#and she just would not hold the conservative justices accountable. her and kagan are way too placating

[anotherpapercut]

the girlbossification of ruth bader ginsburg has to be one of the most just plain annoying aspects of white liberal feminism. like it's not as actively harmful as a lot of other shit obviously. but it is soooooo annoying. if I never see another notorious rbg tote bag as long as I live it will be too soon

[maxwellyjordan]

A “view” from the courtroom: “Strong feelings” in the latest abortion case

The court has just one case today to close out the argument portion of the February sitting, but it’s a big one.

In June Medical Services LLC v. Russo, the justices will consider whether Louisiana’s law requiring abortion doctors to have admitting privileges at nearby hospitals conflicts with the court’s decision just four years ago in Whole Woman’s Health v. Hellerstedt striking down a similar law in Texas. There is also the cross-petition from Louisiana about whether abortion providers have third-party standing to challenge health and safety regulations on behalf of their patients.

Today, virtually every seat in the courtroom will be filled, which doesn’t always happen even in some blockbuster cases.

Bird’s eye view of the courtroom during argument in June Medical Services v. Russo (Art Lien)

In the public gallery, Kathaleen Pittman, the director of the Hope Medical Group for Women clinic in Shreveport, which is owned by June Medical, is here. Nancy Northrup, the president and CEO of the Center for Reproductive Rights, which represents the clinic, is here, as is Amy Metzler Ritter, the chair of CRR.

Amy Hagstrom-Miller, the CEO of Whole Woman’s Health, the consortium of health care and abortion clinics at the center of the Texas case, is also here.

I was told by CRR that none of the several doctors identified in court papers as “Doe” would be in attendance today. Their particular circumstances with respect to the admitting-privileges requirement will be the subject of numerous questions.

At the south end of the front row of the public section sit two U.S. senators who have evidently taken up Chief Justice John Roberts’ invitation to attend a session of the court. One is Sen. Bill Cassidy, a Republican from Louisiana who is trained as a physician. He is among the 207 members of Congress who signed an amicus brief in support of Louisiana organized by Americans United for Life, a prominent anti-abortion group.

The other is Sen. Richard Blumenthal, Democrat of Connecticut, who is among 197 different members of Congress who signed a brief in support of the challengers. The difference in the number of signers of the competing briefs probably does not carry any great weight with the justices.

In the bar section, there is a contingent from the American Civil Liberties Union, including Louise Melling, the deputy director and director of its Center for Liberty, which oversees abortion rights and other issues. Also in the courtroom today is Ilyse Hogue, the president of the National Abortion Rights Action League.

At the counsel table on the left, Julie Rikelman of CRR, who will argue for June Medical Services, arrives with her co-counsel, including Travis Tu of CRR and Jeffrey Fisher of Stanford Law School and O’Melveny & Myers.

Meanwhile, the Louisiana entourage arrives to defend the state’s law, including Louisiana Attorney General Jeff Landry and Solicitor General Elizabeth Murrill, who will argue the case. They are joined in the bar section by U.S. Rep. Mike Johnson, a Republican from Louisiana’s 4th district, who will video tweet afterwards to say that he helped defend the law in the federal district court before being elected to Congress in 2016 from the district that includes Shreveport.

Abortion clinics in the Shreveport, Baton Rouge and New Orleans areas are the focus of this litigation, but because Hope Medical Clinic is in Shreveport, there is a bit more attention on that medium-sized city.

This might be a good place to mention that your reporter once lived in Shreveport, which is in northwest Louisiana and might be said to have more in common with button-down Dallas and conservative East Texas than it does with the “laissez les bon temps rouler” vibe of New Orleans and southern Louisiana. This Chicago native was a bit of a fish out of water in that sleepy burg. I’ll put it this way. Seemingly right after I left after two years at a newspaper job there, the region gained two, um, cultural innovations that would have made it a more interesting place to live: a minor league hockey franchise and riverboat gambling. Also, somewhat improbably, the area became one of those non-Hollywood film production locations, so you might occasionally read that one star or another was arrested in a local bar fight “while he was filming a movie in Shreveport.”

