Liberty and Polarization in Yesterday's SCOTUS Opinions
by Michael C. Dorf
The Supreme Court decided two cases yesterday in which various Justices invoked "liberty" in odd ways. In Gamble v. US, the Court rejected an invitation to abandon the "separate sovereigns" principle under which double jeopardy protection does not extend to dual prosecution for the same conduct under substantively the same statutes at the state and the federal level. As I argued on the blog, I think the Court got it right, even though I also think a couple of Justice Alito's points in the majority opinion were off-target. I won't rehash my argument now.
Instead, I'll just note an odd argument made in each of the dissents (by Justices Ginsburg and Gorsuch). Justice Alito aptly summarizes it thus: "because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence." Alito's response is persuasive: Yes, he says, there is a sense in which federalism promotes liberty by dividing power, but it does not do so in every imaginable circumstance. He gives the example of the possibility of conduct being legal at the state level but illegal federally. He also gives the example of a single event giving rise to both state and local tax liability.
Justice Ginsburg responds in a footnote: "The analogy of the separate-sovereigns doctrine to dual regulation is inapt. The former erodes a constitutional safeguard against successive prosecutions, while the Constitution contains no guarantee against dual regulation." But that's a non sequitur. Justice Alito didn't invoke dual regulation as an affirmative basis for the separate-sovereigns doctrine; he invoked it defensively, to ward off the suggestion by each of Justice Ginsburg and Justice Gorsuch that there is some sort of free-floating obligation to ensure that federalism always promotes liberty. There is no such obligation.
If Justices Ginsburg and Gorsuch erred in their federalism-means-liberty argument in Gamble, at least they invoked liberty coherently. That's more than can be said for an aphorism that Justice Kavanaugh recited for the majority in another case decided yesterday--the ruling in Manhattan Community Access Corp (MCAC) v. Halleck that a private company administering a public access cable tv channel in NYC is not a state actor subject to the First Amendment. He wrote: "It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty."
Even if the bigger/smaller aphorism were a generally true proposition--it isn't, as I'll explain shortly--its use in MCAC would be inappropriate. The conclusion that MCAC is not a state actor meant that it was free to censor content in circumstances in which a government-run public access channel would not be. Put differently, here the smaller government (because MCAC was deemed outside the scope of the government) meant the smaller the individual (assuming that the aphorism means the bigger the government, the smaller the liberty of the individual, which is pretty clearly what its association with libertarianism means).
The backwards-ness of Justice Kavanaugh's aphorism is not peculiar to this case or these facts. It's a general characteristic of a finding of no state action. If the defendant is not a state actor, then the defendant is not bound by the Constitution, and therefore is permitted to take liberty-infringing actions that would be forbidden if state action were found. That's just nuts. Is society more free in virtue of the fact that private actors like Facebook and Twitter don't have to respect free speech? Sure, Facebook and Twitter are more free, but the rest of us, not so much.
That's not to say that Facebook and Twitter should be deemed the government. It is to say that the fact that they aren't so deemed is not liberty-enhancing in the sense that ought to matter.
To be sure, there are totally different contexts in which the aphorism's libertarian themes would lead to libertarian results. Suppose the question were whether the federal government has the power under the Commerce Clause to regulate the home cultivation of marijuana for personal use. Here, the larger the (scope of power of the federal) government, the smaller the (zone of liberty of) the individual. But the fact that one can imagine a totally different case in which the aphorism makes sense hardly justifies its invocation in MCAC, where it does not make sense.
Meanwhile, the aphorism is problematic apart from being inapt in MCAC. Here's a thread I posted on Twitter yesterday:
More importantly, it turns out my research on 3/ didn't go back far enough. So far as I'm aware, there are no pre-Prager uses of the exact phrasing in Justice Kavanaugh's opinion, but as Prof Brian Frye observed in a series of reply tweets, there are very similar precursors in the 1950s-1970s. I am happy to confess error and to be corrected on that point, although I don't think it changes my bottom line (and neither does Prof Frye).
Certainly the provenance of the aphorism does not have any implications for my substantive responses to it in points 4 and 5. I also don't think it changes point 6. Let me explain why.
In addition to Prof Frye's correction, I received a number of comments from Twitter users who, based on their profiles and other Tweets, appear to be either generally conservative or libertarian or both, in which they said that this phrase -- the bigger the government the smaller the individual -- is just a well-known saying. I have no reason to doubt that it is a well-known saying in the circles in which they travel. But I didn't know it, and the vast majority of my mostly liberal Twitter followers didn't either.
