the general public) from the many other urgent political and legal battles that must now be waged in the Trump era, from immigration to civil rights to the environment.

Of course, keeping our powder dry for the next fight does no good if the next fight, too, is unwinnable.  But remember that the midterm elections arrive in less than two years.  If Republicans in Congress continue to support the Trump administration, there's a real possibility that they will lose large numbers of seats in both houses of Congress.  It's unlikely that the Democrats can regain control of either house, much less both of them, in 2018:  In the Senate, most of the seats to be filled in that election already belong to Democrats, and in the House, gerrymandering has made it difficult for Democrats to take back large numbers of seats.  But even significant Democratic gains could shift the political climate considerably post-2018, making Senate Republicans wary of endorsing a far-right or otherwise non-mainstream Trump nominee.  If a Court vacancy occurs after the midterms, an all-out progressive campaign against such an appointment might actually have some traction.

And event if the odds are stacked against us, Democrats and progressives will have no choice but to strongly oppose a Trump nominee to fill a second Court vacancy (assuming, of course, that Trump doesn't pull one of his patented volte-faces and nominate a liberal).  That nomination will simply matter too much.  The Gorsuch nomination, in contrast, is unlikely to change the Court's decade(s)-long right-tilting status quo.

Of course, I'm no political strategist.  But my strong sense is that progressive groups and Democrats on the Hill should softpedal their opposition to Judge Gorsuch.  There are bigger fish to fry, now and in the foreseeable future.

That doesn't mean Senate Democrats should affirmatively endorse Gorsuch, or even vote in favor of his appointment.  How to vote strikes me as a tough call.  At least one progressive lawyer whose judgment I respect has vouched for Judge Gorsuch's character and temperament, predicting that as Justice he would uphold the rule of law -- an important criterion given the Trump administration's apparent disregard for that central democratic value.  There is no doubt that Gorsuch's legal credentials are outstanding (although the appointment of yet another Harvard Law grad would only perpetuate the troubling dominance of Ivy Leaguers on the current Court).  And as I mentioned above, an alternative Trump nominee might be much worse from the progressive perspective.  On the other hand, Gorsuch's dogmatic originalism is (in my view) an illegitimate constitutional methodology that promises to generate extremely conservative results under the guise of impartial judging.  And there is the nagging fact that Judge Gorsuch's potential seat on the Court should have belonged to Merrick Garland.

If I were a Senate Democrat, I think my starting point would be mild but open-minded opposition to Judge Gorsuch's nomination.  I'd be likely to vote against him but open to persuasion in the other direction.  If I sat on the Judiciary Committee, I certainly would question him, politely but aggressively, about his views on constitutional and statutory interpretation, the role of precedent, the independence of the judiciary, and the rule of law.  If I became convinced that Judge Gorsuch would not seek to overturn precedents on originalist grounds and would uphold the rule of law against the Executive Branch, I might give him my vote.

But I don't think I would join an all-out effort to derail his nomination.  Such an effort almost certainly would fail -- and there are more important battles to fight.

An electoral college coup?

I was working up something hopefully intelligent to say about the (entirely predictable) calls for an anti-Trump coup in the electoral college, but as usual my colleague Garrett Epps said pretty much what I wanted to say and said it better.  What he said.

So Trump happened.

Like many of my fellow Americans -- how many I can only guess; certainly many of the almost 60 million people who voted for Hillary Clinton (and probably many more who voted for Johnson or Stein or who didn't vote at all, God help them) -- I'm not quite sure how to feel today or what I would do about it if I knew.  I'm stunned, I'm demoralized, I'm grieving, I'm genuinely afraid of my government and a large percentage of my fellow citizens for the first time in my adult life.  (On this last point, perhaps it's only fair that this middle-aged, upper-middle-class white heterosexual male should finally get a taste of the kind of fear and dread that many women, minorities, immigrants, LGBTQ people, and people who are impoverished experience on something like a daily basis.)

Unexpectedly, and perhaps selfishly, a significant source of my distress is my worry that, as a teacher and scholar (of The Law, no less), I ought to be doing something besides sitting here, numb and dumbstruck like so many other citizens.  I'm a Law Professor, for goodness' sake; Law Professors have Theories, they can provide Objective Analysis, they can reassure students and others that what has just happened fits neatly into an Analytical Model they have lying around for just such an emergency.  (Break Glass, Remove Theory.)  But Trump's victory has shattered the illusions of confidence and certainty in which, as a scholar, I've been conditioned to indulge.

An example:  Rarely in my career has there emerged such a ready-made "teachable moment" for lawyers-in-training as this election cycle and its culmination yesterday.  But unlike many of my colleagues (whom I hold in awe for their dedication and cool-headedness), I didn't say a word about the election in either of the two classes I taught today, save for an oblique reference or two to "being up all night" or welcoming the "soothing effects" of Civil Procedure.  Part of this was my dispositional reluctance to expose my personal political views to my students, for fear of building pedagogical walls (pardon the all-too-apt metaphor) between myself and students who may disagree.  Part of it was the very real worry that, on three fitful hours of sleep and an overflowing emotional reservoir, I literally would break down in tears while standing in the front of the classroom.  But most of it, I think, was something else:  an existential terror that everything I was supposed to be teaching these students, every aspect of legal rules and procedures and institutions that I hold dear, had suddenly been revealed as fraud, or as myth.  Like a schoolyard bully tossing the nerd's science project in the mud, Trump seems to have exposed my life's work as silly, futile vanity.