Among the representatives of groups supporting the Louisiana law here today are Steven Aden and Clark Forsythe of Americans United for Life and Jordan Lorence and John Bursch of the Alliance Defending Freedom.

Just 10 minutes before the start of court, Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, arrives and takes her seat in the VIP section. She is soon followed by Joanna Breyer, the wife of Justice Stephen Breyer, and Jane Roberts, the wife of the chief justice.

Top court officers also fill most of the seats reserved for them. But retired Justice Anthony Kennedy, who provided the crucial fifth vote for striking down the Texas regulations in Whole Woman’s Health, is not in the courtroom today.

As the argument proceeds, demonstrators on both sides of the abortion issue are holding their competing rallies on the sidewalk outside the court. No one inside the courtroom is aware of the contretemps that Sen. Charles Schumer of New York, the Democratic leader, is evidently causing with his remarks to the abortion rights demonstrators, which will later elicit a public response from the chief justice.

Amy Howe has this blog’s main account of the hourlong argument.

Just minutes into Rikelman’s presentation on behalf of June Medical Services, a cellphone chime goes off, followed by a bell. The culprit is not evident, though it does not appear to be a member of the court. Whenever I appear before a student group or others to discuss the court, I mention the time in 2017 when Breyer inadvertently brought his phone into the courtroom and, of course, it rang. The students whose phones have long been regulated in school really identify with the justice.

When the mystery phone isn’t pinging and chiming, as it does a couple more times throughout the hour, there are two distinct vibes to the argument. One revolves around the fact that the newest members of the court are facing their first argument in an abortion case. Justice Neil Gorsuch does not ask a single question. Kavanaugh, meanwhile, has quite a few.

“Are you saying that admitting privileges laws are always unconstitutional, such that we don’t have to look at the facts state by state?” he asks Rikelman. “Or are you saying that actually you do look at the facts state by state, and in some states, admitting privileges laws could be constitutional, if they impose no burdens?”

She holds her ground in several variations of the question, maintaining that such laws serve no valid state interest.

Kavanaugh asks five questions of Rikelman, one of Principal Deputy Solicitor General Jeffrey Wall, who is arguing on behalf of the U.S. government in support of Louisiana, and none of Murrill.

For the other members of the court, the vibe is that positions are well staked out on this divisive issue.

Justice Samuel Alito, a member of the minority in Whole Woman’s Health, sharply questions Rikelman on the third-party standing of the abortion providers, finding several of her answers “amazing” or “highly debatable.”

Roberts asks a question (Art Lien)

As for the other dissenters in Whole Woman’s Health, Justice Clarence Thomas is silent as usual while Roberts asks questions that will be highly scrutinized but don’t seem to reveal his views.

“Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed state-by-state?” he asks of Rikelman. He poses a variation of that question to both Murrill and Wall.

“[W]hy do you look at each state differently if the benefits of the law—they’re not going to change from state-to-state?” the chief asks Wall.

The remaining members of the majority in Whole Woman’s Health—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—each have vigorous questions that show their skepticism of the Louisiana law’s constitutionality.

Ginsburg ponders the issue at hand (Art Lien)

Ginsburg gets a laugh when she asks Rikelman a friendly question about Craig v. Boren, a 1976 case involving disparate legal drinking ages for young men and women, in which she filed an amicus brief when she was with the ACLU. The decision helps bolster the abortion providers’ third-party standing claim.

“You made a point about Craig versus Boren, that the ostensible purpose of the law was to save the vulnerable young men from the evils of 3.2 beer?” Ginsburg says.

“That’s correct, your honor, and the court allowed the saloon keeper to bring the third-party standing claim,” Rikelman says.

Ginsburg seeks repeatedly to knock the state’s rationales for its admitting-privileges requirements.

“Is it not the fact that most hospitals in Louisiana, in order to get admitting privileges, you have to admit a certain number of patients?” she asks Murrill. “Abortion providers will never, … if they’re not also doing obstetrics and gynecology, they will never qualify because their patients don’t go to the hospital.”