To be sure, when I read the line in Justice Kavanaugh's opinion, I instantly recognized the general idea. I was familiar with a similar aphorism that dates to the middle of the nineteenth century: the best government governs least. But the substantial difference in wording is important, because, by choosing a formulation that is widely known on the libertarian right but not among liberals (even civil libertarian liberals like me), Justice Kavanaugh and the Court's other four conservatives demonstrated that they share a world view with the people who get their news and opinion from right-wing media.
It might go both ways, of course. Perhaps there are words and phrases that liberal justices use in their opinions that baffle conservatives. Certainly one can find such words and phrases in left-leaning outlets. For example, Teen Vogue advises the use of gender-neutral pronouns such as nibling instead of niece or nephew. An opinion by Justice Sotomayor, say, using nibling might well lead to head-scratching on the right, but it hasn't happened yet, probably because Justice Sotomayor doesn't read Teen Vogue. (I don't either; someone forwarded me the article on gender-neutral pronouns.) And I'm generally skeptical that the phenomenon is symmetrical, because the mainstream left/liberal outlets are not quite the mirror image of Fox News and right-wing talk radio.
But if the echo chamber phenomenon is symmetrical, that's problematic too. Since Justice Kagan's appointment, every Democratic appointee has been to the left of every Republican appointee, so ideological splits are also party splits. Of course not every case results in an ideological divide. For example, Gamble didn't. But 5-4 ideological splits--as in MCAC--are exactly where one would expect to see the justices' different world views, indeed, their different worlds, having an impact on their language as well as on the result.
The Supreme Court decided two cases yesterday in which various Justices invoked "liberty" in odd ways. In Gamble v. US, the Court rejected an invitation to abandon the "separate sovereigns" principle under which double jeopardy protection does not extend to dual prosecution for the same conduct under substantively the same statutes at the state and the federal level. As I argued on the blog, I think the Court got it right, even though I also think a couple of Justice Alito's points in the majority opinion were off-target. I won't rehash my argument now.
Instead, I'll just note an odd argument made in each of the dissents (by Justices Ginsburg and Gorsuch). Justice Alito aptly summarizes it thus: "because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence." Alito's response is persuasive: Yes, he says, there is a sense in which federalism promotes liberty by dividing power, but it does not do so in every imaginable circumstance. He gives the example of the possibility of conduct being legal at the state level but illegal federally. He also gives the example of a single event giving rise to both state and local tax liability.
Justice Ginsburg responds in a footnote: "The analogy of the separate-sovereigns doctrine to dual regulation is inapt. The former erodes a constitutional safeguard against successive prosecutions, while the Constitution contains no guarantee against dual regulation." But that's a non sequitur. Justice Alito didn't invoke dual regulation as an affirmative basis for the separate-sovereigns doctrine; he invoked it defensively, to ward off the suggestion by each of Justice Ginsburg and Justice Gorsuch that there is some sort of free-floating obligation to ensure that federalism always promotes liberty. There is no such obligation.
If Justices Ginsburg and Gorsuch erred in their federalism-means-liberty argument in Gamble, at least they invoked liberty coherently. That's more than can be said for an aphorism that Justice Kavanaugh recited for the majority in another case decided yesterday--the ruling in Manhattan Community Access Corp (MCAC) v. Halleck that a private company administering a public access cable tv channel in NYC is not a state actor subject to the First Amendment. He wrote: "It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty."
Even if the bigger/smaller aphorism were a generally true proposition--it isn't, as I'll explain shortly--its use in MCAC would be inappropriate. The conclusion that MCAC is not a state actor meant that it was free to censor content in circumstances in which a government-run public access channel would not be. Put differently, here the smaller government (because MCAC was deemed outside the scope of the government) meant the smaller the individual (assuming that the aphorism means the bigger the government, the smaller the liberty of the individual, which is pretty clearly what its association with libertarianism means).
The backwards-ness of Justice Kavanaugh's aphorism is not peculiar to this case or these facts. It's a general characteristic of a finding of no state action. If the defendant is not a state actor, then the defendant is not bound by the Constitution, and therefore is permitted to take liberty-infringing actions that would be forbidden if state action were found. That's just nuts. Is society more free in virtue of the fact that private actors like Facebook and Twitter don't have to respect free speech? Sure, Facebook and Twitter are more free, but the rest of us, not so much.