Another example:  My wonderful colleague Garrett Epps published this achingly elegaic piece today in The Atlantic.  Garrett, a lawyer's lawyer, as attuned to the imperative of the rule of law as anyone I know, argues in essence that Trump's win, while legally legitimate by every reasonable measure, nonetheless violates the Constitution -- or rather voids it.  Electing Trump has broken the Constitution, Garrett thinks, in the same way driving a car with an oil leak eventually blows the engine.  The shell of the Constitution remains intact but its core has melted down, burned out, decayed.  The rule of law means following the results of the rules, Garrett writes, even when we disagree with them; it means, after a fair-and-square election, recognizing as President even someone you think makes a lousy President.  But not Trump; not for Garrett.  Trump is a bridge, or a wall, too far.

Normally I would view Garrett's essay as an opportunity, a glorious opening to a stimulating scholarly conversation.  His argument is in my wheelhouse; I have built my scholarly career, such as it is, on the proposition that legitimate democratic law gives us reasons to obey even when we sorely disagree with its outcomes, that the imperative of living together peacefully as a diverse society requires sacrificing even deeply held substantive commitments to the results of fair democratic rules.  But now I am not so sure.  My theory has failed me when the facts on the ground need it most.

Perhaps my theory will reinflate with time, after the sting of yesterday's result fades away.  Or perhaps a new theory will emerge in its place.  For the moment, all I can offer is a couple scattered observations that I hope will become stitches in the emperor's new set of clothes.

First:  Somewhere in me, the faith in the democratic rule of law, or at least the acknowledgment of its necessity, lingers on.  I hate Trumpism and dread the consequences of its ascendancy in our country.  But I believe -- I have to believe -- that the best response is to continue to insist on rigorous adherence to and vigorous enforcement of our longstanding legal rules and traditions.  No faithless Electors scenarios or seceding northeastern States for me, at least not yet.  Salvation lies within.

Second:  I'm coming to the conviction that the profession I've chosen (professions, really) -- the law and, in particular, education about the law -- are more important than ever and must, simply must, be nourished and given the means to grow and thrive.  Trumpism, I believe, does not triumph in a nation whose citizens are well-educated, including about the system of law and government that, when all is said in done, is the only tangible thing that unites us beyond the random fact of joint tenancy on a single continent.  Democracy withers and dies without education, and it is our national failure to provide a steady, clean supply of that life's blood that is to blame as much as anything else for what happened on November 8th.

CJP

Lower courts are stumbling over the Second Amendment. Badly.

In its deeply problematic 2008 decision District of Columbia v. Heller, the Supreme Court’s (then) five-justice conservative majority declared for the first time that the Second Amendment protects an individual right to possess a gun for purposes of self-defense.  One of many reasons why the Heller decision was problematic was that the majority opinion, written by Justice Antonin Scalia, provided almost no guidance to lower courts regarding how to apply the new constitutional right the Court was announcing.

Heller’s professed methodology was originalist:  the Court recognized an individual Second Amendment right on the ground that, according to the five-justice majority, the Amendment was understood to protect such a right when it was ratified in 1791.  One difficulty with this methodology is that it makes it very hard to apply the Amendment to modern issues, unforeseen by the Framing generation.  How (for example) would that generation have applied the “right … to keep and bear Arms” to semiautomatic assault rifles, or to persons on the terrorist watch list?  Because these particular problems were unknown in the late eighteenth century, there is no on-point “original understanding” to discover.  And because the originalist methodology currently in vogue purports to render irrelevant the purposes or values the Amendment was designed to serve, judges who profess faith to originalism cannot refer to these purposes or values in applying the Amendment to contemporary problems.

This interpretive obstacle was compounded by two additional features of Heller.  First, the Court failed to specify the type of scrutiny that would apply in future Second Amendment challenges.  For most constitutional rights, the Court has developed different levels of means-ends scrutiny for different kinds of laws that affect the right.  For example, under the First Amendment’s Free Speech Clause, the Court applies “strict scrutiny” to laws that regulate speech based on its content, striking down a law unless it is “narrowly tailored” to serve a “compelling” government interest; it applies the less-demanding “intermediate scrutiny” to laws that regulate speech in a content-neutral way (e.g., noise ordinances or laws requiring a parade permit).  Means-ends scrutiny provides some guidance to lower courts, relieving them from having to make an all-things-considered judgment about the validity of a law in every case.  In Heller, however, the Court offered no instruction regarding what level or levels or scrutiny should apply to laws restricting gun possession.

Second, the Heller Court, despite its professed originalism, acceded to modern realities by acknowledging that its decision had limits.  “[N]othing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  The logic behind these exceptions, however, was not explained by the Court.  Were these “longstanding prohibitions” simply outside the scope of the Second Amendment?  If so, why?  Or did these examples represent cases in which the Second Amendment right is outweighed by pressing government necessities under some version of means-ends scrutiny?

