Compelling Interests and Contraception

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to federal laws requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices asserted that the government has compelling interests in ensuring employees access to contraception, but did not discuss those interests in any detail. In what follows, we clarify those interests by connecting discussion in the Hobby Lobby opinions and the federal government’s briefs to related cases on compelling interests and individual rights in the areas of race and sex equality. The government’s compelling interests, we argue, are best understood from within two horizons: they encompass not only core concerns of the community in promoting public health and facilitating women’s integration in the workplace, but also crucial concerns of the employees who are the intended beneficiaries of federal law’s contraceptive coverage requirement—interests that sound in bodily integrity, personal autonomy, and equal citizenship. Further, as we show, a full accounting of the government’s compelling interests attends both to their material and expressive dimensions. This more comprehensive account of the government’s compelling interests in providing employees access to contraception matters both in political debate and in RFRA litigation as courts determine whether the government has pursued its interests by the least restrictive means. The more comprehensive account offered here is less susceptible to compromise and tradeoffs than is an account focused only on material interests in public health and contraceptive cost

Contraception as a Sex Equality Right

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception. In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would decide in the next decade—perhaps even more so. Griswold is conventionally understood to have secured liberty for women. But the right to contraception also secures equality for women, as Ruth Bader Ginsburg saw clearly in the 1970s and as the Court eventually would explain in Planned Parenthood v. Casey

The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, is relatively young by Supreme Court standards (66 years old), is methodologically conventional, and is uniquely reliable. As a consequence, many conservatives love to celebrate him as the ideal Justice, and many liberals love to condemn him as politically driven. However one feels about Justice Alito as a jurist, he is carving out a distinctive role for himself on the Court at a pivotal time. That role and this time should be of interest to people who care about the Court’s work regardless of their ideology. Particularly in light of Justice Scalia’s passing, Justice Alito has become the primary judicial voice of the many millions of Americans who appear to be losing the culture wars, including in battles over gay rights, women’s access to reproductive healthcare, affirmative action, and religious exemptions. Part I observes that Justice Alito relies upon a variety of “modalities” of constitutional interpretation; his conventional methodology distinguishes him only (albeit interestingly) from Justices Scalia and Thomas. Looking elsewhere for what distinguishes Justice Alito from the rest of his colleagues, Part II observes that his tenth year on the Court coincides with a potentially significant moment in American constitutional history. Connecting the moment to the man, Part III examines Justice Alito’s distinctive role, which is most apparent in his majority opinion in Burwell v. Hobby Lobby Stores, Inc. and his dissent in Obergefell v. Hodges. There and elsewhere, Justice Alito voices the concerns of Americans who hold traditionalist conservative beliefs about speech, religion, guns, crime, race, gender, sexuality, and the family. These Americans were previously majorities in the real or imagined past, but they increasingly find themselves in the minority. Part IV considers two alternative characterizations of Justice Alito—one from conservatives (who may view Justice Alito as a Burkean conservative), and the other from liberals (who may view him as a movement conservative). The Conclusion suggests that Justice Alito’s distinctive role will likely be amplified in the years ahead, and identifies questions that follow for his supporters and critics

Collective Action Federalism and Its Discontents

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds. In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for Congress to address the problem by relying on the Commerce Clause. Unlike nationalist defenders of unlimited federal commerce power, a collective action approach does not ask whether the regulated conduct substantially affects interstate commerce in the aggregate. Unlike federalist defenders of limited federal commerce power, a collective action approach does not focus on the distinction between economic and noneconomic conduct, or between regulating and requiring commerce. Accordingly, nationalists may agree that a collective action problem is sufficient for Congress to invoke the Commerce Clause, but they will disagree that it is necessary. By contrast, federalists may agree that a collective action problem is necessary for Congress to invoke the Commerce Clause, but they will disagree that it is sufficient. This Essay anticipates such criticism. Regarding the nationalist critique of a collective action approach, I argue that the nationalist “substantial effects” test imposes no judicially enforceable limits on the scope of the Commerce Clause. I also argue that nationalists may define multistate collective action problems too narrowly. In addition to races to the bottom, collective action problems include interstate externalities that do not cause races to the bottom. Broadening the definition of multistate collective action problems to include interstate externalities gives rise to the federalist objection that every subject Congress might want to address can plausibly be described as a collective action problem. Federalists may further object that the Commerce Clause is limited to “Commerce.” In response, I argue that “Commerce” is best understood broadly to encompass many social interactions outside markets, as Professors Jack Balkin and Akhil Amar have urged. I also argue that a collective action approach need not validate unlimited federal commerce power. Specifically, I identify three ways of limiting the kinds of interstate externalities that justify use of the Commerce Clause