Breyer, who wrote the majority opinion in Whole Woman’s Health, has an exchange with Wall late in the argument that seems to summarize the ideological gridlock over abortion rights.

“How do you deal with this?” Breyer asks Wall. “I have read the briefs. I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong.”

“And in [Planned Parenthood of Southeastern Pennsylvania v.] Casey, and the later cases,” he adds, “I think personally the court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.”

When the argument is over, the clinic director, the advocates and the politicians make their way quickly to the court’s plaza to address the media, and then to the wide sidewalk, where “both sides” of this intractable issue hold their loud, competing rallies.

The post A “view” from the courtroom: “Strong feelings” in the latest abortion case appeared first on SCOTUSblog.

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[theconservativebrief]

Tonight, at 9 pm Eastern, President Donald Trump will announce his pick to replace Justice Anthony Kennedy on the Supreme Court. Will it be Brett Kavanaugh, beloved by establishment Republicans for his rulings against the Affordable Care Act? Amy Coney Barrett, whose Catholic faith and uncompromising social conservatism have made her a favorite among Christian conservatives? Raymond Kethledge, an outdoorsman who managed to charm Trump in his interview?

Which judge Trump chooses is less meaningful than the fact that Trump is choosing a second justice at all. The first seat Trump filled opened under Barack Obama, but Senate Republicans refused to consider any replacements, hoping to win the 2016 election and see the seat filled by a Republican. Mitch McConnell’s bet paid off: Trump did win that election, though he lost the popular vote decisively, and Neil Gorsuch was named to the Court.

Such appointments are becoming the norm. With Kennedy’s replacement, four out of the Supreme Court’s nine justices — all of whom have lifetime tenure — will have been nominated by presidents who won the White House, at least initially, despite losing the popular vote.

There’s nothing necessarily wrong with that. America, for all its proud democratic rhetoric, is not actually a democracy. Until and unless the country chooses to abolish the Electoral College, it will remain not-quite-a-democracy, with all the strange outcomes that entails. Liberals may complain, but the rules are the rules, and both sides know what they are.

But the Supreme Court’s conservative bloc doesn’t just reflect the outcomes of America’s undemocratic electoral rules; it is writing and, in some cases, rewriting them, to favor the Republican Party — making it easier to suppress votes, simpler for corporations and billionaires to buy elections, and legal for incumbents to gerrymander districts to protect and enhance their majorities.

The Supreme Court has always been undemocratic. What it’s becoming is something more dangerous: anti-democratic.

Is it? Zach Gibson/Getty Images

Dahlia Lithwick, Slate’s legal analyst, has been covering the Supreme Court for 20 years. She’s the smartest and most humane Court-watcher I know. And she sounds depressed.

“This was the worst year I can remember for voting rights,” she told me. “Folks who are going to go to the polls in 2020 and 2022 and going forward will have even less political power than they had. This conservative, five-justice bloc is distorting electoral politics to make it even harder to be represented.” (You can hear our whole conversation here, or by subscribing to my podcast.)

What we’re seeing here is an alliance, not a coincidence. Republicans won the White House and the Senate, used that power to appoint judges to the Supreme Court, and the judges they vetted and elevated are making it easier for their patrons to retain power in the future.

Yes, that’s a grim, cynical analysis. But is it wrong? Consider some of the decisions the Court made just this term:

In a 5-4, party-line opinion, the Court upheld Ohio’s voter purge, which controversially strikes voters from the rolls if they don’t vote for two years and then fail to respond to a mailed questionnaire or vote in another election for four years.

Though the policy was tied up in legal battles during the 2016 election, in 2012, 1.5 million Ohioans were mailed the questionnaires that could lead to them being purged, and more than 1 million failed to respond. To put that in perspective, Trump’s 2016 margin in Ohio was 446,841 votes, and Obama’s 2012 margin was merely 166,214 votes.

