As the nomination of Judge Amy Coney Barrett to the Supreme Court proceeds, Barrett’s opponents have developed a powerful argument for getting Americans to join the opposition: “Barrett is going to kill Obamacare.”

This is an effective line, because Obamacare has become popular in recent years. (Voters only hated the Affordable Care Act until 2017, when they found out what Republicans’ alternative plans were.) Reminding voters about the ACA’s protections for people with pre-existing conditions likely played a big role in the Democrats’ 2018 midterms sweep. So tying Barrett’s nomination to the destruction of the ACA seems like a surefire way to get Americans engaged in a Supreme Court battle, even when those Americans don’t care much about Democrats’ top judicial priorities: ensuring universal access to abortion on demand and protecting the administrative state through Chevron deference and suppression of the non-delegation doctrine.

(FUN FACT: according to polls, “Chevron deference,” which I care about way too much, is the 11,221st most important issue for average voters, right after “Why is The Masked Singer so watchable? Is it a CIA mind control thing?”)

There’s really only one problem with the “Barrett will kill Obamacare” argument: it isn’t true. In fact, as we’ll see at the end, it can’t be true.

Why It’s Plausible: The New Obamacare Lawsuit

Don’t get me wrong: the idea that Justice Barrett will kill the ACA seems plausible at first glance, and I think that many Democrats–including many Democratic thought leaders–sincerely believe it.

There is currently a lawsuit pending at the Supreme Court, Texas v. California, whose explicit goal is to strike down the Affordable Care Act as unconstitutional, using the argument that the individual mandate (which requires every American to buy health insurance) is unconstitutional. Eight years ago, in NFIB v. Sebelius, the Court faced a similar argument. Back then, they barely upheld the ACA 5-4, with Justice Roberts’ opinion (“the mandate is actually a tax”) saving the law even though not one other justice agreed with his take.

The new lawsuit is specifically aiming to change Roberts’ vote. In 2017, Congress eliminated the tax penalty from the individual mandate. Thus, the lawsuit asks, “Is this really a tax anymore? And, if it isn’t a tax, then, by your own logic, isn’t it unconstitutional?”

Now that the Court is on the verge of becoming more conservative, many people assume that the 5-4 majority in favor of the ACA is about to become a 5-4 majority against it. This is especially true on the Left, where the Supreme Court is often viewed as a nakedly political body rather than as an umpire that should strive for neutrality. Moreover, Judge Barrett herself has, in writing (p.80), arguably criticized Justice Roberts’ “mandate is a tax” opinion, as well as other Supreme Court decisions that saved the ACA.

If the Supreme Court agrees to strike down the ACA, there will be no replacement. It will just be gone, until Congress can agree to pass a replacement law. The Trump Administration has put its weight behind the lawsuit.

If that’s all you know about the situation, it looks pretty bad for Obamacare!

But there is a lot more to the situation than that.

(Full disclosure: I strongly opposed the ACA. I’m still angry at Bart Stupak. I thought that conservatives were correct in the follow-up lawsuit King v. Burwell, and I think that the Obama contraception mandate, which Joe Biden wants to bring back, is legally and morally wrong. On the other hand, I am the only person in America who thinks Justice Roberts was actually correct to call the mandate a tax. I explained why at the time.)

The Part Where Texas Will Probably Win

I think that Texas is likely to win on the core question. They’re right: the mandate was only constitutional because it was construed as a tax. But, since there’s no longer a tax penalty, the mandate is no longer a tax. And the mandate is unconstitutional as an exercise of Congress’s power to regulate interstate commerce. Congress can’t just force you to buy broccoli, and it can’t force you to buy medical insurance, not under our Constitution of limited powers. Five justices, including Roberts, agreed with that in 2012. Four justices (two of whom are still on the Court today) didn’t think it could be construed as a tax in the first place. Barrett has seemed sympathetic to this. So there seem to be 6 votes to strike down the individual mandate. Even if Roberts changes sides for some reason (as he does), Barrett would still give the Court 5 votes against the mandate. I doubt the mandate will survive.

But who cares? The mandate isn’t doing anything right now. Since Congress zeroed out the penalty in 2017, there’s no longer any penalty for violating it, and exactly zero people are saying, “Well, I was going to go without medical insurance, but, now that the federal government has politely asked me to please get some, I will go buy it right now!” Striking down the mandate would have no practical impact on anyone.

The question is whether the fall of the mandate will bring down the rest of the law with it.

Severability

When a court determines that part of a law (or contract) is unconstitutional, that creates a new problem: what about the rest of the law?

Suppose a state passed a law that gave every citizen a bicycle, then mandated that every citizen must bike for an hour every day. (The federal government can’t mandate stuff like that, but there’s very little a state law can’t do!) If a court struck down the mandate part, that wouldn’t be too bad: the state could still give everyone a bicycle.

But if a court struck down the bikes-for-everyone part, then left the bike-riding mandate on the books, suddenly citizens would have a big problem: they’re required, by law, to ride a bike every day, but they don’t necessarily have a bike — and may not be able to afford one! In that case, the court would more likely strike down both parts of the law: the bikes-for-everyone part because it’s unconstitutional, and the bike-riding mandate because, without the bike-giving program, it just isn’t workable anymore.

That, in a nutshell, is severability analysis. Courts have to decide whether striking down one part of a law breaks other parts of the law so badly that Congress would want them to go away as well. Current court doctrine, well-grounded in precedent and the Constitution’s assumptions about the judicial role, asserts that severability should err on the side of Congress, by striking down only the part of the law that is actually unconstitutional and “severing” it from the rest. As Chief Justice Roberts wrote in Selia Law v. CFPB:

“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” Even in the absence of a severability clause, the “traditional” rule is that “the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” We will presume “that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision . . . unless there is strong evidence that Congress intended otherwise.”

This wasn’t just Roberts speaking for himself, either; Justices Kavanaugh and Alito joined this part of Roberts’ opinion.

Justices Thomas and Gorsuch are skeptical of this view… but not because they think the Court should be more aggressive about killing entire statutes. Quite the contrary! Thomas and Gorsuch have questions about whether the Court has any right to perform severability analysis at all. (For example, see Part II of Gorsuch’s dissent/concurrence in Barr v. American Ass’n of Political Consultants.) Thomas and Gorsuch are inclined to provide injunctions specific to individual plaintiffs rather than having the courts rewrite statutes wholesale.

Back in 2012, there was a pretty strong argument that the individual insurance mandate was absolutely essential to the Affordable Care Act, and that, without it, the entire law should fall. Everyone, on both sides, believed that, without the individual mandate, the entire medical insurance market would fall to pieces. Most everyone agreed that the ACA without the individual mandate was such a stupid idea that it would be “legislation that Congress would not have enacted.” I don’t remember the oral arguments in NFIB v. Sebelius very well, but I don’t think there was much disagreement over this. Without the individual mandate, the insurance markets would explode! The conservative dissenters said as much in their dissent. The Court ultimately avoided that question at the time, because Roberts saved the individual mandate.

Today, the individual mandate is effectively dead already. You can argue whether or not the entire medical insurance marketplace has fallen to pieces or not — but, whatever the policy specifics, one thing is undeniable: Congress chose to kill the mandate. It deliberately zeroed out the tax penalty. (Congress would have repealed the mandate altogether, but couldn’t, due to the arcane parliamentary rules of budget reconciliation.) In 2012, you could say that Congress would never be so stupid as to enact a version of the Affordable Care Act without the mandate (and thus the rest of the ACA has to fall with the mandate). In 2017, Congress did enact a version of the ACA without the mandate, in every practical sense.

The idea that the entire statute now has to die because a non-functional part of it is unconstitutional fails the laugh test, assuming the Roberts-Kavanaugh-Alito standard from Selia Law. Under the Gorsuch-Thomas standard, the Court may not even have the authority to do more than enjoin enforcement of the mandate. Kagan, Sotomayor, and Breyer will reliably vote as a bloc to minimize damage to the ACA. It’s difficult to imagine Barrett ending up to Roberts’ right on the question of the individual mandate but then turning around and supporting a more active (frankly, more left-wing) approach to severability.

So I don’t see a single vote on the Supreme Court in favor of striking down the Affordable Care Act in its entirety. I expect the (non-functional) mandate to be struck down 6-3, but for the rest of Obamacare to be upheld unanimously.

The 5th Circuit Doesn’t Think This Is Serious

I hear you: “But wait, James! This case only got to the Supreme Court because conservative judges have already ruled in favor of striking down Obamacare! Doesn’t that mean the Supreme Court’s conservative justices could do the same thing?”

This misunderstands the record of this particular case. In previous Obamacare lawsuits, a district court would strike down some key provision of Obamacare, then a (conservative) appeals court panel would agree, some other (progressive) appeals court panel would disagree, and finally the Supreme Court would take the case after it had worked its way through the system and become a problem too big to ignore.

Almost none of that happened in Texas v. California.

In this case, only one judge has agreed that the ACA should be struck down. That judge is District Judge Reed O’Connor, a Bush appointee with a long record of upholding the claims of conservative plaintiffs. In this case, ACA opponents deliberately sued in Judge O’Connor’s district in hopes that O’Connor would support their lawsuit. He did. His opinion relies entirely on analysis from the 2010 version of the law, avers that he is bound by 2012 Supreme Court precedent on the matter, and insists that he cannot read any intent to kill the mandate into the 2017 act that functionally (though not formally) killed the mandate.

This was not too surprising, because you can find a partisan federal district judge to strike down nearly anything. Much of the judicial #Resistance to President Trump’s lawful orders has played out in district courtrooms, where the plaintiffs shopped for the most agreeable possible judge before ever filing a lawsuit.

California, understandably, appealed Judge O’Connor’s decision, which went up to a panel of the 5th Circuit Court of Appeals. That court agreed that the individual mandate was unconstitutional, but said, “Whoa nelly!” to Judge O’Connor’s claim that the entire law needed to be struck down.

The 5th Circuit panel ruled that Judge O’Connor’s severability analysis was incomplete, and that he needed to redo it, paying much more attention to Congress’s decision in 2017 and to all the different parts of the ACA that would be affected. They then sent the case back down to O’Connor, with a fairly clear implication that they considered his opinion wrong and were giving him a chance to fix it.

Here’s where the case took a weird turn. Instead of taking its victory and returning to O’Connor’s court for round two, California appealed. California Attorney General Xavier Becerra wanted a definitive answer, not more rounds of litigation, so he appealed to the full 5th Circuit.

