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.

Non-elite law schools in the 21st century: the business school model

I’ve had occasion to do a lot of thinking lately about the future of American law schools, particularly the vast majority of them that can’t be considered “elite” schools.

It’s old news that times have been tough in American legal education over the past six or seven years.  Almost every non-elite American law school is now tuition-driven, relying primarily on its own tuition revenues for its operating expenses.  And at most of these schools, the vast majority of tuition is generated by the JD program.  But this model is under heavy strain, thanks to a confluence of factors including heightened competition among law schools, declining JD enrollments, and increasing operating costs.  Some of these trends may ease somewhat over time, but none is likely to reverse course in the foreseeable future.

The most salient trend is declining demand for legal education.  Applications to U.S. law schools have plummeted since 2010 and are only now beginning to level off at less than two-thirds of the 2010 volume.  Most law schools have had to respond by reducing enrollment, admitting students with lower credentials, or both.  The former strategy has a severe impact on a law school’s budget, while the latter harms bar-passage and employment rates.

In light of these developments, how can American law schools thrive – indeed survive – over the next several decades?  Most of them, I believe, will have to pursue one or more of four strategies.

A few elite schools will prosper simply because they are elite and demand for their degrees therefore will remain high.  Clearly this path is not open to most of the more than 200 ABA-accredited institutions.

A handful of schools will cultivate a market niche that saliently distinguishes them from the competition.  But while schools can and should develop distinctive programs, there are relatively few specialty areas that are both prominent enough to attract large numbers of students and stable enough to withstand changing market conditions.

A few other law schools will respond by drastically lowering JD admissions standards, admitting most or all applicants who are willing to pay.  This path, however, is both ethically problematic and likely to be foreclosed by anticipated ABA or federal government regulations measuring outcomes such as bar-passage rates.

The large majority of non-elite American law schools, then, will have one basic strategy for success in the twenty-first century marketplace, the particulars of which will vary substantially from school to school.  I will call this strategy the “business school model.”  Compared to law schools, most U.S. business schools are more closely integrated with their parent universities; they are more innovative in the educational products they provide and in how they deliver them; and they are more diversified in the array of degrees and other academic products they offer.  Non-elite American law schools, I believe, will have to become more like business schools in these respects to thrive in the twenty-first century.

Integration.  To prosper in the coming decades, those few law schools that are not yet embedded within a university should seek to do so, and embedded law schools should look to enhance connections with their universities in creative ways.  Close integration with a parent institution is advantageous, financially and otherwise, particularly in perilous economic times.  Closely integrated law schools can cut costs by sharing administrative and instructional functions with their parent universities and by piggybacking on university marketing, technology, foreign programs, and other assets.  They can offer a broader spectrum of academic options to their students and take advantage of a built-in college-to-law-school pipeline.  And with the university’s resources as a backstop, they typically have greater leeway to adjust or retool in response to changing market conditions.

Innovation.  Law schools will need to embrace innovation in order to thrive in the years ahead.  On the revenue side, American law schools must develop new products to sell (more on this below) and must penetrate new markets for their products, particularly overseas.  On the cost side, law schools must readily take advantage of advancing technology to deliver their products more cheaply.  For example, within a decade or so it will be feasible to have a quality law-school classroom experience in an all-digital environment.  Adopting this technology when it arrives will allow law schools to substantially reduce a significant component of their costs (in the form of bricks-and-mortar classroom facilities) and to enroll students with only limited regard for geographic limitations.  Early adopters will have a substantial market advantage.

Diversification.  Increasingly, non-elite law schools will succeed by diversifying the array of educational products they offer.  While the cost-benefit analysis will differ from school to school and from program to program, it is likely that most law schools can enlarge their tuition revenues in a cost-effective way by offering alternatives to the expensive, all-or-nothing JD.  Law schools should look for opportunities to add nontraditional degree programs that are tailored to regional demand, that leverage existing expertise and capacity where possible, and that take full advantage of synergies with the parent university.  These might include undergraduate degree programs, joint degree programs, graduate programs in non-law fields with close affinities to law (such as public policy), and perhaps limited license legal technician programs like the one currently being piloted in Washington State.