Jack Balkin’s Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.” Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — the pervasiveness of constitutional change can undermine self-confidence about one’s own constitutional convictions. Such self-confidence underwrites effective advocacy in the present. Historicism teaches that, time and again, many right-thinking people were wrong notwithstanding their certainty that they were right. This knowledge, which encourages consciousness of one’s own consciousness, may cause those of us who suffer from “modernist anxiety” to question why we should be so sure we are right today. Reasoning from the individual perspective, Balkin provides a persuasive, if imperfect, account of the importance of the constitutional text in the American tradition. But Balkin does not seem to register the potential consequences of turning to “originalism” following decades in which the term has been associated in public debates with a conservative political practice, and when conservatives control the federal judiciary. A progressive declaration in 2012 that “we are all originalists now” would risk lending unintended support to the ongoing fruits of conservative originalism, including an unsettling of the New Deal Settlement, the Second Reconstruction, and more. Such a development would be troubling not only from the perspective of progressive constitutionalists, but also from the perspective of the constitutional system. Conservative politicians and judges, who may either misunderstand Balkin or wish to repurpose him (as Balkin seeks to repurpose originalism), might use a progressive embrace of Balkin’s very thin version of originalism to throw everyone into an easily caricatured originalist camp. That misappropriation, in turn, might undermine the diversity of constitutional opinion that exists in fact and that secures the legitimacy of the system as a whole

Collective Action Federalism and Its Discontents

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds. In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for Congress to address the problem by relying on the Commerce Clause. Unlike nationalist defenders of unlimited federal commerce power, a collective action approach does not ask whether the regulated conduct substantially affects interstate commerce in the aggregate. Unlike federalist defenders of limited federal commerce power, a collective action approach does not focus on the distinction between economic and noneconomic conduct, or between regulating and requiring commerce. Accordingly, nationalists may agree that a collective action problem is sufficient for Congress to invoke the Commerce Clause, but they will disagree that it is necessary. By contrast, federalists may agree that a collective action problem is necessary for Congress to invoke the Commerce Clause, but they will disagree that it is sufficient. This Essay anticipates such criticism. Regarding the nationalist critique of a collective action approach, I argue that the nationalist “substantial effects” test imposes no judicially enforceable limits on the scope of the Commerce Clause. I also argue that nationalists may define multistate collective action problems too narrowly. In addition to races to the bottom, collective action problems include interstate externalities that do not cause races to the bottom. Broadening the definition of multistate collective action problems to include interstate externalities gives rise to the federalist objection that every subject Congress might want to address can plausibly be described as a collective action problem. Federalists may further object that the Commerce Clause is limited to “Commerce.” In response, I argue that “Commerce” is best understood broadly to encompass many social interactions outside markets, as Professors Jack Balkin and Akhil Amar have urged. I also argue that a collective action approach need not validate unlimited federal commerce power. Specifically, I identify three ways of limiting the kinds of interstate externalities that justify use of the Commerce Clause

More Law than Politics: The Chief, the “Mandate,” Legality, and Statesmanship

This chapter in a forthcoming book on NFIB v. Sebelius asks whether the various parts of Chief Justice Roberts’s opinion on the minimum coverage provision are legally justifiable. I focus on what Roberts decided, not why he decided it that way. Law is fully adequate to explain the Chief Justice’s vote to uphold the minimum coverage provision as within the scope of Congress’s tax power. Roberts embraced the soundest constitutional understanding of the Taxing Clause. He also showed fidelity to the law by applying—and not just giving lip service to—the deeply entrenched presumption of constitutionality that judges are supposed to apply when federal laws are challenged on federalism grounds. Robert’s opinion was unpersuasive in concluding that the minimum coverage provision was beyond the scope of the Commerce and Necessary and Proper Clauses. Roberts failed to apply the modern doctrine of “constitutional avoidance,” thereby needlessly deciding these questions. What is more, he decided them wrongly. Fortunately, the doctrinal consequences of this portion of his opinion will likely (although by no means certainly) prove insignificant. In the final part of this chapter, I move from the internal perspective of the faithful legal practitioner to the external perspective of the system analyst. I ask what Roberts may have accomplished in responding to NFIB as he did. By prohibiting Congress from requiring Americans to purchase products against their will, Roberts partially expressed new popular and professional constitutional arguments—arguments developed by those who had mobilized against the prevailing view among legal experts that the minimum coverage provision is constitutional. By upholding the minimum coverage provision under the Taxing Clause, he validated the values of the ACA’s supporters and respected the post-New Deal convention that the Court should uphold momentous social welfare legislation. By partially validating the sincerely held moral beliefs of both sides, Roberts may have succeeded in sustaining some measure of social solidarity amidst intense disagreement over health care reform, thereby enhancing the public legitimacy of constitutional law. Roberts may or may not have intended to practice judicial statesmanship, and his statesmanship may not be enough to justify his contradictions of sound legal reasoning. But statesmanship probably provides the most persuasive way to try to justify his analyses of the Commerce and Necessary and Proper Clauses. Such a defense, however, would require the application of criteria that are difficult to justify as legal from the internal point of view