The full 5th Circuit agreed with the panel: the case should be sent back down to Judge O’Connor for a re-do.

And so California appealed again, this time to the Supreme Court, asking for its immediate intervention.

The Supreme Court would ordinarily never take a case under these circumstances, with an underdeveloped record and nothing even close to resembling a circuit split. However, in this case, both sides–which included (by this point) most U.S. states, the U.S. House of Representatives, and the White House–all petitioned the court for immediate review. They argued that it was going to get to the Supreme Court eventually anyway, and that the ruling was creating “paralyzing uncertainty” in the health care markets. So the Supreme Court acquiesced, and took the case.

There’s no passel of Trump judges who have ruled in favor of this lawsuit. There is one judge, a Bush appointee, who has ruled in favor of this lawsuit, at the lowest possible level. The decision has reached the Supreme Court because plaintiffs and defendants alike were impatient to get a final result, and convinced the Supreme Court to skip several years of lower-court proceedings, which likely would have killed the case long before it reached the Supremes again.

Nobody Else Thinks This Is Serious, Either

Progressives are used to hearing that anti-Obamacare lawsuits are stupid, baseless, and silly. Progressive media and progressive lawyers have said that, often, about all prior anti-Obamacare lawsuits. Yet those lawsuits reached the Supreme Court, causing great surprise and alarm for progressives who had been reassured by progressive legal analysts that there was nothing to worry about. Now, progressives are wary that it’s going to happen again.

But they got blindsided last time because those lawsuits weren’t silly at all. The claims against the individual mandate were extremely strong, the plaintiffs in King v. Burwell were simply reading the statute’s plain text, and the fact that so many progressives dismissed the threats to Obamacare until late in the game shows how blinkered their perspectives and narrow their thinking is. (Progressive legal analysts, of course, cynically blame “conservative judges” for reaching conclusions the legal analysts didn’t like. They want it to be “all politics,” because that absolves them of being bad lawyers with closed minds.)

However, this lawsuit is silly. Don’t ask progressive legal analysts with a poor track record. Ask the conservative lawyers who built and supported the last couple cases against Obamacare! Jonathan Adler, who developed the argument in King v. Burwell, thinks this lawsuit is silly. Paul Clement, who argued NFIB v. Sebelius before the Supreme Court, thinks this lawsuit is silly. Republican attorneys general in Ohio and Montana — one of them a former clerk for Justice Scalia — both think this lawsuit is silly.

The only people backing this case, even on the Right, are elected Republicans trying to gin up anti-Obamacare sentiment (which, legality aside, is incredibly politically stupid right now).

There appear to be no votes on the Supreme Court in support of this case. Their severability doctrine precludes it. They have written about severability with this case pending and have nevertheless re-affirmed traditional doctrine, boxing themselves in on this case. Where they disagree about severability, it’s in a way that makes this case less likely to succeed, not more.

There is only one minor, partisan judge in the entire federal court system who has championed this case, which has reached the Supreme Court because of impatience, not seriousness.

Even many of the opponents of the ACA don’t think it should be taken seriously, and some have actively worked to fight this case.

Judge Barrett herself ruled on this case in a “moot court” academic exercise shortly before Justice Ginsburg’s death. Barrett was one of eight “judges” in the mock court, which split on the question of the mandate but ruled unanimously to uphold the Affordable Care Act as it stands today.

Your Obamacare is safe.

Vote Count

But what if I’m somehow massively wrong about all this? What if, somehow, Democrats’ worst nightmares are true, and there actually are four conservative judicial activists on the Supreme Court ready to strike down the ACA, using this silly suit as an excuse?

What if Judge Barrett was playing some kind of Xanatos Roulette in that moot court exercise, secretly agrees that the ACA should be struck down, and her appointment provides the fatal fifth vote against Obamacare?

Then… it doesn’t make all that much difference.

The Court today has eight votes. Barrett would give them a ninth vote. In theory, she could join four other justices to issue an opinion striking down all of the ACA with a 5-4 decision. (She won’t, because it’s a silly lawsuit, but she could in theory.)

If, on the other hand, the Senate rejects Barrett and fails to seat a ninth justice before November 10th (when this case will be heard), then this hypothetical court could not use Barrett’s vote. It would deadlock, 4-4. What happens then?

Well, then it would go back down to the 5th Circuit. Their ruling would stand. Obamacare would be held unconstitutional in its entirety, subject to further consideration as already ordered by the 5th Circuit.

Obamacare wouldn’t die immediately. However, in this scenario, all the conservatives in the judiciary have decided to become judicial activists. Since the 5th Circuit is more conservative than the Supreme Court, O’Connor’s ruling would eventually be allowed to stand. The final effect would be the same: the ACA would be struck down throughout the entire country. At most, in this bizarre scenario, keeping Barrett off the court would only buy the ACA some time.

Enough time for a new Democratic Congress and President to replace Ginsburg with another liberal and win the case when it comes back to the Supreme Court in 2022? Maybe. But that would be a slow, roundabout, and unreliable way of solving the problem.

After all, if Democrats hold both Congress and the Presidency, they could just pass a law to fix the ACA by formally repealing the individual mandate (or, alternatively, repass the whole ACA without the mandate). That would moot this whole case, even if Barrett is already on the Court. And if Republicans hold the Senate or the Presidency, then they will block Democratic attempts to seat a new justice or fix the ACA.

So there is simply no future, even theoretically, where Barrett is able to kill the ACA. Barrett sitting on the Supreme Court (or not) has no relevance to the future of the Affordable Care Act. If the ACA is going to die, it is doomed with or without Barrett.

But the ACA is not going to die, because this is a silly case.

UPDATE 10 OCTOBER 2020: Added the information about the moot court exercise where Barrett voted to uphold the ACA.

(Or, at least, it should be. Many Americans, on all sides, seem to just want judges who declare laws they like and repeal laws they dislike. But that’s the role of the legislature, not the judiciary. Anyway. Back to textualism.)

Textualists believe that a court must interpret the law according to its original public meaning. This may involve a great deal of investigation into what people actually thought a law meant at the time it was passed, and there are some common misconceptions about how this is done… but, in the end, for textualists, what judges think the law says controls what the law means.

Living-tree advocates (or “living Constitutionalists“) believe that a court should interpret the law by finding new meanings for the original text (or new text altogether) based on modern beliefs, even without going through the amendments process. In this school of thought, what judges think the law means (in a very broad sense) controls what the law says.

I’ll give two examples. First:

The Constitution’s 8th Amendment forbids “cruel and unusual punishment.” It does not give any further information.

A textualist asks: if you showed a reasonable lawyer in 1791 (when this amendment was passed) a punishment, would that person consider it “cruel and unusual”? Such a lawyer would certainly say that being drawn-and-quartered fits the definition of “cruel and unusual.” Indeed, the 8th Amendment was drafted precisely to bar well-known torture methods like that one. But such a lawyer would also certainly say that being executed by slowly cutting you into pieces with a laser is “cruel and unusual.” You’d have to show him what a laser is first, but the original public meaning of “cruel and unusual” covered that.

On the other hand, putting someone to death relatively painlessly, without intentionally inflicting pain — by hanging, firing squad, or modern lethal injection, was not part of the 8th Amendment’s ban on “cruel and unusual” punishment. A textualist may think the death penalty is a bad idea, or that it’s immoral, or that legislatures ought to ban it, or that some particular version of it is so unintentionally torturous that it crosses the line — but will never conclude that the death penalty is simply unconstitutional. If you want to make it unconstitutional, the textualist says, go pass an amendment.

The living-tree theorist looks at this quite differently. Such a judge doesn’t look at the meaning the words “cruel and unusual” had in 1791, but at what meaning they have today, both in society in general and in the judge’s own viewpoint. And that judge may well decide that taking away a criminal’s life, for any reason, is “cruel,” and thus the death penalty is unconstitutional.

Okay, example #2. It’s the most explosive example I have. It’s also what most of our substantive judicial arguments are really about, deep down.

The Constitution says nothing about a right to abortion, but it does provide guarantees of “liberty” and “equal protection.”

Based on how those terms were understood at the time, those terms would not include a right to abortion. Therefore, textualists believe there is no constitutional right to abortion.

However, based on how those terms are understood by some judges and voters today, some might argue that “liberty” should include a right to abortion “by modern standards.” Therefore, living Constitutionalists believe that there is a constitutional right to abortion.

You can see these arguments play out in the current key Supreme Court precedent on abortion, Planned Parenthood v. Casey, where Justice Scalia turns in a straightforward textual argument (which starts on page 979) that abortion rights are a matter for states to decide, while Justice Kennedy’s plurality opinion (which starts on page 844) contends that abortion lies at “the heart of liberty… to define one’s own concept of existence.”

Because abortion has become the central polarized issue in our judiciary, Republicans, who support unborn rights, have become strongly aligned with textualists, while Democrats, who support abortion rights, have become strongly aligned with the living Constitution theory. Every single person on President Trump’s Supreme Court List is a vetted textualist. By contrast, Justice Ginsburg was the clear leader of the living-tree movement in the United States at the time of her death.

Because of this strong political alignment, textualists are often referred to as “conservative” or “right-wing” judges, and living-tree theorists as “liberal” or “progressive” or “left-wing” judges. And this alignment is more than a historical accident; there really is some degree of natural sympathy between progressivism and living-tree theory, and between conservatism and textualism. But that’s another post for another day. You now know the vocab and can get back to whatever you were reading before you found this article.

Full disclosure: I’m a committed textualist. It will not take you long looking around this blog to find strong evidence of that, and I think a pretty good, quick, funny intro argument for textualism is Michael Stokes Paulsen’s “Is Bill Clinton Unconstitutional?: The Case for President Strom Thurmond”.

EDIT: In this post, I referred exclusively to textualism, implying a distinction between textualism and originalism. Some readers asked about this on Facebook, and I’ve followed up with another follow-up post explaining the relationship between the originalists and the textualists.

1. The Substantive Arguments: These are arguments about the actual merits of a specific nominee, or about the general qualifications and appropriate interpretive philosophy of a justice who will sit on a federal court.

Example: “The Senate [should / should not] replace Ruth Bader Ginsburg with a textualist.”

[EDITOR’S NOTE: If you don’t know what a “textualist” is, click here. “Textualism” comes up a lot in this article.]