(The Court’s endorsement of Ohio’s law is expected to reverberate far beyond the Buckeye State. “At least a dozen other politically conservative states said they would adopt a similar practice if Ohio prevailed,” NBC News reported.)

In another 5-4 case, the Court largely refused to strike down a series of racial gerrymanders in Texas that a San Antonio district court said denied Latinos “their opportunity to elect a candidate of their choice.” Justice Sonia Sotomayor’s dissent was blistering. “This disregard of both precedent and fact comes at serious costs to our democracy,” she wrote. “It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process.”

If you read the majority opinions in the above cases, you’ll see the Court’s Republican Justices repeatedly suggesting they need to ignore a plethora of relevant facts, comments, and history in order to give due deference to federal and state legislators. That deference dissolved in the Janus case, where the Court’s five Republicans joined to overrule a 1977 Supreme Court opinion, as well as the laws on the books in 22 states, to gut a key funding source for public-sector unions. The decision weakens a powerful Democratic interest group, which is one reason Republicans have fought so hard, for so long, for a ruling like this. The Court, wrote Justice Elena Kagan in an angry dissent, has become “black-robed rulers overriding citizens’ choices.”

The Court refused to set limits on even extreme cases of partisan gerrymandering, sending multiple gerrymandering cases back down to lower courts, at least for now. These rulings were more technical, and less partisan, but they dashed the hopes of those who believed the Court might finally step in to set limits on how aggressively politicians could choose their voters and harden their majorities. Though the Court held open the possibility of revisiting this issue if brought to them in another way, since Kennedy was the key swing vote, the future of these challenges looks grim.

And, again, these are just cases from the last term. A fuller accounting of the Court’s electoral interventions would include the 2000 Bush v. Gore case (which Justice David Souter believed so “crudely partisan” a decision he considered resigning); the constellation of decisions emanating from Citizens United, which have allowed corporations and billionaires to dump literally unlimited amounts of money into elections; and the 2013 gutting of crucial provisions of the Voting Rights Act, which has already had disturbing consequences.

“Whatever mythology existed around the idea that the Court wasn’t pure power and pure winners and losers is gone,” says Lithwick.

All this is coming in the context of a political system that is becoming less and less representative of public opinion. Since 2000, 40 percent of presidential elections have been won by the loser of the popular vote; the Senate, due to its small-state bias, has a Republican majority despite the fact that more Americans voted for Senate Democrats in 2016 than Senate Republicans; and in the House, due to both gerrymandering and geography, Democrats are projected to need to win the popular vote by around 7 points (or as much as 11 points) to take back control of the chamber.

Donald Trump and his wife Melania Trump cast their votes on Election Day. Trump lost the popular vote by nearly 3 million ballots, but won the White House anyway. Chip Somodevilla/Getty Images

Demographers project American politics will become even less democratic in the coming years. By 2040, 70 percent of Americans are expected to be represented by a mere 30 senators, which means 30 percent of the population will control a 70-vote supermajority in the Senate, which could well lead to more bare-knuckle brawls over Supreme Court seats, like Mitch McConnell’s refusal to even consider Merrick Garland.

The Supreme Court is meant to be insulated from democracy. It’s not meant to be a partisan tool for undermining democracy. What’s emerging now is a dangerous loop, in which Republicans barely holding onto power manage to keep control of the Supreme Court by any means necessary, and in return, the Supreme Court’s Republican appointees issue rulings to help their party cling to political power.

In the long term, that’s bad for the country’s unity and the Court’s legitimacy. Already, frustrated liberals are beginning to discuss packing the Court — after McConnell’s refusal to give Merrick Garland a hearing, it’s hard to argue that there are any norms or limits left on the war for judicial power. And even those most invested in the Court’s grandeur are finding it hard to defend its reality.

“One of the paradoxes that I always noticed in the Supreme Court press corps,” says Lithwick, “was we do believe this fiction that the Court is completely apolitical — except that we don’t, because we are careful to say ‘appointed by a Republican.’ We live on the seam of the two realities. We really do believe in order to do our jobs that what the Court does is different from raw politics. And yet we’re not stupid. We were there for Bush v. Gore. We know how this shakes out.”