As always, I welcome your thoughts.

The "gainful employment rule" and nonprofit law schools

Today the New York Times published an editorial calling for the federal government to apply the "gainful employment rule" (GER) to all law schools, not just the for-profit schools to which the GER currently applies.  The GER requires that schools whose students receive certain federal tuition loans demonstrate that their graduates are achieving "gainful employment."  Gainful employment is measured by comparing graduates' debt burden to their annual income.  Under the GER, "a program would be considered to lead to gainful employment if the estimated annual loan payment of a typical graduate does not exceed 20 percent of his or her discretionary income or 8 percent of his or her total earnings."  (This quote comes from the Obama administration's press release announcing the policy.)  As that press release notes, "[p]rograms that exceed these levels would be at risk of losing their ability to participate in taxpayer-funded federal student aid programs" -- that is, their students would not be eligible for federal loans.

The basic idea behind the GER makes sense.  Without the GER, schools have an incentive to sell more education, at higher prices, without worrying about the market value of that education to the students who are purchasing it.  Government tuition loans increase demand for higher education in the same way home loans increase demand for nonrental housing:  they make it possible to purchase the product for the large majority of people who cannot pay for it in cash.  This increased demand creates an incentive for the seller (the school) to provide more of the product (that is, to admit more students) and to charge a higher price for it.  And, since the costs of the loans are born, not by the schools, but by the students (in the form of interest) and the lenders (in the form of default costs), there is no countervailing incentive for the schools to reduce their tuition (thus reducing the amount of interest students pay) or limit the supply of their product (thus reducing competition among holders of JDs, increasing the chances that any given graduate will get a job, and reducing loan default rates).  The GER supplies these countervailing incentives, giving schools a powerful reason to control costs (as a way of limiting student indebtedness) and to limit supply (as a way of increasing each graduate's chance of gainful employment).

Applying the GER to for-profit law schools is necessary -- inarguably so, it seems to me.  Because they are almost entirely market-driven -- their need to satisfy accrediting organizations (principally the ABA) being the only significant exception -- for-profit schools have very weak existing incentives to control costs or limit supply.  Theoretically the market itself would provide these incentives:  prospective students would not be willing to go deeply into debt in return for a relatively low chance at a decent-paying legal job, which is what graduates of for-profit schools typically face.  But information asymmetry (applicants to law school typically have less relevant information than the law schools themselves), cognitive biases, the difficulty of predicting where the market will be in three years when students will graduate, and the relatively cheap and forgiving terms of federal loans combine to distort the normal laws of supply and demand.  Many students whose prospects of gainful legal employment are dim continue to take out loans and apply to law schools, and without the GER these for-profit schools would continue to admit them in droves.

It's somewhat less clear whether the GER should apply to nonprofit law schools, which make up the vast majority of American law schools.  At least in theory -- and in my experience, in practice as well -- nonprofit law schools take seriously their status as holders of a public trust and thus at least attempt to behave in a way that is not entirely market-driven.  They consider, for example, the impact on the legal system of graduating large numbers of lawyers and saddling many of them with huge debt.  Indeed, many nonprofit law schools are public law schools, whose tuition typically is controlled by a state legislature, a public higher-education system, or some other public body.  And (at least in theory) these public decisionmaking bodies take the public interest into account in deciding how much tuition public law schools should charge.

In practice, however, the market inevitably intrudes in the decisionmaking processes of nonprofit law schools in a significant way.  Law schools have employees whose jobs and salaries depend on the economic viability of the institution.  Reducing tuition or class size means reducing the revenue available to pay these employees, requiring pay cuts or lost jobs.  (This point, by the way, often is obscured in discussions of legal education, and we ought to keep it in mind:  jobs are in fact at stake.)  It is difficult for law school deans, who themselves typically are members of the faculty, to make decisions with these drastic consequences.  At many law schools, moreover, deans cannot make enrollment or tuition decisions unilaterally:  the faculty itself often must consent (or at least advise) on enrollment, and as I mentioned above public law-school tuition often is set at the university or state level.  The fact that most faculty at most law schools are tenured complicates things further, by reducing a school's flexibility regarding the size of its work force.