2. The Tactical Arguments: These are arguments about whether some particular action actually supports a substantive objective in the long run, or if there’s a risk of backfire.

Example: “The Senate should replace Ruth Bader Ginsburg with a textualist, but [should / should not] do it right now, because Democrats [will / will not] retaliate by packing the courts.”

3. The Legal Arguments: These are arguments about whether and how a nominee may be confirmed. There have not been a lot of these lately, because the Constitution and Senate procedure are pretty clear, but there were genuine legal questions over the judicial filibuster (and whether and how it could be bypassed) after Senate Democrats developed and deployed it in 2003 against Miguel Estrada.

Example: “Martha McSally [can / can not] vote to confirm a nominee to replace Ruth Bader Ginsburg during the month of December if she loses her election, because the special election [will / will not] seat her opponent on December 1st.”

4. The Process Arguments: These are arguments that are not about the law, but institutional norms and precedents. These norms are not legally binding, but many people argue that (A) they exist, and (B) they should be obeyed, except (C) when there is a very good reason to violate them.

Example: “The Senate [should / should not] wait to vote on a nominee until after Inauguration Day, because there [is / is not] an institutional norm against confirming a nominee in the last year of a presidential term, and Senators [should / should not] follow that norm in this case.”

5. The Moral Arguments: All other arguments that make moral claims about a nomination go here. They are often (but not always) fairly tangential to the immediate issue.

Example 1: “Mitt Romney [should / should not] vote against any Trump nominee, because President Trump [is / is not] a fascist and Romney should not cooperate with fascism in any way.”

Example 2: “There is no actual institutional norm regarding election-year confirmations. However, Lindsey Graham said there was. Therefore, Lindsey Graham [is / is not] bound to refuse any nominee until after Inauguration Day.”

Lies, Damned Lies, and Process Arguments

It’s worth spelling this out, because a lot of arguments people are having about the nomination right now are at cross-purposes. Process arguments are met with substantive arguments; tactical arguments are countered by moral ones. Answering one argument with a completely different type of argument goes nowhere, because it’s arguing about a fundamentally different thing. My Facebook feed is a mess, and I’ll bet yours is, too.

In reality, virtually all arguments about judicial nominations are either:

• a) honest substantive arguments, or
• b) dishonest substantive arguments disguised as other kinds of arguments.

This has been true for literally my entire life.

In 2016, people who said that President Obama should wait to nominate just happened to all be people who also wanted to put textualists on the Court, and who knew that Obama was not going to do that. In 2013, people who said that Senator Reid should detonate the nuclear option to ram through a bunch of D.C. Circuit nominees just happened to all be people who supported the ideologies of those nominees. In 2018, people who believed Brett Kavanaugh just happened to be people who supported his philosophy of judicial interpretation, and vice versa.

And so on and so forth, back through the Alito filibuster, back through the Estrada nomination, back through the Clarence Thomas “high-tech lynching” hearings, all the way back to July 1st, 1987, the day Sen. Ted Kennedy walked out onto the Senate floor and launched the United States Judicial Wars (1987-present) with the lies of his “Robert Bork’s America” speech.

The scary thing is that many people don’t even realize they’re doing this. Lots and lots of people are online right now calling out 2020 Republicans as amoral hypocritical monsters for abandoning the dumb rule they made up out of thin air in 2016, without even noticing that they themselves applauded when 2013 Democrats abandoned the dumb rule they made up out of thin air in 2003 for their own political purposes.

There are a handful of exceptions to this rule. David French and Jonah Goldberg really do want textualists on the Supreme Court, but both have made tactical arguments against filling the current vacancy (They are bad arguments — but honest ones. I’ll explore them in another post.) But these honest exceptions are vanishingly rare.

Everyone else consistently reaches conclusions on process and tactics and the law and even on morality that all just happen to coincide with their pre-existing substantive preferences for the shape of the Supreme Court. That’s pretty impressive, when you think about how everyone has had to completely switch sides on issues like “the judicial filibuster” and “nominations in an election year” over the years to reach the “right” conclusions! Yes, yes, Republicans on Facebook, quote McConnell all you like, he’s a smart cookie… but I know you weren’t talking about a “divided government exception” to the “Biden Rule” back in 2016! You discovered that exception the moment it became useful to you!

So you should mostly just ignore all non-substantive arguments as presumptively disingenuous. You can inquire with the person you’re talking to to find out whether they are actually being disingenuous. If not, you can then have a serious conversation with them about the importance of political norms and when is the right time to break them — but you’ll rarely find that you get that far.

F.A.Q.

Q: So why do people engage in process arguments and tactical arguments and moral arguments anyway, instead of just directly engaging on the substantive issues they all care about?

Two reasons:

(I) Substantive arguments are much harder to have. People are very deeply set in their views on judicial philosophy, and having an argument with them about it means debating the hottest culture-war issues we’ve got, from Engel v. Vitale to Roe v. Wade.

(II) Many centrist voters are upset that the culture war exists, and want it to stop existing. Bringing up substantive arguments spooks these centrists, so both parties try to avoid doing it.

Q: But James! Aren’t you just saying process arguments are dishonest because you want the Senate to violate the institutional norm from 2016 and appoint a textualist to fill Justice Ginsburg’s seat? Aren’t you doing exactly what you’re accusing everyone else of doing?

Good! I’m glad you’re learning to be appropriately suspicious! That’s an excellent question!

In my case, however, I have receipts. I’ve been saying this since 2004, during the Miguel Estrada hearings, and I’ve been saying it online for nearly a decade. Here’s me saying in 2016 that the “Biden Rule” argument was stupid and that Republicans should admit they are blockading Obama nominees for substantive reasons. Here’s me saying the same thing again in 2016. Here’s me way back in 2013 praising the Democrats for having the wit to recognize that norms are stupid and for proceeding to blow up the norms that were in their way — then handing me a series of serious judicial defeats. Here’s me showing that judicial nominations battles have always been about substantive issues and the power to pursue them, even in the 19th century, and that the reasons that applied then still apply now. (Note that I was already suggesting the possibility of civil war, a theme to which I recently returned, more than four years ago!

So you can trust me on this one. I believe process arguments are disingenuous, I’ve believed that for a very long time, and I apply it to both parties.

Q: But James! Have you ever properly excoriated Republicans on this blog for their dishonesty in 2016 the way you tore into the hypocrisy of the Democrats back in 2013?

You know what? I don’t think I have. I’ve certainly thought it, but I’m not sure where I’ve actually said it online. That’s an oversight, and an embarrassing one. So let me say it now:

If Republicans had taken my advice in 2016 and admitted they were blocking Garland because they didn’t agree with his vision of the Constitution, instead of making up all that nonsense about “election-year vacancies,” then a whole lot of them would be in a vastly less stupid and embarrassing position today than they actually are. They were blocking Garland for obviously ideological reasons, but many Republicans (like Lindsey Graham) tried to come up with some non-ideological excuse for it. What they landed on was some version of “We should wait until the presidential election gives the American People a voice in how we ought to break this deadlock.”

Unfortunately for them, they mostly didn’t think through their lies as carefully as Mitch McConnell did, and now they are all on record making dishonest statements about the process… which they are now going to have to renege on in order to add more textualists to the courts… which was always the substantive motivation for all their actions anyway. This will be humiliating for them. They will have to pronounce either straightforward apologies or hilariously transparent new lies in full view of the voters… and it serves them right. They lied to the American People in 2016. They were wrong to do so. Fortunately, even at the time, nobody believed them. (I would love to see Democrats get their feet held to the fire about the 2013 filibuster reform in the same way, but, of course, American news media will never do that.)

Once the Republicans have been forced to abandon their dumb 2016 rule, then maybe, finally, everyone will stop pretending this is a game of norms, or tactics, or anything else. Judicial nominations are a game of power, on the most important substantive questions in American politics, played for all the marbles. This is precisely what many Americans voted for when they put Trump and the GOP Senate in power in the first place. Neither side would ever give up an opportunity like the Republicans just got–nor would they be sane if they did so.

(1) it was an excellent lecture, and

(2) she could well be the next Associate Justice of the Supreme Court of the United States.

I can see now from this video’s pathetic view count (791 views!) that most of my Facebook friends did not take me up on my invitation. However, now that Judge Barrett is indeed the frontrunner to become the next Supreme Court justice, maybe it’s time you, my public readership, corrected the errors of my Facebook friends?

Feel free to watch this at 2x speed. It makes the time pass much faster. Also, the actual lecture ends at the 44-minute mark. The last part of the video is Q&A, which is much less interesting, because most Q&A at lectures of this sort is off-topic and low-quality.

The topic of the lecture is “Canards of Contemporary Analysis.” Riffing on a 1989 lecture by Justice Scalia at the same school, Barrett names several very common legal ideas — ideas so commonplace they usually slip past without any scrutiny — and scrutinizes them.

SPOILERS –

The canards she dismantles are:

1. “Textualism is literalism.”
2. “A dictionary is a textualist’s most important tool.”
3. “Textualists always agree.”
4. “We must never forget that it is a Constitution we are expounding.”
5. “Judicial activism is a meaningful term.”
6. “Congressional silence is acquiescence.”

P.S. I think there’s a 75-80% chance President Trump’s nominee will be confirmed to the Supreme Court before Inauguration Day 2021, and a 55-60% chance that his nominee will be Amy Coney Barrett.

(Nate Silver also rates the odds of Trump’s re-election at about 25%, which would give any Trump nominee very roughly a 100% chance of confirmation.)

So I guess I’m giving ACB about a 58% chance overall of being the next Supreme Court Justice. So she’s the frontrunner, but there’s still a LOT of different people in contention.

For one example, check out my surprise interview with Supreme Court contender Thomas Hardiman, who strenuously and rightly objected to my characterization of him several years ago. Judge Hardiman is still on the President’s approved list, although it is unlikely a man will be appointed to fill the late Justice Ginsburg’s seat, may she rest in peace.

I explained why this was the system the Founding Fathers had intended, I cited some solid scholarship in support of this position, and I was greatly heartened when, last year, the 10th Circuit Court of Appeals upheld my position in a landmark ruling.