“At what point,” she continued, “do I throw up my hands and say, ‘Okay, let’s do away with lifetime tenure, because this whole thing is pointless?’ In which case, I should just be a White House correspondent, right?”

Further listening: Dahlia Lithwick discusses the future of the Supreme Court with Ezra Klein:

Listen here, or subscribe to the Ezra Klein Show wherever you get your podcasts.

Original Source -> The Supreme Court vs. democracy

via The Conservative Brief

[maxwellyjordan]

Argument analysis: The familiar yet fresh debate in Franchise Tax Board of California v. Hyatt

Federal courts aficionados have been looking forward to the oral argument in Franchise Tax Board of California v. Hyatt, and the event did not disappoint. The question was whether to overrule the decades-old precedent Nevada v. Hall, which held that states lack sovereign immunity in one another’s courts. The argument largely broke down according to familiar ideological lines, but the discussion still had verve and creativity, in part thanks to the performances of veteran advocates Seth Waxman and Erwin Chemerinsky. The justices’ engagement may also reflect that this case has become a repeat visitor at the Supreme Court. For example, Justice Stephen Breyer noted that he was so familiar with the relevant historical sources “because we had this case before.”

Erwin Chemerinsky for respondent (Art Lien)

Representing the board, Waxman painted a vivid historical picture. Before the Constitution, the states regarded each other as separate sovereigns who were bound by principles of international law but still imbued with the “raw power” to engage in reprisals. Then the Constitution created a “more perfect Union” in which the states no longer relied on the “wild west of international law.” In particular the states obtained the benefit of sovereign immunity in one another’s courts — which is just the principle that the board needs to prevail in this case. But several justices were skeptical of Waxman’s pat historical account. Justice Sonia Sotomayor led off by asking what constitutional text supported the board’s position, and Breyer soon sparred with Waxman over a series of founding-era cases.

In a comment that may have been partly sarcastic, Justice Samuel Alito noted that “we are all always very vigilant not to read things into the Constitution that can’t be found in the text” and then reiterated Sotomayor’s question about the source of state sovereign immunity. Justice Brett Kavanaugh soon joined in, asking why something that the states supposedly regarded as so important would not have been addressed in the constitutional text. Waxman responded in part by rattling off doctrinal rules based on the Constitution’s structure, without express textual foundation. Chemerinsky, Gilbert Hyatt’s counsel, later countered that when the Constitution aimed to “limit state power, it did so explicitly,” as suggested by the 10th Amendment.

Justice Elena Kagan was alone among the justices in referring to the friend-of-the-court brief filed by Professors William Baude and Stephen Sachs, but she brought it up repeatedly and for an interesting reason. Baude and Sachs essentially agree with Hyatt that Hall was rightly decided, but they couple that conclusion with a claim that Hyatt’s Nevada-court victory should probably be unenforceable in any other states’ courts because of principles traceable to the 19th-century law of judgments. Rather than endorse either half of the Baude-Sachs account, Kagan raised their view as an alternative to the historical narrative that the board put forward. Whereas the board argued that states benefited from the Constitution by obtaining a new sovereign immunity in each other’s courts, Baude and Sachs contend that the states retained their authority not to implement one another’s judgements when those judgments transgress certain international standards. According to Kagan, both of those accounts “are just hypotheses. And what’s the evidence for any of them?” That line of argument allowed Kagan to take advantage of the Baude-Sachs argument while ultimately supporting current practice and meaningful relief for Hyatt.

When he took the podium, Chemerinsky quickly emphasized the historical principles of interstate comity that had helped slash the damages award in Hyatt’s own case. Comity, Chemerinsky argued, offered an alternative way to protect states from abusive litigation. But Sotomayor responded, “I just don’t see comity being enough,” and then pointed to principles of personal jurisdiction as additional help. Later, Chemerinsky noted that the Supreme Court had already created another protection in ruling against Hyatt: During this case’s second trip to the justices, the Supreme Court held that “damages would be limited to the amount that the forum state would be liable.” Breyer also suggested a type of self-help short of physical conflict: If one state started to permit abusive suits, other states might “all start suing” the abusive state, whose “attitude would change.”