Foreword

The articles published in this volume of Law and Contemporary Problems address the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA), either directly or indirectly. They were originally presented at a conference at Duke Law School on September 16, 2011. Entitled “The Constitutionality of the Affordable Care Act: Ideas from the Academy,” the conference was inspired by the belief that legal academics who specialize in U.S. constitutional law, health law and policy, or statutory interpretation are making distinctive contributions to the national debate over the constitutionality of the ACA. These legal academics are less constrained by their clients or their offices than are other legal actors, they are blessed with the time to study constitutional doctrine or health law for a living, and they often possess interdisciplinary expertise that is pertinent to the proper resolution of legal problems. To be sure, these characteristics can be vices when exhibited in the practice of constitutional adjudication—particularly if creative impulses and theoretical ambitions are undisciplined by the necessity of deciding particular cases soundly. But these attributes can be virtues as well. Among many other activities, legal academics conduct original historical research, perceive connections among constitutional doctrines or provisions that have previously gone unnoticed, use relevant methods or insights of other disciplines to shed light on legal problems, and bring to bear their specialized legal knowledge to help courts of general jurisdiction decide between the clientcentered arguments of generalist appellate lawyers. These contributions can be relevant to the outcome of constitutional and statutory cases. This may help to explain why the Justices routinely cite the work of legal academics. Both the data and casual empiricism attest to the real-world relevance of much legal academic writing. Contributors to the volume include Stuart Benjamin, Joseph Blocher, Erwin Chemerinsky, Mark Hall, Bryan Leitch, Theodore Ruger, Stephen Sachs, Neil Siegel, Ilya Somin, and Ernest Young

A Coase Theorem for Constitutional Theory

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again. Despite its many virtues, certain aspects of The Will of the People give me pause. For one thing, I fear that the book may fail to fully register the power and potential influence of the particular individuals who sit on the Supreme Court at a given time. If law professors and political scientists may become “so fascinated by the Court as political actor that they [forget] that it is also acted upon politically,” Friedman’s project may be vulnerable to the opposite criticism. That is, the book may under appreciate the capacity of the Justices to shape social values or otherwise to decide important matters effectively with finality. For another thing, even if I am wrong about the Court’s potential efficacy as a political actor, there remains reason for skepticism that the book has tamed the countermajoritarian difficulty, at least when the problem is framed properly. Part I of this essay summarizes Friedman’s main thesis, including his implicit suggestion that the present composition of the Court matters much less than is commonly believed—and may not even matter much at all. Part II offers some reasons to doubt that the substantive visions of the Justices themselves are as relatively inconsequential as Friedman seems to believe. Part III explains why the countermajoritarian difficulty endures even in the wake of Friedman’s formidable contribution

None of the Laws But One

This Symposium contribution explores differences in how congressional Republicans responded to Medicare and how they responded to the Patient Protection and Affordable Care Act (ACA). Given the narrowness of the constitutional challenges to the ACA that congressional Republicans promoted and the many federal taxes, expenditures, and regulations that they support, this Article rejects the suggestion that today\u27s Republicans in Congress generally possess a narrow view of the constitutional scope of federal power. The Article instead argues that congressional Republicans then and now-and the two parties in Congress today-fracture less over the constitutional expanse of congressional authority and more over the political objectives that robust federal power will be used to accomplish. Accordingly, the key question going forward is not one of perceived constitutional limits on Congress, but whether the federal government will expand or even maintain its role in combating economic vulnerability, a role that President Lyndon Johnson\u27s Great Society performed to a significant extent by transforming America from a regulatory state to a welfare state