However, this morning, the U.S. Supreme Court unanimously rejected my position. This is deeply disappointing, because restoring the proper function of the electoral college was one of the diminishing number of ways we might have been able to fix our broken government and electoral system. Of course, the Supreme Court often gets it wrong. Chief Justice Roberts, in particular, is an unprincipled dumpster fire. (Much as it pains me to admit.) But this decision was unanimous… and the devoted textualist Gorsuch, fast becoming my favorite justice, signed on to both opinions giving separate reasons why I was wrong. Maddening though it is, I find it (as usual) difficult to argue with Justice Thomas’s concurrence.

The Supreme Court did not deny that the Founding Fathers wanted a system where electors had freedom and discretion. They did not reject any of the reasons why that system was a good idea. I stand by those. They affirmed that states could give electors discretion if they chose, and I maintain that they should. But the system the Founders wanted is not necessarily the one they legislated, and the Supreme Court determined that the original public meaning of the Constitution does not guarantee discretion to the electors.

I told you otherwise way back when, and I must now retract those statements.

This blog will simply attempt to describe the range of plausible outcomes in June Medical Services v. Russo (known until quite recently as June Medical Services v. Gee). After tomorrow’s oral arguments, we will have a much clearer idea of where the Court is heading. The pro-choice mainstream media will scream in horror at the top of its lungs under all plausible outcomes. The headline “The End of Roe is Nigh” will appear regardless of whether the end of Roe is, in fact, nigh. I want to post a few insights about the case now to help you set expectations and put the media’s forthcoming tantrum in perspective.

June v. Gee revolves around a series of medical regulations the state of Louisiana has imposed on abortion clinics. (Interestingly, the regulations were imposed in large part by Louisiana’s strong contingent of pro-life Democrats, God bless ’em.) These regulations are in many ways similar to regulations imposed by Texas several years ago. The Supreme Court struck down the Texas regulations in the 2016 case Whole Women’s Health v. Hellerstedt.

Hellerstedt was a 5-3 decision, with Justice Scalia absent (due to being dead). Leftist justices voted to strike down the regulations; right-wing justices voted to uphold them. Justice Kennedy cast the deciding vote and sided with the left-wingers.

But Scalia and Kennedy have both been replaced with conservative justices. Meanwhile, the 5th Circuit Court of Appeals has ruled that the Louisiana regulations are actually not that close to the Texas regulations and shouldn’t be affected by Hellerstedt.

What will the new Supreme Court do? Will they accept Hellerstedt as settled precedent? If they do, will they hold the new regulations should also be struck down, or are they different enough to be upheld? Will they finally act to minimize (or eliminate) the demented precedents of Roe v. Wade and Planned Parenthood v. Casey? Will they try and wriggle out of the whole question on a technicality, and both sides live to fight another day? Have pro-lifers finally succeeded in restoring the Supreme Court to correct constitutional rulings on abortion… or were all those votes for pro-life presidents and senators over the past twenty-five years ultimately in vain?

There are a few plausible possibilities:

REGULATIONS STRUCK DOWN (DEFEAT): In this outcome, the pro-lifers lose. This would be pretty bad. First, it would foreclose a huge area of legislation that pro-lifers have used to protect human life (unborn and born). Second, it would be a strong indication that the Court will be unwilling to consider more aggressively pro-life laws, like the heartbeat laws passed in several states, and even fairly routine medical regulations will be subject to years-long judicial review by partisan judges before coming into effect. Third, for the Louisiana regulations to be struck down, the Court would have to reaffirm Hellerstedt, a narrowly decided precedent from just a few years ago — a far weaker precedent than Roe itself. That would mean that, fundamentally, nothing has changed on the Supreme Court with Justice Kennedy’s departure. Abortion would still be an unlimited constitutional right trampling over state laws and regulations of all kinds, and there’d be not a damn thing we can do about it short of revolution. The past twenty-five years of pro-life campaigning to rescue the judiciary would have all been for nought.

I don’t think it’s especially likely the regulations will be struck down like this, but pro-lifers have been burned before: nobody expected Planned Parenthood v. Casey to loudly reaffirm abortion rights, either, but that’s exactly what happened. Justice Kavanaugh’s judicial philosophy remains unclear to me, and everyone should be nervous about Justice Robert’s deep desire to preserve so-called “respect for the Court” among a left-wing press that holds him in complete contempt regardless. I’m nervous about this outcome.

This is the only outcome where the media won’t completely freak out, although they will still write Very Very Angry pieces about how horrible it is the the Court, in upholding Hellerstedt, failed to actually affirm the so-called constitutional right to an abortion.

REGULATIONS UPHELD BUT HELLERSTEDT PRESERVED (MINOR VICTORY): The Court could do what the Fifth Circuit did: obey the Hellerstedt precedent (keeping it on the books) but in a really narrow way (making it much less of an obstacle to pro-life regulations). This would give states considerable flexibility to regulate abortion clinics while allowing the Court to say that they respect precedent. Personally, I think this is the one of the most likely outcomes, because it’s one of Justice Roberts’ very favorite moves, especially if he can bring over a vote from the other side to support him.

And, you know what? It’s an okay outcome. Not great, because it signals they are still too concerned about political considerations to actually uphold the Constitution. Also not great, because the Hellerstedt precedent involves a laborious and highly subjective legal test, which will be applied by ideological judges on both sides every single time a clinic regulation is passed… but, still, upholding the Louisiana regulations should give states a free hand to regulate abortion clinics (many of which cannot survive adequate medical regulation), and suggests at least the possibility that the judiciary will allow cautious, well-considered moves toward other abortion restrictions.

The media will completely freak out if this happens, but it will be mostly hype. A small victory for pro-lifers that enables us to sometimes enact broadly popular measures like the Louisiana regulations will continue things on their current trend (clinic closures are up, abortions are down), but won’t fundamentally alter the trajectory of the American abortion debate. The media is just used to the Left controlling the Court, as it did for the entire period between 1938 and 2018, and is taking the transition very badly.

DISMISSED FOR LACK OF STANDING (BACKDOOR VICTORY): Pro-lifers have advanced the very interesting argument that the plaintiffs in this case (abortion clinics who are suing on behalf of the women they serve) do not have legal standing to sue over this regulation, because the interests of the clinics and the interests of the women they’re supposedly representing are too divergent. (And women who oppose the regulations could just file lawsuits themselves.) If the Supreme Court agrees, the case would be dismissed without ruling on the underlying question of whether Hellerstedt was correct. The Louisiana laws would be upheld by default… although some individual Louisiana woman (or women) could file a future lawsuit, sending the case through the entire court system all over again. (This case was originally filed in August 2014, so… see you in six years!)

It would not be a bad outcome for pro-lifers, though, because abortion clinics have used the “we are suing on behalf of women” excuse to challenge every abortion law we’ve passed in every state for thirty years, bringing their massive reserves of cash and organization to bear on our ragtag movement. Forcing them to at least recruit actual clients who are actually able to claim some kind of legally cognizable injury from abortion regulations could make suing against every pro-life law a bit less legally feasible. And it is sort of weird that abortion clinics seem to be an exception to regular court rules about standing. Still… while many pro-lifers are cheering for this outcome, it doesn’t seem worth it to me, when, really, Hellerstedt needs to go.

I think there’s a very good chance of this outcome. It’s probably the most likely outcome. Roberts will be looking for an out on this case (as discussed above). He may be able to win somebody on the other side over to this opinion, maybe Kagan, therefore showing a bipartisan consensus, which he loves. And pro-lifers are actively campaigning for this in recent legal briefs, so it won’t be interpreted as a betrayal the way either of the lesser outcomes would be.

The media will moderately freak out if this happens, but it will be mostly hype, and they’ll be mostly too confused about the implications to really let loose about it.

(UPDATE: A lawyer friend of mine, whom I greatly respect, and who is routinely involved in national abortion litigation (including before the Supreme Court), thinks I am underselling the effect of this outcome. If clinics don’t have standing, certain kinds of regulations, including these regulations, could become very difficult or even impossible to sue against, because few/no individual mothers would have standing. The Obama Administration used this “nobody has standing” trick a few times to violate the Constitution, as in the suspension of the employer mandate, so it would be nice to see this used to prevent constitutional shenanigans in the judiciary for once. She spoke of other benefits to the pro-life legal movement as well. I’m still getting a handle on what exactly this outcome would mean, but I trust this friend implicitly. A backdoor win on standing might be terrific.)

HELLERSTEDT OVERTURNED (MAJOR VICTORY): As I’ve mentioned, the Court ruled 5-4 in Hellerstedt (technically 5-3 because Scalia died) to strike down clinic regulations. The 5th vote was Kennedy. Roberts strongly opposed the decision at the time, and he joined a scathing dissent.

Kennedy is gone now. If Kavanaugh is the man we think he is based on his lower-court opinions, and Roberts isn’t a coward who abandons his own published opinions, they really should overturn Hellerstedt. Under any reasonable analysis of stare decisis, Hellerstedt just doesn’t have many of the elements that make it a strong precedent, so even fear of overturning precedent shouldn’t hold Roberts and Kavanaugh back.

Practically speaking, overturning Hellerstedt would not just deliver a victory to women and children in Louisiana; it would also make it much easier for other states to pass these medical regulations on abortion clinics, without fear of a court striking them down. It would signal to pro-life activists that the Court is willing to reconsider and overturn various non-Roe abortion precedents. That would encourage states across the country to pass new legislation finding new ways to push the envelope, eventually undermining Roe and Casey to the point where it becomes “unworkable” and they’re overturned, maybe ten or fifteen years from now. So this wouldn’t be the perfect outcome, but it would be very good.

It had better be! It’s why our side put President Trump in office, and God knows the cost of doing that has been terribly high. Based on Kavanaugh’s testimony about precedent in his hearings (before the rape allegation consumed everyone’s attention), I think this is how he would like to approach it. I don’t think Kavanaugh is opposed to overturning Roe, but he wants to build a lengthy judicial line of contrary precedents before finally acknowledging Roe‘s incompatibility with the Constitution. So I consider this the last of the three most likely outcomes, and the only one I would be really, really happy with.

If this happens, the media will completely freak out, with some justification. They’ll call it the imminent end of Roe, when really it’s more like pro-lifers have finally found the first chink in Roe‘s judicial armor plating since we won Gonzales v. Carhart 13 years ago. (The media had a nice solid freak out about that, too… but here we are, it’s 2020, and Roe is still on the books.) It will adjust the trajectory in the abortion wars in favor of life, but only modestly… at least for now.

