In “Uncertain Justice,” Joshua Matz and I devote many chapters to such familiar topics as equality, gun rights, presidential power and privacy. We aim in those chapters to shed new light on those important issues. More novel, though, is the way the book identifies themes that cut across many of the standard topics, revealing connections and contradictions that haven’t been sufficiently explored in the past. The intent is to give readers new sources of insight into the intriguing paths along which the court is moving.
A prime example is the chapter entitled “Rights for Sale,” a chapter that helpfully opens with a leading question: “What do you have when a lawyer is buried up to his neck in sand?” (The obvious answer: “Not enough sand.”) After a brief discussion of why, all joking aside, lawyers play a key role in protecting civil rights, we touch upon Legal Services Corporation v. Velazqez, a 1996 decision invalidating a law that made public funding of legal aid groups conditional on those groups not challenging any welfare law on constitutional grounds.
Although Velasquez was decided mainly on separation of powers grounds, it raised a profound question about limits on the government’s ability to offer us deals — whether merely tempting or effectively coercive — to give up (or sell) our constitutional rights.
Since John Roberts joined the court as chief justice, similar questions of coercion, bribery and influence have become only more important. They include a search for limits on federal power to coerce others (whether individuals or states); limits on government power to bribe others through inducements short of coercion (e.g., grants with strings attached, tax penalties on those who don’t toe the line, or sentencing leniency for those who waive trial rights and plead guilty); and limits on government power to confront people with choices between constitutional evils (e.g., either express messages with which you disagree or publicly “out” yourself as a dissenter from those messages).
Here, I’ll discuss briefly just a few examples covered in “Uncertain Justice,” marking the outlines of how these crucial themes play out.
First, the Health-Care Case. In his controlling opinion, Roberts, joined not just by the four other right-leaning justices but also by Justices Stephen Breyer and Elena Kagan, struck down federal power to coerce states into expanding Medicaid to cover millions more people at mostly federal expense, even as he upheld federal power to offer states that option. At the same time, joined only by the four other conservatives, he invalidated the “individual mandate” to the extent it coerced the purchase of health insurance, even as he upheld the “mandate” as a tax penalty that really just encouraged participation in the insurance market.
Although the Medicaid ruling has been seen as a defeat for President Obama, the Affordable Care Act and the Democratic Party, whereas the ruling upholding the mandate has been seen as a win for those same groups, of more lasting importance is the overarching theme those rulings had in common. The Constitution as interpreted by the Roberts Court, which displays a clear libertarian impulse, frowns on government using the power to coerce. It does so by increasingly tilting the constitutional playing field in favor of choice-respecting forms of regulation. Government may (relatively) freely encourage, influence, and sometimes even bribe, but faces much sharper limits when it tries to force certain kinds of conduct. This is an important principle, although how it will apply elsewhere remains deeply uncertain.
Second, plea bargaining. A long and storied literature debates whether it is ethical for the government to offer defendants lower sentences in exchange for guilty pleas. Doctrinally, though, plea bargains are iron clad: however coercive or perilously close to outright bribery they may be in practice, they are (with only a few rare exceptions) accepted as a crucial and tolerable part of the modern criminal justice system. The defendant gives up all the rights that come with a trial and in exchange receives less punishment.
For a long time, federal courts have steered clear of efforts to regulate plea bargaining. (Although Judge Jed Rakoff of the Southern District of New York has recently called for changes to this norm.) That changed, at least partially, in 2012, when a 5-to-4 majority held in Lafler v. Cooper that defendants are entitled to effective assistance of counsel in the plea bargaining process. Writing for the court, Justice Anthony Kennedy reasoned that we must reimagine the plea process, given “the reality that criminal justice today is for the most part a system of pleas, not a system of trial.” As he noted, we don’t necessarily have to think of the plea bargain as a coercive or otherwise suspicious bribe to abandon rights — a mindset that had encouraged judicial non-intervention, since creating workable, robust doctrine to limit the amount of temptation a plea bargain may offer would likely be a near-impossibility. Instead, he suggested, plea bargains can be treated as a substitution of one type of right (a fair plea bargaining process) for another (a fair trial). Prosecutors need not offer plea deals, but once they do, courts can at least indirectly target coercion and deception by ensuring that defendants are capably represented.
Finally, consider a few cases — most of them discussed in “Uncertain Justice” — in which the justices have displayed conflicting views about limits on government behavior that falls short of the actually coercive.
Last year, in Agency for International Development v. Alliance for Open Society, the Roberts Court struck down a law that made huge sums of money available to anti-HIV/AIDS activists, but only if they agreed not to spend it or their own private money to promote the legalization of prostitution or sex trafficking. (The vote was 6 to 2, with Kagan recused.) This requirement was a big deal because many HIV/AIDS groups work with foreign states and sex workers who are of a different mind, and could alienate them by expressing Congress’s chosen message. Even though there was no coercion here — the groups were free simply to decline the federal funds — Roberts held that Congress had violated the First Amendment. He reasoned that Congress may impose some conditions on non-coercive offers of money, but it may do so only if those conditions affect just the use of the government funds in question, not the use of a recipient’s private money.
