Read on Twitter
SO… How does the Supreme Court actually decide hard, blockbuster cases—the ones that divide America—like cases about DACA, abortion, or the Trump financial subpoenas?
The answer may surprise you, because it’s not a theory you’ve heard of before.
A thread:
The answer may surprise you, because it’s not a theory you’ve heard of before.
A thread:
You’re probably familiar w/ the usual suspects. We’re often told the Court decides cases using originalism, living constitutionalism, pluralism, and so on. And in lots of cases, that’s right!
But those theories have a problem. They fail to explain a LOT of major decisions. 2/17
But those theories have a problem. They fail to explain a LOT of major decisions. 2/17
As I describe in a new article in @CalifLRev & up on SSRN ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689259), just last term the Court decided at least 3 major constitutional cases that can’t be accounted for via the usual theories. Instead, the Court relied on a very different kind of argument: 3/17
The Court asked, which group—if it loses the case—will be best able to avoid the harms it would suffer as a result? In each case, the Court ruled against the best harm avoider. I call this approach “Harm-Avoider Constitutionalism.” And it explains a surprising # of big cases.4/17
Start, for example, w/ the Trump subpoena disputes. In Mazars, the Court vacated lower ct rulings allowing the House to subpoena Trump’s financial records. The Court didn’t even try to use originalism, living constitutionalism, or other common theories. 5/17
Instead, the Court ruled against the House insofar as it, not the President, had stronger options for avoiding the harm of defeat. In particular, the House might avoid harm to its legislative process by using narrower subpoenas or targeting other sources. 6/17
The Court held that the opposite was true in Vance, the other subpoena case. There, the President had stronger avoidance options than New York prosecutors: namely, the President could use state law protections against overbroad subpoenas & special constitutional challenges. 7/17
By contrast, the Court explained there’s nothing NY could do to pursue justice if its subpoenas are blocked; that evidence is gone & guilty persons may walk. The president is the better harm-avoider, so that’s why he loses in Vance—not originalism, etc. 8/17
Or take June Medical, last term’s big abortion case striking down Louisiana’s admitting privileges law. Why? B/c women (& doctors) would have a far harder time avoiding their harms if they lose. The law would require women to drive up to 20 hours for the procedure . . . 9/17
and the doctors couldn’t avoid being shut down just by trying harder to get privileges. Louisiana, in contrast, had an easy way to protect maternal health just as well: by enforcing existing medical regs. The state lost, in other words, b/c it was the better harm-avoider. 10/17
Harm-avoider reasoning explains some non-constitutional cases, too. In the DACA case, the Court recognized that its narrow ruling against the Trump administration would leave it an easy route for avoiding its harm: it could revoke DACA w/ a more reasoned explanation. 11/17
Hundreds of thousands of dreamers, by contrast, would be in unavoidable limbo had the Administration’s original, poorly-reasoned rescission been allowed to go into effect. 12/17
I’ll spare you more examples (which can be found @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689259), but suffice to say that harm-avoider constitutionalism isn’t just a 2020 thing. The Court has used it in hard cases across a range of doctrinal areas over a lengthy period of time. 13/17
What does this all mean? If I’m right that this is what the Court’s doing (even if it hasn’t clearly acknowledged or announced it), we should ask whether harm-avoider constitutionalism is a *good* way to resolve hard cases. I share thoughts on why it might be in the paper. 14/17
It also suggests we should take more seriously the idea of moving past the usual first-order question in constitutional cases, i.e., what is the one-and-only “meaning” or correct application of our venerable Constitution in the context of some complex, modern problem. 15/17
If the Court itself recognizes that sometimes the answers are unknowable, and decides instead based on a second-order consideration like ruling against the best harm-avoider (thus producing the least harm in the long run), we should be open to that answer ourselves. 16/17
In this respect, my article works in tandem w/ @UVALaw’s dynamic duo of @cbarzun & @profmikegilbert, who’ve penned a closely related piece ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3586834), to suggest an emerging “second-order turn” in constitutional law. 17/17