CASEY OVERTURNED (DECISIVE VICTORY): The Court could go further than overturning Hellerstedt. Hellerstedt is built on Casey, the 1992 precedent that made “undue burden” the standard by which all abortion regulations are judged. It would not be shocking for the Court to revisit Casey, 27 years later, and modify its central holdings. The “undue burden” standard has repeatedly proven vague and unworkable for an entire generation now, with courts swinging back and forth on its meaning based on their partisan makeup, and that’s the kind of thing that ordinarily invites Supreme Court re-review (at least outside the bizarro world of abortion law).

Casey is the worst Supreme Court decision of all time (as Michael Stokes Paulsen has correctly argued elsewhere), so it’d be great to see it gone. Killing off Casey and imposing some new set of rules on abortion would be incredible, and, depending on what the new rules are, it might be effectively the same thing as killing off Roe without the Court actually admitting that’s what they’re doing. This is probably the best we can reasonably hope for from Roberts and Kavanaugh… but, again, depending on how they write the opinion, they could use this to kill Roe in all but name, so we wouldn’t really have anything to complain about.

ROE OVERTURNED (TOTAL VICTORY): Obviously, the Holy Grail. In this outcome, the Supreme Court just comes out and admits what we’ve all known, on all sides, since 1973: there is no constitutional right to abortion. Harry Blackmun made the whole thing up. Abortion would be thrown entirely back to the states, and all of a sudden the pro-life movement, having won a great victory, is thrown into battle on 50 different state fronts, in a huge variety of ways. (After all, those states with heartbeat bills and trigger bans on the books suddenly have no abortion — do they have enough crisis pregnancy centers to take care of the sudden surge in mothers with crisis pregnancies?)

For either of these last two outcomes, the media freakout would be justified. The media in this country is deeply committed to the constitutional right to a dead child, and overturning either Roe or (depending on how it’s done) Casey would effectively end that supposed right. (States could still protect it, and many would.)

This honestly could happen. It’s certainly not likely, I don’t even think it’s wise to get your hopes up… but it could. Indeed, I guarantee you that Justice Thomas will write an opinion calling for the end of Roe regardless of the outcome. I will bet you five dollars that that opinion is joined by both Alito and Gorsuch. That’s 3 votes to kill Roe in your pocket. But you need 5 for a majority.

Roberts is a sane man who knows that Roe is bad law, but he’s also intensely anti-confrontational and intensely worried about the Court’s prestige. And Kavanaugh is still something of an unknown quantity. So I am not holding my breath in hopes that June Medical Services v. Gee will herald the end of Roe. I’m hoping for — and expecting — a modest victory that helps us push the battle for unborn rights another step forward. But you shouldn’t be caught entirely flat-footed if, next June, Roe v. Wade suddenly falls on the ash heap of history where it belongs.

This is a trademark case. The U.S. Trademark Office rejected a trademark for the brand “FUCT” because of a law (the Lanham Act) that says trademarks should not be granted for “immoral or scandalous matter.” The guy who runs FUCT insists that it isn’t obscene, and actually you’re supposed to pronounce it by spelling it out: F-U-C-T.

The U.S. Supreme Court decided today, 6-3, that (1) hahahaha nobody believes you, dude, and (2) nevertheless, this law violates the First Amendment. Therefore, the trademark must be granted to FUCT.

Justice Alito joined that decision. But this struck me as odd. Alito is the Supreme Court’s obscenity-hater-in-chief and its champion against moral relativism. In Snyder v. Phelps, the Supreme Court ruled that Fred Phelps and the Westboro Baptist Church could not be sued for inflicting emotional distress after their obscene protest of a dead soldier’s funeral, because of the First Amendment. In that case, Alito stood alone to dissent. He would have allowed the soldier’s family to sue Phelps for a lot of money. That’s who Alito is. You might call him the Supreme Court’s moral scold. I call him that lovingly, because I tend to agree with him.

The First Amendment protects many kinds of speech, especially political speech and its constituent activities, but also religious speech, art, and the general free exchange of ideas, information, and stories. As American culture becomes more and more polarized into two separate and isolated camps, each increasingly inclined to silence the other, we need a strong First Amendment now more than ever (hence the Court’s correct decision in Citizens United*). But the Supreme Court has repeatedly held throughout its history that the First Amendment’s protections do not extend to obscenity. Obscenity is not free speech per se, in the Court’s view.

Thus, it is perfectly legal to outlaw pornography. It has been illegal throughout nearly all of the country throughout nearly all of its history. Indeed, pornography is technically still illegal in most places today (here is Minnesota’s anti-porn statute; your state likely has a similar one)… but it’s difficult to enforce, thanks to some Supreme Court precedents that make it difficult to prove that something really is porn (not art). The barrier-smashing power of the Internet, too, has made enforcement nearly impossible.

However, Justice Alito remembers that, despite barriers to enforcing anti-obscenity laws today, obscenity is still not actually protected speech. He sometimes seems to be the only member of the Supreme Court who does.

And here he is ruling in favor of a brand called FUCT?

So I looked up his concurring opinion. And it’s good! I really like the distinctions he draws. Were I a justice on the Supreme Court, I’d join it. I’m going to reprint the whole thing here. Don’t worry; it’s short.

For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be “immoral” or “scandalous” can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in force.

The full slip opinion is here; Alito’s concurrence is on pages 14 and 15 of the PDF.

*I know Scalia’s concurrence isn’t the controlling opinion in Citizens United, but it’ll be a cold day in Hell when I link favorably to a Kennedy-penned opinion in a case where literally anybody else in the majority wrote on the central question of the case.

The editor wishes to disclose that he successfully, if barely, resisted the temptation, nearly universal among bloggers this morning, to make this article’s title a “FUCT” pun.

This post has been updated. See the bottom of the post for details.

Senate Republicans should offer Senate Democrats a deal:

(1) Kavanaugh is rejected.
(2) Feinstein resigns or is expelled.
(3) Expedited hearing schedule for Kavanaugh’s replacement… or no hearings for a nominee who has been through Senate hearings during this Congress.

Kavanaugh was always my third choice for the Court, and I have serious concerns about some of his testimony Thursday. As far as I have read, nobody, not even in 1982 Virginia, ever defined “boofing” or “devil’s triangle” the way he did. Even a single lie under oath is disqualifying and impeachable, even if the question asked was inappropriate or irrelevant—something I have held since the Clinton impeachment.

Combine this with Kavanaugh’s record on the D.C. Circuit, where his reasoning was (in my opinion) just a bit too politically motivated, and with the damage his confirmation would do to the legitimacy of the Court and/or John Roberts’ willingness to be part of the conservative majority… and I just don’t think he belongs there. That’s before considering my serious doubts about his innocence. (It is implausible that he was never blackout drunk, as he maintains, and it would be awfully strange that Dr. Ford started telling her friends Kavanaugh assaulted her in 2013, when Obama was just starting his second term, simply to lay the groundwork to make a charge in 2018… but her charge remains unsubstantiated.)

My conservative friends are, of course, correct that Kavanaugh deserves the presumption of innocence. But the presumption can be rebutted by evidence, and I think there is sufficient evidence to draw at least a tentative conclusion that Kavanaugh deliberately deceived Congress, whether or not he committed the assault in question. To my conservative friends who still doubt this, see Nathan Robinson’s comprehensive (if overconfident) analysis in Current Affairs, “How We Know Kavanaugh Is Lying.” I think we can only say Kavanaugh is probably lying, but that should still be enough to end his nomination.

At the same time, Republicans are correct that we can’t legitimize the outrageous tactics the Democrats cynically used to derail this nomination. I don’t like Lindsay Graham (a devoted moderate and lover of the military-industrial complex), but his explosion at the Democrats was both justified and a sign of just how egregiously they’d crossed the line. If Republicans simply reject Kavanaugh without concessions, this will happen again. Democrats will uncover (or fabricate) some explosive charge which they’ll sit on during hearings then detonate just before the confirmation vote, doing maximum damage to the nominee, to the Courts, and to the Republic as a whole—all in an attempt to run out the clock on the lame duck session and protect their sacrament, abortion, from judicial review by judges who follow the Constitution. (Remember: they did the exact same thing with Clarence Thomas. Whatever you think about Anita Hill, the Democrats sat on her allegation until the last minute.) They have to pay a price, one that makes clear this will never happen again.

To my progressive friends who still doubt this, see Andrew Sullivan’s piece in NYMag, “Everyone Lost at the Kavanaugh-Ford Hearings.” (And if you don’t like Sullivan, progressive friends, bear in mind I just made all my conservative friends read Current Affairs a couple paragraphs ago.)

Feinstein’s a good sacrifice. She was at the center of this thing. The hearings revealed what she knew and when, and it was damning. She is highly culpable for what happened here, whether she acted out of malice or sheer incompetence. The Left is already ticked at her for her relatively conservative voting record. Her departure bears zero risk for Democrats, because California’s jungle primary system has locked Republicans out of the general election this November. Feinstein’s only opposition is a significantly more progressive candidate, who will win by default if Feinstein is knocked out. But her expulsion makes the Senate’s displeasure with her actions crystal-clear, and creates a cost that will hang over any senators who try shenanigans like this ever again. Expelling Feinstein is a win for the progressive Democrats that simultaneously allows the GOP to save face in withdrawing Kavanaugh.

The Democrats then must allow the Republican rejection of Kavanaugh to be equally risk-free. Thus, expedited hearings for the replacement. Democrats lose a Senator but keep her seat in the party (and actually get a better progressive out of it); Republicans lose a SCOTUS justice but keep his seat for conservatism (and possibly even a better conservative). In both cases, the guilty are punished and the legitimacy of both institutions is preserved, perhaps even reinforced.

The odds of this happening are basically zero. I can’t even think how you could start negotiating it in the current climate without immediate leaks undermining each side’s capacity to negotiate. But it seems to me like the only way forward anyone has suggested that gets us through this without wrecking the Supreme Court confirmation process forever. The process was abused here by Democrats to destroy the reputations and to some extent the lives of both Judge Kavanaugh and Dr. Ford. That abuse nevertheless exposed some issues with the Kavanaugh nomination that make him unsuitable for the Court. If everybody pays a price for that, we can get back to where we were six months ago. And I think what I’ve proposed allows everyone to de-escalate while saving face and not paying too painful a price.

Otherwise, barring some extraordinary discovery in the FBI investigation, political calculus on both sides will ensure Kavanaugh’s confirmation.