Alito eventually posed the basic intuitive challenge that Hyatt confronts: Is it really “plausible that there would be great concern about a state’s being sued in a federal court, which is a more neutral tribunal, but no concern about a state being sued in … the courts of another state?” Chemerinsky answered yes, both because the Framers were focused on potential abuse by the new federal government and because the founding-era states “didn’t want to give up their own power.” But Alito did not seem to agree. And the court has relied on similar intuitions when ruling in favor of state sovereign immunity.

In a more lighthearted exchange, Alito wondered what it would be like “if we had the California republic, which is something some people in California would like.” Alito suggested that if California “overwhelms” Nevada “in every respect,” then state sovereign immunity should play a critical role in protecting the weaker state. Chemerinsky responded that there is in fact a power disparity between the states and that the problem does not actually arise with great frequency.

The argument also featured an interesting debate about what to make of the friend-of-the-court briefs filed by a great majority of states. Waxman pointed out that, all told, 47 states had expressed support for overruling Hall. That impressive display suggests that states generally have use for immunity in one another’s courts. But Sotomayor asked why all those states didn’t simply “move to get the Constitution amended”? The result would be a popular repudiation of Hall somewhat like the 11th Amendment’s repudiation of the 1793 decision Chisholm v. Georgia. Waxman responded that “[o]ur Constitution is not amended lightly” and that similar arguments could have been made against the court’s other structural holdings.

Later, Chemerinsky doubted that “you can equate a brief filed by state attorney generals with the position of state governments,” including the states’ judiciaries and legislatures. And he further suggested that the attorneys general simply “don’t want to have to defend suits” that immunity might block. Chief Justice John Roberts bristled at that idea, saying: “It’s a pretty remarkable assertion that we shouldn’t understand representations of the states’ attorneys general to represent the views of the state.”

Of course, the justices debated the role of stare decisis. Breyer intriguingly suggested that courts’ fidelity to precedent enables lawyers to counsel their clients to obey the law. Otherwise, a client might point to the possibility of a future overruling as a basis for transgressing current legal principles. The upshot is that, “every time we overrule a case, it’s like a little chink in an armor.” In response, Alito asked if the best way to foster public respect for the law is for the court to acknowledge when it has made a “big mistake” and “correct it,” rather than clinging to an old, admitted error.

Kavanaugh was perhaps the most focused on exploring the proper basis for overcoming stare decisis in this case. Early on, Kavanaugh asked if it mattered that the court’s opinion in Hall rested on reasoning inconsistent with later precedents. After all, then-Justice William Rehnquist had dissented in Hall before becoming chief justice and eventually leading the court to expand state sovereign immunity.

In a separate exchange, Chemerinsky suggested that stare decisis required the court to ask, “Is there anything today that’s before the court that it didn’t have when the earlier case was decided?” Kavanaugh was skeptical. In his view, strict adherence to that changed-circumstances principle would have prevented many past overrulings. Instead, Kavanaugh suggested, overruling is proper when a precedent is “egregiously wrong,” has “severe practical consequences,” and generates “no reliance.” Of course, Chemerinsky had already disputed that each of those qualities applied to Hall.

The briefing had exposed several procedural hurdles that might have obstructed the court’s consideration of the sovereign immunity issue, but the justices seemed uninterested in them. Chemerinsky mentioned his law-of-the-case argument a few times, including in the conclusion of his argument. But no justices engaged. And Baude and Sachs’s 11th Amendment concerns likewise went unmentioned.

The argument was lively even though only six justices actively participated. Justice Ruth Bader Ginsburg was absent due to her ongoing medical recovery, and Justice Clarence Thomas was silent in accordance with his custom. Interestingly, Justice Neil Gorsuch also asked no questions, and that choice may reflect the start of a pattern. Last year, Gorsuch was silent in another case that involved a request to overrule precedent — namely, Janus v. American Federation of State, County, and Municipal Employees, Council 31. In Janus, Gorsuch ultimately joined the other conservative justices to overrule a precedent in a 5-4 vote. This case may be headed in a similar direction.