AID struck a powerful blow against Congress’s efforts to “require [private groups] to pledge allegiance to the Government’s [policies].” In so doing, it made clear that, in some circumstances, putting dissenting groups at a disadvantage (by refusing to fund their projects) is unconstitutional even when the government isn’t actually coercing anyone. It also protected potential recipients from having to make a painful choice: accept the funds and lie by expressing Congress’s message; accept the funds and convey the complicated message that they had agreed to oppose prostitution only to obtain government funding; or decline the money at a huge cost. In other words, it saved groups from having to choose between being liars, hypocrites or zealots — a tough choice that they confronted only because of Congress’s tempting offer.
In AID, Justices Antonin Scalia and Clarence Thomas took the view that only coercion counts as a constitutional violation. They adhered to an analogous view in the recent town meeting prayer case of Town of Greece v. Galloway, this time joined by Roberts, Kennedy and Justice Samuel Alito, all of whom had voted with the AID majority.
In Greece, the majority relied on the lack of coerced participation to equate sectarian prayer sessions in local government — directed by volunteer prayer-givers at the audience of citizens present to petition and participate — with the ceremonial recitation of prayers at the start of legislative or judicial sessions, directed solely to public officeholders. In reducing Establishment Clause doctrine to an anti-coercion principle, Roberts, Kennedy and Alito stepped away from the insight that animated AID: sometimes, government conduct short of full coercion can implicate equally important constitutional values.
In other words, as six justices recognized in AID but only four appreciated in Greece, coercion is not at the root of every constitutional evil (or even most such evils). That’s why we need an anti-establishment clause and not just a free exercise of religion clause. As Kagan emphasized in her magnificent dissent, that is why the First Amendment should be interpreted to prohibit transforming town meetings at which ordinary citizens appear to win favorable treatment, avoid burdens and engage in self-government into events where those who don’t share the faith expressed by the government-chosen opening prayer are made to feel they don’t really belong.
Much as in AID, in Town of Greece the challenged policy forced citizens to choose to be liars, hypocrites or publicly-declared dissidents at the start of every town meeting. In Kagan’s words, this policy therefore violated the principle that “when the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another.” The majority disagreed. In so doing however, and in treating coercion as the sine qua non of establishment, the majority marginalized the many real-world effects of town prayer and therefore confined the scope of its inquiry in a manner that stands in some tension with the sensitivity to non-coercive state action displayed in cases like AID.
An occasionally overdone focus on coercion, however, is not the province of either side of the ideological spectrum. In Koontz v. St. Johns River Management District, the court held that a property owner’s rights were insufficiently preserved by his freedom to ‘just say no’ to the water district’s offer that he could develop the northern portion of his Florida land provided he pay the district to undertake an offsite mitigation project to enhance other District wetlands. The five right-leaning justices, speaking through Alito, concluded (although using the language of coercion) that the 14th Amendment limits even the kinds of voluntary bargains state and local governments can strike when dealing with private rights.
Ironically, it was the four more liberal dissenters, speaking through Kagan, who most explicitly insisted in Koontz that the whole point of the Constitution’s limits on how government can leverage its control over benefits is to avoid coercing people into giving up their constitutional rights. They adhered to this view even though the Court had rejected a very close cousin of it just a short while earlier in AID.
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The court has grappled at the same time with what might be regarded as the mirror-image of the limits the Constitution places on government power to manipulate private choice: namely, the limits the Constitution places, or fails to place, on private power to manipulate government choice, by making access to government officials and influence over their policy decisions a function of private wealth.
In Chapter 3 of Uncertain Justice, we survey many of these campaign finance cases to identify some hidden tensions and draw some vital general lessons.
Consider, for instance, the fact that the court has essentially ruled out the ability of lawmakers to regulate campaign finance on the basis of the seemingly commonsense conclusion that money buys influence over and access to the officials it helps elect. And consider that, at the same time, the court itself has relied on essentially the same conclusion about influence when the officials elected are state court judges and the money that helped elect them came from the parties whose cases those judges are hearing.
Of course, a central consideration is that, in the latter situation, the court has retained tight control over the question of when those judges must recuse themselves because of the risk that they’ll be improperly influenced. In the former situation, in contrast, the court is being asked to relinquish control to the very lawmakers people suspect of having been bought and paid for by the wealthy corporations and individuals whose campaign funding activities are being regulated.
Thus, in this term’s McCutcheon ruling, Roberts wrote that “those who govern should be the last people to help decide who should govern.” So a greater willingness on the part of the justices to trust themselves to regulate undue influence than to trust legislators to regulate the same phenomenon emerges as an unarticulated premise of the court’s approach to the way money can distort government processes in different settings.
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What emerges from this survey is a sense of this court’s uncertainty as it approaches questions of coercion, influence, and bribery in a wide range of constitutional contexts. In some cases it has placed coercion off-limits and thereby encouraged choice-respecting laws; in other cases it has struck indirectly at coercion by insisting on a more even playing field; and in still other cases it has struggled to determine when government conduct short of coercion rises to the level of a constitutional violation.
In “Uncertain Justice,” we survey many of these cases — as well as a few others — and draw some general lessons from this court’s fascinating, tortured and ongoing engagement with these profoundly important questions.