UPDATE: I hold people to a very high standard of truth when they testify under oath. I supported the impeachment and conviction of President Clinton for perjury. I supported the arrest and prosecution of James Clapper for the same crime. Lying is a grave crime against those lied to, one we do not take nearly seriously enough as a culture.

And so it was that I was willing to deny Judge Kavanaugh a seat on the Supreme Court in no small part on the basis of a few “small” lies about his yearbook quotes. Specifically, he claimed that “boofing” was a reference to flatulence and that “Devil’s Triangle” was a drinking game, whereas my own knowledge of those slang terms suggested darker meanings, and I could find no corroboration for Kavanaugh’s version. When the New York Times found classmates who claimed that, at Georgetown Prep in the 1980s, both terms had the darker meaning, I accepted their claim and decided Kavanaugh was probably lying about his yearbook. If he was lying under oath — even about this stupid ridiculous question that probably should never have been asked — then Kavanaugh could not be fit for the Court.

But, as it turned out, Kavanaugh was probably not lying about these things after all. Devil’s Triangle seems to have been a drinking game. Six classmates attested to that, under their own names, under penalty of law, in two separate letters to Congress. (The classmates the Times cited to attack Kavanaugh’s position were anonymous.) Precisely because I hold people to such a high standard of truth, I take witness testimony very seriously. (I also believe the sworn declarations by friends of Dr. Ford who said that she identified Kavanaugh as her attacker in 2012 and 2013.) But the Devil’s Triangle case was further boosted by a close analysis of the rest of the yearbook, which contained a number of indications that it referred to a drinking game and that the name was “founded” at the Prep — which all but rules out the possibility that it shared the same meaning as the general-use slang term.

As for boofing? At the time I wrote this article, I was aware of no corroboration of Kavanaugh’s claim that it had ever referred to flatulence in any context, anywhere. But, in fact, “boof” is listed as a synonym for flatulence in 2004’s The Art of the Fart, and the earliest article I could find using the term (from 1993) seems to support the claim — if “boofing” had a particular sound, it could hardly refer to anal injection of alcohol, as Kavanaugh’s detractors insisted… but it makes a great deal of sense if it refers to farts.

Did I expect to end up carefully litigating flatulence when this confirmation began? No. Is it pretty ridiculous? Yes. But it is important to vet the truth of what our judges say under oath… and I’m happy to say that, on this point, at least, Judge Kavanaugh has been seemingly vindicated.

Not all of my readers were tuned into judicial politics back in the days of Miguel Estrada and the Gang of 14, so let me explain that tweet a bit before I get to the exciting stuff.

Harriet Miers was George W. Bush’s original nominee to fill the seat of retiring Supreme Court justice Sandra Day O’Connor. Miers was the White House counsel and a close adviser to the President… a President who had recently won an election thanks to Catholic and evangelical “values voters.” Calling her “a pit bull in size 6 shoes,” President Bush vouched for her integrity, her legal chops, and her work ethic.

The problem was, Miers had a very thin record. She’d worked as a commercial litigator before becoming the personal lawyer of then-Governor Bush. She was an able lawyer for her clients, but there was no public record showing what she herself thought about the Constitution, the judicial branch, or the pressing issues of the day. President Bush believed that his personal assurances would suffice.

They did not. Republicans had been burned several times before. Sandra Day O’Connor, Anthony Kennedy, and David Souter had all been nominated by Republican presidents who gave assurances that the nominees would turn out to be excellent, judicially conservative judges.* Once on the Supreme Court, all three showed their true colors… and those colors did not have much to do with the Constitution.

All three supported (and, in fact, crafted) the plurality in Planned Parenthood v. Casey, which Michael Stokes Paulsen rightly called “the worst constitutional decision of all time.” Kennedy is famous for declaring same-sex marriage a constitutional right in Obergefell, a decision which, even if you agree with its conclusion, is totally incoherent both internally and in light of Kennedy’s own precedents (especially Casey!). O’Connor struck down a modest law against partial-birth abortion in 2000’s Stenberg v. Carhart and personally saved affirmative action from history’s dustbin in the bizarre Bollinger decision. And Souter simply joined the Court’s left wing outright, voting reliably with Justices Ginsburg, Breyer, and Stephens for most of his tenure.

So President Bush’s personal assurances did not reassure the thrice-burned right wing, especially the pro-lifers, however well-liked he was. Activists had trusted the words of Edwin Meese, John Sununu, and George H.W. Bush decades earlier, let nominees slip by with little paper trail, and so lost their chance at the Court for a generation. There was simply nothing out there to demonstrate Harriet Miers’ bona fides as a textualist who followed the Constitution. There was no way of knowing whether she would be another Scalia… or another Souter.

Conservative martyr Robert Bork called Miers’ nomination a “slap in the face” to the conservative legal movement. Unable to sell the nomination to the very demographic who had just re-elected him, Bush was forced to “allow” Miers to withdraw a few weeks after nominating her. The seat went to Samuel Alito instead.

Which brings us to Thomas Hardiman. Judge Hardiman sits today on the Third Circuit. He has shown up on President Trump’s Supreme Court shortlist twice in a row, losing out to Judge Gorsuch in 2017 and Judge Kavanaugh in 2018. He has faced some important issues in his time in the judiciary, and he has often acquitted himself as a textualist. His work on the Second Amendment is particularly well-regarded among conservatives. It is believed that he appeals to President Trump in part because of his phenomenal biography: Hardiman is one of too few federal judges who come from outside the Ivy League, with an undergraduate degree from Notre Dame and a J.D. from Georgetown, which he paid for by working nights as a taxi driver.

However, I have concerns about Judge Hardiman, as do some others. As with Ms. Miers, though I bear Judge Hardiman no ill will, I am not confident that Justice Hardiman would adhere to the Constitution on the issues that matter most. (P.S. As with everything in our utterly dishonest judicial politics, that’s code for “Roe v. Wade.”)

And, as you can see, I said as much on Twitter! So far, so regular Thursday. But my night was about to take a surprising turn.

A few minutes after my tweet, I got an email with no body but a heck of a FROM line:

(I’ve obscured the full email address because, while I’m sure it isn’t a state secret, Judge Hardiman’s professional email address is also not, as far as I know, public knowledge.)

I wrote back with my phone number, and, 90 seconds later, I got a call from the 412 area code. The man on the other end introduced himself as Thomas Hardiman, and said he wanted to touch base with me.

I am not a smart blogger, so I did not record the call. I did start writing this blog right away, so the call would be fresh in my memory, but this is still reconstructed from my scant notes, not verbatim. Please bear that in mind. Throughout our conversation, Hardiman was friendly, gracious, and respectful. If he was at all frustrated with me or what’s said about him, it didn’t come through in his tone or his words. While my account may read like Hardiman talking a lot and me listening, we had a good give-and-take. (It’s just that what I said isn’t really newsworthy, so I’ve omitted much of it.)

Judge Hardiman said he had seen my tweet and wanted to register his polite disagreement with my assessment of him. The idea that he is some kind of a David Souter, Hardiman said, has been in circulation in certain parts of the Right, and he doesn’t think it accurately reflects his record. In particular, Hardiman said that the Wall Street Journal had said some things that were not altogether fair to him… particularly once the Journal became enthusiastic about Judge Kavanaugh.

And, fair enough. Once it picks a side, the Journal certainly has been known to throw spitballs. I remembered a piece the Journal ran in July which was, indeed, quite critical of Judge Hardiman:

The biggest gamble would be if Mr. Trump went beyond those three to choose Thomas Hardiman of the Third Circuit Court of Appeals. Mr. Hardiman is said to be easier to confirm because he had a hardscrabble upbringing. But that’s the Souter trap of putting biography over a legal record. Our reading of Judge Hardiman’s opinions is that they are not as impressive or extensive as those of either Judges Kavanaugh or Kethledge.

I suspect that wasn’t their only piece promoting Kavanaugh or Gorsuch at Hardiman’s expense.

I chimed in, though, that there’s a lot of suspicion of Hardiman on the Right because he is strongly supported by Judge Maryanne Trump Barry. Judge Barry serves with Hardiman on the Third Circuit and (according to reports) personally pushed Hardiman’s name forward when President Trump was considering Justice Scalia’s replacement. This may have carried a lot of weight, because Judge Barry is President Trump’s older sister. Unfortunately, while a George W. Bush appointee, Judge Barry is widely reviled on the Right (or, at least, in my corner of it) because of an aggressively pro-abortion rights opinion she wrote in 2000, which not only struck down a New Jersey law against partial-birth abortion, but went beyond what the Supreme Court required in Stenberg v. Carhart and dripped, frankly, with contempt for the pro-life cause.

Now, I did hasten to add that, as Ed Whelan pointed out in 2017, Judge Barry’s very bad decision in Planned Parenthood v. Farmer and the very poor comportment of her little brother does not mean everyone Barry likes is terrible forever. After all, Barry was a big fan of Samuel Alito (her colleague who dissented in that case), and he’s turned out wonderfully. But, still… if she thinks Hardiman’s the right guy for the Supreme Court, with her very problematic views on at least abortion law, how much can those of us with different views feel confident that Hardiman’s our man?

Judge Hardiman answered that his relationship with Judge Barry, as well as the other judges on the Third Circuit, is a sign of his ability to build strong relationships with others, regardless of party or nationality or religion, and to win their respect despite frequent disagreements. Judge Barry respects him, and he likewise, but this doesn’t mean they’re of the same judicial mindset.

Hardiman called my particular attention to the case Busch v. Marple Newtown School District. Hardiman called his opinion in this case — gosh, I wish I’d written this down — but it was something like, “A dissent that really goes to the heart of who I am as a judge.”

In Busch, the parents of a kindergarten boy, one Wesley Busch, had been invited to Wesley’s class to participate in “All About Me” week. Each student’s parents were invited to a kind of parental “show and tell” where they would share “individual interests,” perhaps taking the form of a “small craft or story.” Young Wesley asked his mom to read a short passage from his favorite book, the Bible. The school principal barred this, saying that it would violate the “separation of church and state.” The parents disagreed, arguing that this violated their First Amendment rights. The school won the case, with Judge Barry joining the decision in separate concurrence.

Judge Hardiman, however, dissented. In his conversation with me, he described the school’s (and the court’s) position as “straightforward viewpoint discrimination,” which is simply inimical to the First Amendment. It’s a dissent he is proud of, and nicely illustrates his view of the Constitution. I had to admit I had not read the case in my previous review of his work.