These realities mean that nonprofit law schools are subject to some of the same incentives as for-profit schools:  to raise (or at least not to lower) tuition, to sell more degrees even if the legal-services market cannot support them.  Applying the GER to nonprofit law schools would countervail these incentives, probably forcing many or most of these schools to reduce their class sizes significantly and perhaps to cut tuition as well.  All else being equal, this would be a good thing for prospective law students, for the legal system, and for the taxpayers who foot the bill when students default on their federal loans.

But, as I suggested above, all else is not necessarily equal:  there would be costs as well as benefits to applying the GER to all law schools.  Significantly reducing tuition revenues means reducing operating expenses, and the largest operating expense for any law school by far is the personnel budget.  If the GER is applied to all law schools, faculty and staff salaries will be cut and people, inevitably, will be bought out or laid off or outright fired, perhaps in large numbers.  Some law schools might close altogether.  (This blog post, linked from the Times editorial, suggests that at least fifty nonprofit American law schools would fail to satisfy the GER if it were applied to them today.)  It may or may not be the case that laying off law school faculty and staff is better, as a public policy outcome, than continuing to sell many law students expensive degrees that they can't really use.  But at least we need to recognize that there is a significant tradeoff here.

We also need to recognize that there is a correlation, if far from a perfect one, between the cost of legal education and the quality of legal education.  As I discussed in an earlier post, many of the increased costs of legal (and other higher) education in recent years can be explained by very good reasons.  Law schools must hire staff to administer Americans with Disabilities Act requirements, for example, and must increase the experiential learning opportunities available to their students (which often means expanding resource-intensive live-client clinics) to comply with ABA mandates.  Law schools must employ academic support staff to enhance the success rates of students who are not well prepared when they enter law school -- not just students from underprivileged or nontraditional backgrounds but, increasingly, students from traditional backgrounds as well.  Law schools must employ career services professionals to help their students find gainful employment when they graduate.  And of course law schools must recruit and retain excellent full-time teachers who will not be distracted from their mission of education and scholarship by the need to make extra money practicing law on the side.

All of these expenditures benefit a law school's students and the legal system generally.  I think it's too early to tell what effects applying the GER to all law schools would have on these priorities, but it's at least far from clear that the effects would be entirely benign.  Which is to say that while the Times certainly is correct that the availability of cheap federally backed student loans distorts some of the key incentives in legal education, it's not obvious that the cure the Times recommends wouldn't be worse than the disease.  We simply need more data and more discussion on that question.

One final point.  The Times editorial correctly notes that there are large swaths of legal-services needs going unmet or undermet in the current system; for example, "millions of poor and lower-income Americans remain desperate for quality legal representation."  (I discussed this problem at some length in an earlier post.)  Applying the GER to all law schools would do nothing to solve this enormous social problem and might even exacerbate it:  the average annual income figures used by the GER to determine "gainful employment" are likely to be driven downward if large numbers of a school's graduates take lower-paying public-interest jobs, thus increasing the chance that the school will become ineligible for government loans.  The Times suggests providing more federal funding for legal services organizations, which would be a good start -- it would better serve the public and also create more jobs for public-service-oriented law graduates.  An even more focused solution might be to shift some federal money from general student loans (like those to which the GER applies) to public-interest grants.  Currently the Public Service Loan Forgiveness program forgives federal loans for some students who take government or nonprofit jobs when they graduate.  It might make sense to consider funding, not just loan forgiveness for students after they graduate, but also up-front tuition grants for current or prospective students who will commit to practicing in the public interest for a period of time when they earn their degrees.