The post Argument analysis: The familiar yet fresh debate in <em>Franchise Tax Board of California v. Hyatt</em> appeared first on SCOTUSblog.

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[maxwellyjordan]

Symposium: Constitutional dodgeball and the separation of powers

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University Moritz College of Law. He was part of an amicus brief of constitutional and administrative law scholars in support of the SEC in Lucia v. Securities and Exchange Commission.

In 2004, Harvard law professor Mark Tushnet wrote an influential article called “Constitutional Hardball.” By that term, he was referring to moves by the political branches of government that are “without much question within the bounds of existing constitutional doctrine,” but that conspicuously violate the conventional assumptions or conventions about institutional behavior that underlie that doctrine. A recent example Tushnet might have been able to foretell would be the 2016 decision of the Republican Senate majority to hold open Justice Antonin Scalia’s Supreme Court seat rather than consider the nomination of Chief Judge Merrick Garland to be Scalia’s successor.

The Supreme Court’s decision today in Lucia v. Securities and Exchange Commission, along with its other much-anticipated decisions, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Gill v. Whitford, seems to be playing a different game, which I’ll call “Constitutional dodgeball.” It is roughly akin to what Alexander Bickel called the “passive virtues” or what Cass Sunstein has labeled “judicial minimalism,” although, in each of these three cases, the court did reach and decide a question of constitutional magnitude. It is just that the justices chose and decided the constitutional issue in front of them in a way that conspicuously appeared to avoid, at least temporarily, the questions of constitutional interpretation that, in each case, were most ideologically laden.

Tushnet attributed what he called hardball to its practitioners’ perception of the stakes at play: “[P]ractitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents’ victory would be a serious, perhaps permanent setback to the political positions they hold.” In a time of intense political polarization, Constitutional dodgeball may appear an attractive strategy for justices who are aware that the cases involved also have very high stakes politically — perhaps even more than legally — and who do not want to be associated with legal reasoning that could also be interpreted as “a serious, perhaps permanent setback” to one or another political faction.

It may seem surprising to cast Lucia in these terms because, surely for most citizens, the case hardly seems to implicate the intensity of either partisan fights over gerrymandering or culture-war fights over gay marriage and religious belief. Yet the case did become a target for high-octane disputation because of its potential place in bolstering a view of government known as presidentialism and an ideology of constitutional interpretation called originalism.

The specific issue in Lucia was, of course, narrow — whether Administrative Law Judges reporting to the Securities and Exchange Commission are “officers,” who must be appointed through some method spelled out in Article II of the Constitution, or just “employees,” whose appointment could follow some other process designed by Congress. Had the SEC members — collectively, the “head of a Department,” in Article II terms — appointed the ALJ for Lucia’s case, there would have been no appointments controversy. All sides agreed that, even if the SEC ALJs are officers, they would be “inferior” officers whom Congress may permit the head of a department to appoint. What created the constitutional problem was the SEC’s decision to delegate its appointment authority for ALJs to its Office of Human Resources, a method Article II does not approve.

Deciding, as the Supreme Court did, that the SEC must itself appoint its ALJs would seem a matter of limited practical consequence — a point to which I will return. But, as the majority reflects in a footnote, the Trump administration’s solicitor general, having abandoned the Obama administration’s defense of the SEC, also asked the court to decide that the ALJs could not constitutionally be insulated from the possibility of at-will removal or its very near equivalent. Though the court declined to pose the removability question to the parties, the solicitor general briefed it anyway. And the court, in a footnote, “once more decline[d]” the invitation to discuss the issue.