Judge Hardiman also commended to me his decision in Pennsylvania v. Trump, where he ordered that the Little Sisters of the Poor be permitted to join an ongoing lawsuit over Affordable Care Act regulations in order to protect their hard-won right to conscientious objection from the ACA’s contraception mandate. I told him I had read this opinion and liked it, but, now that I’m looking at it, I’m realizing I have never read this; I had this confused with one of the other contraceptive mandate cases. Shoot.

Above all, Judge Hardiman wanted to emphasize to me that he takes the Constitution very seriously. The Constitution, its structure, the republic it gave us: these things, Hardiman said, are what attracted him to the practice of law and the judiciary in the first place. He mentioned that he wants all the best for Ray Kethledge and Amy Coney Barrett, both of whom he counts as friends and both of whom would make, in his view, excellent Supreme Court justices, but contended his own view of the Constitution comes through clearly in his written opinions.

Here I interjected. When I compared him to Harriet Miers, I wasn’t trying to say there that Judge Hardiman would necessarily be a bad Supreme Court justice. He might very well be a great one. There are certainly reasons to think so. Harriet Miers might well have been a great justice, too. There were reasons to think that, too.

The trouble, for me, is that I don’t see in Judge Hardiman’s public record adequate assurances that he thinks the way I do about the constitutional issues that matter most to me.** He may very well think as I do, but I haven’t been able to prove it to my own satisfaction. Although, I had to admit, I am not nearly as familiar with Hardiman’s body of work as he is, I couldn’t look in his history and find a really reassuring case like Garza v. Hargan, the case where Judge Kavanaugh argued convincingly against a government duty to facilitate an abortion for an unaccompanied minor who illegally entered the country. Kavanaugh did his duty as a lower-court judge, obeyed the Casey precedent, and did not expand his argument beyond what was necessary, but his interpretation of Casey was narrow and relied on language that pro-lifers found as encouraging as pro-choicers found it alarming.

Of course, not every issue comes before every court. Hardiman has no record on abortion, he noted, because he has faced no cases that are directly about abortion. I said, “Well, Judge, what I really want to ask you is: if named to the Supreme Court, would you be a reliable vote against Roe versus Wade? But, of course, I can’t ask you that question, and you can’t answer it, and, if you did answer it, you would never be confirmed to the Supreme Court.” Chuckling, Judge Hardiman agreed: I could definitely not ask him that question.

But, while he hadn’t ruled on abortion directly, he did point out the closest thing he’d had to an abortion case, United States v. Marcarvage, where Hardiman joined an opinion protecting an anti-abortion protester who had been convicted of violating a protest permit by protesting outside a designated area. He also mentioned other areas where “the Left” had pressed hard on the Constitution, but where he had stayed true to it, which he thought was enlightening about his overall approach to law. He pointed me in the direction of his Second Amendment jurisprudence, which has indeed earned him a sterling reputation among judicial conservatives. In that jurisprudence, particularly his dissent in Drake v. Filko, Hardiman has been one of relatively few lower-court judges who have been willing to read Heller and McDonald in (what I consider) an honest fashion, contending that the individual right to bear arms recognized in Heller was improperly subjected to a “justifiable need” test by the state of New Jersey.

Hardiman also said that, for a fair overview of his work as a judge, not written by a conservative but by someone who was very fair-minded in assessing him, I should look up Amy Howe’s 2017 profile of Hardiman for SCOTUSBlog. Now, of course, I read all the SCOTUSBlog profiles voraciously whenever a vacancy opens up, because SCOTUSBlog is great… but I will definitely be rereading this one now that I know it isn’t just Amy Howe’s take on Hardiman. It is, in Hardiman’s own opinion, one of the best public overviews of his judicial thought out there.

Overall, Hardiman considered my comparison to Miers somewhat unfair, or at least inaccurate, for this reason: Harriet Miers had been a corporate lawyer, and never really had the opportunity to express her judicial philosophy during her career. As I characterized it, we were asked to take her on faith. But Hardiman is a federal judge. He’s been there for a while. Between majorities, concurrences, and dissents, he has over a hundred written opinions to his name, to say nothing of all the opinions he’s joined over the years. “Once you have that many opinions, you can’t hide what kind of a judge you are.”

At this point, I offered to take down the tweet that had started all this. Twitter not being a good place for nuance, I had dashed off the tweet rashly, without expecting that anyone on Earth would read it, much less that Judge Hardiman himself would bump into it. I mean, he has a point! Whatever my reservations about Hardiman, he does have a paper trail, and, by historical standards, it’s fairly thick. Comparing him to Harriet Miers was glib. It got my point across, but, like so many glib tweets, it also wasn’t fair. Talking to the man himself made me realize that. It’s not the first time I’ve been too quick off the block with a hot take on Twitter.

However, Judge Hardiman insisted that I feel under no obligation to take down the tweet. “You have every right to your opinion,” he said. “I’m a big believer in the First Amendment.” Even when people express very bad ideas, Hardiman believes they generally have a right to say them. Hardiman called to have a chat with me about how he sees his own record, not to argue with me for tweeting a criticism of him. (I still plan to delete the tweet.)

I eventually wondered, “Why me?” I’m surely not the only person on Twitter who’s talked about Judge Hardiman in the past few days, especially with how rocky the Kavanaugh hearings have gone. Hardiman said that he reached out to me because he had taken a look at my blog after seeing my tweet and thought it showed I was a “deep, intelligent” guy with some interesting ideas. There are a lot of fever-swampy areas on the right-wing blogosphere (he didn’t use that specific term), where reaching out would not be productive, but Hardiman expressed that he thought he could have a conversation with me, given what I’d posted on the blog. Of course, some might argue that liking my blog is a sign of bad judgment! But I, for one, am flattered.

Soon thereafter, we thanked one another for our respective time, I wished him well in his career prospects, and we hung up the phone. All told, I figure we talked for about 15 minutes. Feel free to critique my interview technique. There are many questions I should have asked but was too discombobulated to work out. But that’s on me.

I spent the rest of the night kicking myself for failing to ask Judge Hardiman about his feelings on Justice Anthony Kennedy. Longtime readers of this blog will know that I think Kennedy is the worst Supreme Court justice, worse even than more consistent ideological opponents of mine like Ginsburg and Kagan. (Jeffrey Rosen is no ally of mine, but his take on Kennedy for The New Republic is more or less right.) But Judge Hardiman, like Judge Kavanaugh, clerked for Kennedy, and I understand there’s considerable personal and professional affection between them. I’d love to have gotten some insight into that relationship, and particularly how Judge Hardiman would compare and contrast himself with Justice Kennedy. But I didn’t! Sorry, readers.

So what are my takeaways?

In one sense, nothing has changed. Hardiman didn’t reveal anything shocking to me. His record is still exactly what it was before our conversation, and that record is still missing enough to make me uneasy. You can call me a paranoiac if you like, and you’d probably be right, but the specter of O’Connor and Souter and Kennedy haunts my dreams. It takes a very high standard to put me at ease about a judicial nominee, and, until I actually sat down and read Garza v. Hargan and a few other cases, I was pretty worried about even Judge Kavanaugh’s conservative thinking.

With Kavanaugh, though, I could always look for reassurance to his strong score on the Clerk-Based Martin-Quinn scale, a test that infers a judge’s ideology based on the ideology of Supreme Court justices for whom the clerk has worked. Hardiman has no CBMQ score, because his clerks have not gone on to the Supreme Court, so we’re left with his Judicial Common Space score. Hardiman’s JCS score is crap, placing him firmly in the Kennedy centrist region… but the JCS is kind of a crap measurement to begin with. (It measures the ideology of the people who appoint judges rather than anything done by the judges themselves.) So I’m not going to hold Hardiman accountable for the people who appointed him. But it does deprive me of a source of reassurance.

If I wanted reassurance with Gorsuch, I could just go read his book or his marvelous paeans to Justice Scalia. With Barrett, I could just go rewatch Senator Feinstein’s bigoted “dogma lives loudly” attack on her, or look at her very thoughtful writing on the dangers of overreliance on stare decisis**. With Hardiman, I never knew where to go to find clear declarations of his judicial philosophy.

But that, at least, has changed somewhat. Hardiman has personally pointed out to me the opinions he thinks are most useful to commentators trying to suss out how he views the Constitution: Busch v. Marple Newtown, the Little Sisters of the Poor intervention in Pennsylvania v. Trump, and his Second Amendment jurisprudence. I can now read (or re-read) those opinions, knowing that they are central to Hardiman’s thought, and judge him again in their light. Whether I’ll be impressed or left sharing the Wall Street Journal‘s impression, I don’t know, but I’ll give his thinking a fair second look before I draw new conclusions. I owe him that much, after his respectful call.

Speaking of which, another thing that’s changed: it’s hard not to be charmed by someone who calls you out of the blue to politely debate your thoughtless tweet. And Judge Hardiman was charming and honest throughout.  Before tonight, I neither liked nor disliked him. He was a guy from the news whose writing I needed to judge. Now, I like him. He seems like a nice guy, and he apparently shares my weakness for late-night Twitter — but at least has the fortitude to not actually tweet. (Never tweet, kids.) If he’s ever in the Twin Cities area, I’d love to grab a drink with Judge Hardiman.

Moreover, I think it’s revealing that Judge Hardiman is sensitive to my comparison of him to Harriet Miers or the even less kind comparison to David Souter that’s out there. (He did actually use the word “sensitive.”) If he does see himself as a more moderate or left-leaning judge, it would a bit strange of him to call up (let’s be honest here) an obscure blogger who characterized him that way to dispute the point. He is determined to be seen as a judge who is faithful to the text of the Constitution, even by folks like me who don’t really wield any influence. He stands to gain very little from convincing me he really is a judge who adheres closely to the Constitution, which suggests that the reason he was trying to convince me adheres closely to the Constitution is that he actually does adhere closely to the Constitution as a matter of conviction.

I’ll note that it is intriguing that we had this conversation last night, a few hours after the Kavanaugh-Ford hearings, and leave it at that. I’m not sure what, if anything, to read into that, so I won’t.

I think we learned tonight that Judge Hardiman follows @asymmetricinfo; otherwise, I can’t imagine he would have seen my tweet at all. That is an excellent choice that speaks well of him personally and professionally.

Which leads me to my last takeaway from tonight: be kind on Twitter. You never know who might be reading.