That's not to say that Facebook and Twitter should be deemed the government. It is to say that the fact that they aren't so deemed is not liberty-enhancing in the sense that ought to matter.
To be sure, there are totally different contexts in which the aphorism's libertarian themes would lead to libertarian results. Suppose the question were whether the federal government has the power under the Commerce Clause to regulate the home cultivation of marijuana for personal use. Here, the larger the (scope of power of the federal) government, the smaller the (zone of liberty of) the individual. But the fact that one can imagine a totally different case in which the aphorism makes sense hardly justifies its invocation in MCAC, where it does not make sense.
Meanwhile, the aphorism is problematic apart from being inapt in MCAC. Here's a thread I posted on Twitter yesterday:
1/ In [MCAC] Justice Kavanaugh writes for the majority: “It is sometimes said that the bigger the government, the smaller the individual.”
2/ It is? Said by whom? I never heard anyone say this, and the opinion provides no citation, so I Googled it and found the Twitter feed of the Ayn Randian Atlas Society. But what is the origin of this saying?
3/ It appears to be an aphorism coined by a libertarian talk show host named Dennis Prager (who originally referred to “citizen” rather than “individual”). Various libertarian candidates for office have used the phrase, with or w/o attribution.
4/ The claim is false insofar as it asserts a linear relationship between the size of government and the ability of individuals to flourish. Ask Hobbes how well individuals do when one shrinks government down to nothing.
5/ The claim conflates government’s size and its reach. Govt could be large in terms of taxes or spending/GDP ratio but small in its intrusion on people’s lives. Welfare states need not be and generally have not been totalitarian states.
6/ But merits aside, note how five GOP-appointed Justices issue an opinion containing a slogan that seems to travel almost exclusively in the libertarian right-wing-o-verse.I want to correct one trivial and one not-so-trivial error I made in rushing the foregoing out. Trivially, in 4/ I ought to have said "monotonic" rather than "linear." If that's too much math for you, dear reader, just move on to the next, less trivial, point.
More importantly, it turns out my research on 3/ didn't go back far enough. So far as I'm aware, there are no pre-Prager uses of the exact phrasing in Justice Kavanaugh's opinion, but as Prof Brian Frye observed in a series of reply tweets, there are very similar precursors in the 1950s-1970s. I am happy to confess error and to be corrected on that point, although I don't think it changes my bottom line (and neither does Prof Frye).
Certainly the provenance of the aphorism does not have any implications for my substantive responses to it in points 4 and 5. I also don't think it changes point 6. Let me explain why.
In addition to Prof Frye's correction, I received a number of comments from Twitter users who, based on their profiles and other Tweets, appear to be either generally conservative or libertarian or both, in which they said that this phrase -- the bigger the government the smaller the individual -- is just a well-known saying. I have no reason to doubt that it is a well-known saying in the circles in which they travel. But I didn't know it, and the vast majority of my mostly liberal Twitter followers didn't either.
To be sure, when I read the line in Justice Kavanaugh's opinion, I instantly recognized the general idea. I was familiar with a similar aphorism that dates to the middle of the nineteenth century: the best government governs least. But the substantial difference in wording is important, because, by choosing a formulation that is widely known on the libertarian right but not among liberals (even civil libertarian liberals like me), Justice Kavanaugh and the Court's other four conservatives demonstrated that they share a world view with the people who get their news and opinion from right-wing media.
It might go both ways, of course. Perhaps there are words and phrases that liberal justices use in their opinions that baffle conservatives. Certainly one can find such words and phrases in left-leaning outlets. For example, Teen Vogue advises the use of gender-neutral pronouns such as nibling instead of niece or nephew. An opinion by Justice Sotomayor, say, using nibling might well lead to head-scratching on the right, but it hasn't happened yet, probably because Justice Sotomayor doesn't read Teen Vogue. (I don't either; someone forwarded me the article on gender-neutral pronouns.) And I'm generally skeptical that the phenomenon is symmetrical, because the mainstream left/liberal outlets are not quite the mirror image of Fox News and right-wing talk radio.
But if the echo chamber phenomenon is symmetrical, that's problematic too. Since Justice Kagan's appointment, every Democratic appointee has been to the left of every Republican appointee, so ideological splits are also party splits. Of course not every case results in an ideological divide. For example, Gamble didn't. But 5-4 ideological splits--as in MCAC--are exactly where one would expect to see the justices' different world views, indeed, their different worlds, having an impact on their language as well as on the result.