Had the justices entered the removal controversy, the Lucia opinion could have had profound practical consequences, and would certainly have had considerable ideological significance. That is, had the Supreme Court determined that an independent agency’s ALJs had to be removable more or less at will, Lucia would have potentially upended a large swath of the federal administrative adjudicatory bureaucracy, which includes over 1,300 tenure-protected ALJs working for the Social Security Administration.

But however it decided the removal issue, the Supreme Court would also have had to take sides, implicitly or not, in the heated debate over legitimate methods for constitutional interpretation. Very strikingly, the court’s majority not only sidestepped the removal question, but it carefully disdained any talk of interpretive method in reaching its conclusion on the appointments controversy. Justice Elena Kagan’s opinion relies entirely on stare decisis – or adherence to the court’s own precedent. In a 1991 case, Freytag v. Commissioner, the court held that special trial judges of the United States Tax Court were officers, not employees. Concluding now that the special trial judges were “near-carbon copies of the Commission’s ALJs,” the majority goes on to declare, “Freytag says everything necessary to decide this case.”

The only opinion to delve into constitutional method is the concurrence of Justices Clarence Thomas and Neil Gorsuch, who write separately to declare their preference for a version of originalist constitutional interpretation that purportedly rests on the “original public meaning” of the Constitution’s terms. Eschewing any earlier Supreme Court decision’s more nuanced approach to the identification of officers, they would hold that the word “officer” “encompass[es] all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty.”

Had a majority of the court embraced the Thomas-Gorsuch approach, it would have been a very big deal — for some observers, maybe even a bigger deal than the limited practical consequence now facing the SEC, namely, appointing its ALJs directly and giving Lucia another hearing.

The clues to the “bigness” of the deal lie in the solicitor general’s unconventional advocacy and in the fact that amici weighing in for Lucia’s view included the U.S. Chamber of Commerce, the Pacific Legal Foundation and the Cato Institute. Advocating for a more politicized appointment of administrative judges might at first seem an odd stance for the business community; the whole point of putting administrative adjudication in the hands of quasi-independent functionaries was to afford respondents like Lucia an adjudicator not “in the pocket” of the accusing agency. Wanting ALJs to be more directly accountable to the SEC would seem, from a fairness point of view, to be against, rather than for, the interests of investment firms.

I can imagine at least two possible reasons why investing in Lucia’s case would seem worthwhile for regulated businesses. First, they may believe in their own ability to “capture” the agencies that regulate them. Certainly, the Trump administration is awash in administrators friendlier to business than the chamber might ever have hoped for. To the extent Americans choose conservative presidents, those presidents are likely to choose more pro-business regulators. Putting the choice of administrative adjudicators in their hands may seem an appealing goal.

But playing a long game, the appeal of a case like Lucia may have lain also with the hope that a fully staffed post-Scalia court would offer a full-throated endorsement of originalism in a separation-of-powers case that could play itself out across a range of other issues. In the halls of academe (and the Federalist Society), there is no shortage of originalist arguments that purport to demonstrate the unconstitutionality of the regulatory state itself. As someone who is not an originalist in the Scalia-Thomas-Gorsuch mold and who also thinks the constitutional arguments against the regulatory state to be unfounded, I consider the stakes in a case like Lucia to be very high indeed. To paraphrase Tushnet, I would regard the ideological defeat of constitutional pragmatism and the originalists’ victory as “a serious, perhaps permanent setback” to sensible constitutional thinking about the administrative state.

Kagan, as it happens, is not an originalist. She is a pragmatist, who — unfortunately, from my standpoint — probably takes the view (as reflected in her earlier scholarship) that linking public administration more closely to presidential oversight improves administrative performance and bureaucratic accountability. I do not doubt that Lucia’s constitutional claim would resonate with her on pragmatist grounds, which may help explain why she would not join Justice Stephen Breyer’s suggestion to resolve the case based entirely on the wording of the Administrative Procedure Act. Yet as I have written elsewhere and at length, I think that position is incorrect — also on pragmatist grounds — and so I find myself grateful for the court’s game of dodgeball in Lucia. One problem with dodgeball is that no one can play it forever, but today, at least, no one got seriously bruised.

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