The product of these foundational uncertainties in Heller has been a predictable struggle in the lower federal and state courts to make sense of the Second Amendment as it plays out across a wide variety of contexts.  To some degree, this process of messy case-by-case clarification is an inevitable part of our constitutional system; it occurs every time the Supreme Court issues a groundbreaking constitutional decision.  And indeed it is exciting, in its way, to watch courts grapple with the task of forging doctrine around a newly minted constitutional right.  Unfortunately, however, the result so far has often been decisions that are even more normatively troubling and conceptually incoherent than Heller itself.

Consider two cases decided within the past month by en banc federal Courts of Appeals.  (En banc means all active judges of the court participated in the decision of the case, rather than the three-judge panels in which Courts of Appeals typically render decisions).  In Binderup v. United States Attorney General, a fragmented Third Circuit held that a federal statute prohibiting the possession of firearms by convicted felons violated the Second Amendment rights of two men who had been convicted of relatively minor crimes many years ago.  And in Tyler v. Hillsdale County Sheriff’s Department, an even-more-splintered Sixth Circuit ruled that a federal ban on gun possession by any person “who has been adjudicated as a mental defective or … committed to a mental institution” violated the Second Amendment as applied to a man who had been involuntarily committed for a short time as a juvenile.

One serious problem with both Binderup and Tyler was the bewildering variety of views expressed by the judges in each case.  In Binderup, the fifteen judges of the en banc Third Circuit divided into three overlapping opinions, none of which commanded a majority of the bench.  Not to be outdone, the sixteen Sixth Circuit judges in Tyler split into no less than eight separate opinions with no majority.  In each case, shifting coalitions of judges disagreed about how to determine whether the plaintiffs and their conduct fell within the “unprotected” categories listed in Heller; about whether a finding that the plaintiffs’ conduct was protected by the Second Amendment required a per se ruling in their favor; about the level of means-ends scrutiny to be used in evaluating the statutory prohibitions in question; and about whether the level of scrutiny (whichever it was) should be applied to the statute as a whole or only to the enforcement of the statute against the plaintiffs.  En banc rulings are supposed to clarify the law within a particular federal Circuit, but both Binderup and Tyler had the unhappy result of making the law even more confusing than it had been before they were decided.

Nor was the discord and confusion generated by these decisions unique in the post-Heller Second Amendment case law.  As a November 2015 Justice Department memo illustrates, judges across the country have disagreed on precisely the issues that flummoxed the Third and Sixth Circuits in these recent cases.

At least as troubling as the incoherence of Binderup and Tyler was their bottom-line result:  each case in effect created personalized constitutional exemptions from the enforcement of federal firearms laws.  A majority in each of these decisions ruled that federal bans on gun possession by categories of presumptively dangerous people – convicted felons in Binderup, involuntarily committed mental patients in Tyler – could not be applied to the particular plaintiffs in question without violating the Second Amendment.  The courts did not say that these gun regulations on the whole were unconstitutional – nor could they, given the obviously compelling government interest in keeping guns out of the hands of dangerous criminals or the seriously mentally ill, an interest that is only underscored by the daily news headlines.  Instead, these courts in essence ruled that any given felon or mental patient is entitled to argue in court that otherwise valid gun regulations should not apply to him, because of some fact about his background that suggests he is not truly “dangerous.”

This kind of individualized “as applied” challenge to an otherwise valid legal rule is almost unheard-of in other areas of constitutional jurisprudence.  Indeed, highly individualized challenges have been explicitly rejected by the Supreme Court in several analogous contexts, including in the area of religious liberty jurisprudence under the First Amendment’s Free Exercise Clause.  And there are good reasons for disfavoring them.  Individualized rulings threaten to turn general laws into Swiss cheese, riddled with arbitrary holes in which they cannot be enforced against particular people or categories of people.  They allow courts to overrule elected legislatures on intensely empirical and predictive questions, like who is too dangerous to possess a gun.  And they invite a flood of costly litigation to determine whether, in each of potentially thousands of cases, an individual’s particular circumstances entitle her to a special carve-out from laws that others must obey.

Until the Supreme Court brings more clarity to Second Amendment doctrine, however, the lower federal and state courts will continue to generate incoherent decisions like Binderup and Tyler.  Among other things, the high Court needs to determine whether individualized Second Amendment exemptions are permissible or required; whether there are in fact entire categories of people (e.g., felons) or gun-related conduct (e.g., carrying assault rifles) that fall outside the Amendment’s protections; and the standard by which to assess the great many federal, state, and local laws that in some way affect gun possession.  Of course, the current Court is deadlocked on most hot-button issues between four deeply conservative and four relatively centrist members (with occasional crossover votes by Justice Kennedy from the first group and Justice Breyer from the second).  A structurally deadlocked Court is not likely to take any important constitutional cases, under the Second Amendment or otherwise, until the deadlock is broken.  This fact highlights the already salient significance of this November’s presidential election, which will determine, among a great many other important matters, how the Court eventually shapes Second Amendment doctrine.