*In the parlance of the times, they were called “strict constructionists.” Strict constructionism has been rightly critiqued and the conservative mainstream evolved into textualism.

**This is, again, always, code for Roe v. Wade.

Nobody seems to have pointed this out yet, so I guess I might as well put something up quick.

President Trump is not a big fan of net neutrality, and his new FCC commissioner, Ajit Pai, is, uh… really not a fan. Mr. Pai is already working on rolling back the FCC’s net neutrality rules, which were passed under President Obama. Most conservatives agree with Trump. Judge Gorsuch, of course, is a conservative nominee appointed by an anti-net neutrality president. So the going assumption is that Gorsuch will hurt the cause of net neutrality if confirmed to the Supreme Court. That he will not protect the open internet.

This is a mistake.

“Net neutrality,” for those of you who have never read my gigantic posts about it, is the principle that internet service providers (such as Comcast) have to allow their users equal access to the entire Internet. Under net neutrality, Comcast can have its own video service that competes with YouTube, but it cannot block YouTube from its network to force you (the Comcast subscriber) to use the Comcast video service. Nor can it treat its videos differently from YouTube videos as they travel down the wire to your computer: you get both videos as fast as possible, based on whatever data rate you are paying for. Nor can Comcast force YouTube to pay extra to connect with its network. And so forth.

This is a fundamental architectural principle of the Internet. It was the law of the land for the Internet’s early, formative years, and I explain why it is still necessary today at absurd length in my two previous articles on the subject: “A Sorta-Technical Overview” and “Why Free Marketeers Want to Regulate the Internet.” Vint Cerf called the second one a “must read,” and I can die happy knowing that. I’m not going to explain it further here.* It’s time to talk about Gorsuch.

No, wait, it’s time to talk about the Brand X.

On the Internet, there are two kinds of provider. There are content providers like Google and Netflix and… well, this blog. We create stuff that people want to see and we put it on the wires. Then there are Internet Service Providers (ISP), like Comcast and CenturyLink, which actually own the wires.

When the Internet was first created, the ISPs were regulated as “common carriers,” like phones and airlines. Phones and airlines have to sell bandwidth (or seats) to any customer who has the money to pay, without discrimination, just as a net-neutral ISP has to carry content for any customer with money to pay, without discrimination. If you think that sounds a lot like net neutrality, you’re right.** For early ISPs working under this regulatory regime, net neutrality was “baked in” by pre-existing laws originally written for phone companies.

In 1996, Newt Gingrich’s Congress passed a law (which President Clinton signed) reforming telecommunications regulation for the Internet Age. Although Republicans love deregulating things, their reforms left the common-carriage requirements on ISPs untouched. The Republicans opened up a lot of space for content providers, and they tried to create competition in the ISP market, but they retained the essential protections of the original Telecommunications Act. ISPs would continue to operate as common carriers for many years to come, through the entire ’90s tech boom and well into the post-bust recovery.

Then, in 2002, George W. Bush’s did something very strange. All of a sudden, they radically re-interpreted the Telecommunications Act. Their new opinion, they announced, was that ISPs actually were not a telecommunications service after all. This meant the FCC could no longer regulate ISPs as common carriers. Since ISPs were no longer common carriers, net neutrality was no longer the law of the land. It became a mere option… one which the ISPs were quick to abandon and abuse.

Worse: this wasn’t some well-meaning attempt to correct the improper enforcement of the law. To put it charitably, the FCC’s legal reasoning for this conclusion was garbage. It was, in fact, a bald-faced attempt by the Bush White House to deregulate ISPs without going through Congress–and everyone admitted this, including the FCC.

There was, of course, a lawsuit. A small ISP called Brand X Internet, which needed common carrier treatment to move its traffic through other (larger) networks, was going to be wiped out by (now legal) monopolistic practices of other, larger ISPs. Brand X sued the FCC, among others, for violating the Telecommunications Act of 1996, which, as previously stated, required ISPs to be treated as common carriers.

The case was called National Cable & Telecommunications v. Brand X, and it went all the way to the Supreme Court in 2005. It ended up hinging on a strange legal doctrine called Chevron Deference.

Named for a regulatory case from the 1980s, Chevron v. Natural Resources Defense Council, the principle of Chevron deference says that the courts should not rely on their own interpretation of the law when the executive branch is involved. Instead, courts should defer, whenever possible, to the legal interpretations put forth by executive agencies like the EPA or the FCC.

When an executive agency comes up with a novel interpretation of a law, which happens a lot these days, courts ask two Chevron questions to decide whether to accept that interpretation. First, the court asks whether Congress has unambiguously addressed the issue in question (whatever it is). If there is no ambiguity, then the law of Congress must stand. However, if there is ambiguity–even a little– then the court decides whether the agency’s official interpretation is “permissible.” Not natural, not reasonable, not obvious… “permissible,” within the bounds of the English language. No matter how tortured the logic or the language, if the agency interpretation is “permissible,” then, Chevron says, the court must accept it.

In other words, if an executive agency can find even a small silver of ambiguity in a law passed by Congress, the agency can take that ambiguity, wedge a new ruling into it, and twist the language as much as they need to to achieve whatever policy goal they want, and to heck with Congress. Even if the agency’s interpretation runs pretty much contrary to every reasonable reading of the law, as long as it is technically permissible, the court has to accept it. That’s Chevron deference. (And, yes, there are theoretically limits on this agency power, but, in practice, it has given the executive branch vast power to do nearly anything it wants, regardless of what the law says.)

Okay, back to 2005 and Brand X.

The FCC ruling deregulating ISPs was a doozy. Everyone on the Supreme Court agreed that the ruling was not the most natural reading of the Telecommunications Act. In fact, the judicial branch had already previously ruled in other cases that another reading of the Telecommunications Act should be followed… one that preserved the common-carrier rules for ISPs.

However, the Supreme Court concluded, by a 6-3 majority, that the Telecommunications Act was just ambiguous enough to allow alternative interpretations, and the FCC’s ruling was just reasonable enough to qualify as a “permissible” construction in the English language. Therefore, under Chevron deference, the Court decided it had no choice but to accept the FCC ruling, even overturning the judicial system’s own prior rulings to support the FCC. Brand X lost, and the FCC’s deregulation went ahead. That was the beginning of the net neutrality battle.

Justice Scalia wrote a scathing dissent in Brand X. Justice Scalia was a conservative,  so he liked deregulating things as much as the next Republican, and he even agreed with Chevron deference in principle. But, Scalia insisted, the FCC ruling failed the Chevron test. The Telecommunications Act was unambiguous about regulating ISPs as common carriers, and, even if the Act were ambiguous, the FCC’s ruling was an absurd and totally impermissible re-interpretation of the law. Scalia may have liked the outcome (he didn’t say), but he argued–correctly–that the FCC had exceeded the authority granted to it by Congress… even under Chevron deference.

But Scalia was in the minority. Brand X lost. In the dozen years since, the FCC has dithered over ISP regulation, unable to make any ruling that sticks for more than a couple years at a time. Net neutrality has been eroding apace. Although it is not yet to the point where consumers are taking regular notice, it is already driving up consumer prices, as ISPs use network leverage to force services like Netflix to pay ransom money or lose access to its paying customers. All because of Chevron deference.

Now here comes Gorsuch. Here’s something Judge Gorsuch wrote last year, in a concurring opinion on a case (this one about immigration law) that also happened to hinge on Chevron deference:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth…

[W]hat would happen in a world without Chevron? If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute. But de novo judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law. It would avoid the due process and equal protection problems of the kind documented in our decisions. It would promote reliance interests by allowing citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election. And an agency’s recourse for a judicial declaration of the law’s meaning that it dislikes would be precisely the recourse the Constitution prescribes — an appeal to higher judicial authority or a new law enacted consistent with bicameralism and presentment. We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change — except perhaps the most important things.

These are the first and last paragraphs, respectively, of a carefully written, very polite, 23-page concurrence in which Gorsuch attacks Chevron deference at every level. In the end, Judge Gorsuch calls on the Supreme Court to reconsider and overturn Chevron entirely. This is noted by many people as a huge difference between Gorsuch and Scalia; Scalia was a staunch defender of Chevron, while Gorsuch is its most prominent opponent.

This has many implications, touching all sorts of issues, and it has lots of people on all sides talking–some hopefully, some fearfully. I won’t go into all that.

But what does it mean for net neutrality?

If Justice Gorsuch reaches the Supreme Court, he could lead a judicial movement to overturn or limit Chevron. Given his record on Chevron, this is widely expected, and Gorsuch will have a considerable amount of time to do it, since it’s a lifetime appointment.

Brand X is known for being such an extreme application of Chevron that practically any limitation of Chevron will lead to Brand X being overruled or drastically narrowed (although not necessarily immediately; the law moves slow). Gorsuch needs only be slightly successful in limiting Chevron to put Brand X at risk.

If Brand X were overturned, it would be very good news for net neutrality activists. The Telecommunications Act of 1996 is still on the books. It still, pretty unambiguously, demands that ISPs be regulated as common carriers. The FCC got around that with a bunch of legal argle-bargle that was confirmed valid by Brand X… but, if Brand X falls, so does the FCC’s justification for not regulating ISPs correctly.

In short, overturn Brand X and you bring back ’90s-era net neutrality. President Trump couldn’t stop it. The FCC couldn’t stop it. Al Gore couldn’t stop it. The only thing that could stop net neutrality at that point is Congress, and Congress has too many net neutrality advocates for a change in law to happen.

I haven’t the faintest idea what Judge Gorsuch thinks about the policy of network neutrality. He’s a conservative, so he may well oppose it (though I’d love to persuade him otherwise). But if there’s one common theme in Gorsuch’s work, it’s that he doesn’t rule for his favored policies; he rules for the law, whatever it may be.

This is very good news for net neutrality advocates, because, despite the last decade of silly legal acrobatics, the law is on our side. It always has been. That makes soon-to-be Justice Gorsuch a powerful ally.

Let’s hope his colleagues on the court are as open-minded to reconsidering bad precedents as he.

NOTES

*I still owe this guy a real reply, though, so rest assured I still have more to say about NN.

**This is not an exact analogy, but the alternative is that I spent six pages explaining how Title II of the Telecommunications Act works, and none of us wants that. Tim Wu more carefully defines net neutrality and their relationship with common carriage rules in his seminal paper on the subject.