Dissensus on the Census

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New York State’s challenge to the decision to include a citizenship question on the 2020 Census administered by the Department of Commerce checks every box for a Trump era Supreme Court case. Here we have states and public interest groups trying to hold the executive branch of the federal government to account for a decision that is technically within its power, yet self-evidently made in bad faith, and for which pretextual support is offered after the fact.

ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)
ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)

The Trump administration argues that asking about citizenship will make it easier to comply with the mandates of the Voting Rights Act, but the evidence available to the Secretary of Commerce when he made this decision was that a citizenship question would significantly depress response rates—primarily in households with undocumented or Hispanic residents. This in turn would make all the Census data less accurate (including the data on citizenship). The 2020 Census data will be used to draw redistricting maps, so Republicans have an obvious partisan interest in artificially depressing the apparent population in communities with high numbers of immigrants because these tend to vote Democrat. Oral argument last week in Department of Commerce v. New York reflected that partisan advantage to the conservative party.F

The argument divided quite predictably along ideological lines. Even though Justice Ginsburg shows as 60% likely to vote for petitioner, this is an artifact of her low numbers—she was the only justice (other than Thomas) to be remarkably uninvolved in the argument. She spoke 77 words to the three advocates on the Respondent side, challenging the inclusion of the question, and 112 words to the Solicitor General, representing the Petitioner. In essence, Ginsburg was not showing her hand.

Country before party?

In contrast, the rest of the speaking justices were uninhibited in showing their partisan colors. The conservative justices barely spoke a word in response to the Solicitor General’s cavalier attitude to potentially depressing responses to the census, then pounced on Respondent advocates—particularly Barbara Underwood, representing New York State—questioning every methodological aspect of the expert certainty regarding the effect inclusion of the question will have.

For their part, the three other liberal justices were actively involved, but all shied away from stating the real problem: the bad faith of government, and Secretary Wilbur Ross in particular. Only at the end of the government’s main period of argument did Justice Kagan come close to naming the misconduct at the heart of the issue, with echoes of the Nixon hearings underlining her words:

Elena Kagan: And if I may say — I’ll just finish here, General — I mean, a lot of your argument — your briefs are extremely well done.

Noel J. Francisco: Thank you.

Elena Kagan:  But a lot of your argument just do not appear in the Secretary’s decision memo. And — and the fact that SG lawyers can come up with 60 pages of explanation for a decision, that’s all post hoc rationalization. The question is, what did the Secretary say? Where did he say it? When did he say it? What does it mean, other than just ipse dixit and conclusions?

We have seen that the new conservative appointees nominated by President Trump have looked like siding with the liberals on a few issues, such as ineffective assistance of counsel, excessive fines, or ensuring broader access to Kavanaugh’s much loved beer. But when it comes to rigging elections to benefit the Republican Party, be it through gerrymandering or corrupting the Census all of the conservatives fall into partisan formation.

An accurate census is vital to many things, as mentioned, but it is also key to the Democratic system functioning properly. Similarly, political gerrymandering can prevent meaningful democratic involvement. Without the Supreme Court monitoring the self-interest of politicians in these core constitutional matters, everyone will suffer in the long run. The fact that Republicans may benefit in the short term should not blind these justices to the good of the country.

Prediction:

Petitioner (Department of Commerce): Alito, Gorsuch, Kavanaugh, Roberts, Thomas

Respondent (New York): Breyer, Ginsburg, Kagan, Sotomayor

Most likely to switch: no one will switch

Trademark, scandal, and dodging precedent in Iancu v. Brunetti

Last Monday, the Supreme Court heard argument in Iancu v. Brunetti over whether the Patent and Trademark Office (PTO) can refuse to grant trademarks to “immoral” or “scandalous” matters, as permitted under §2a of the Lanham Act. Last year, in Matal v. Tam, the Court ruled that the same section’s mandate to the PTO to deny trademarks to “disparaging” matters was unconstitutional, thus prohibiting the PTO from denying trademarks to brands based on, among other things, racial epithets.

The right to offend minorities versus the right to offend the majority

Tam was a difficult case: the facts at issue concerned an Asian band, “The Slants,” who embrace that traditionally derogative term in an ironic sense, so as to undermine the power of the offensive term. Importantly, the Court did not limit its ruling to minorities reclaiming derogatory terms; instead it held that genuinely racist, sexist, and other derogatory trademarks could not be barred by the PTO on those grounds. Having unanimously (though in split opinions) decided Tam, it seems to follow inexorably that “immoral” and “scandalous” marks must receive like treatment. Paradoxically, however, the Court last week seemed considerably less inclined to allow the PTO to prohibit swear words than to prohibit racial slurs.

In the oral argument in Iancu v. Brunetti, many of the justices went to great lengths to try to differentiate Tam, and their efforts were less than convincing. Chief Justice Roberts seemed to be more concerned with the idea of obscene trademarks than with the idea of trademarks for hate speech. Justice Breyer suggested that swear words could just be considered “fighting words,” and thus an exception to First Amendment protection—yet a white-owned company exploiting the term “Redskins” is not. Many of the justices seemed willing to contemplate allowing words that are incredibly offensive to minorities to become federal trademarks, but not words that might offend genteel folks, such as the justices themselves.

ScotusOA.com prediction based on Supreme Court Oral Argument in Iancu v. Brunetti (April 15, 2019)

How can you give a FCUK™ without getting FUCT™?

We think that Justices Sotomayor and Kagan are in fact in Respondent’s camp, despite the unclear signals they gave. They both see Tam as binding precedent in this case. They also seemed concerned, like Justice Gorsuch, that there was no “rational line” through the PTO’s inconsistent decision-making regarding words that are phonetically similar to “fuck,” whether in past tense or present tense.

The PTO defines vulgarity, a subcategory of scandalous terms, as “lacking in taste, indelicate, and morally crude.” These terms are, of course, inherently subjective and discretionary and by its own admission the PTO’s application of this test has been highly inconsistent. The PTO has allowed “FCUK,” “Fugly,” and “PHUKIT” to be trademarks, but denied, in the case at hand, a trademark for “FUCT.” But the government promises only to apply the seemingly broad terms of the statute far more narrowly in future, and argues this should help it avoid the finding of unconstitutional vagueness.

A case driven by confusion and prim euphemism

The core goal of trademark is to avoid consumer confusion. Ironically, the Iancu v. Brunetti oral argument was itself clouded with confusion about some very basic features of trademark law. One striking misunderstanding came from Justice Alito:

Justice Alito: “What’s going to — if this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations? There’s going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive — they’re not unlimited. What’s going to — there’s going to be — those who get there first are going to be the ones who have these.”

We think the Justice might be confusing trademarks with the race to claim internet domain names. Registration of a mark in one classification does not preempt other non-confusing uses of the same word, either as a trademark or as a verb.

One thing that the Court did not seem confused about was the word at issue. Rather disappointingly for those among us who consider that swearing can be a linguistic art form, none of the advocates or the justices were willing to say the word “FUCT.” Instead, Mr. Stewart made sure the Court was clear on the term by using up his time by saying, more than once, this rather elaborate and wordy euphemism: the term that “would be perceived as the equivalent of the past participle form of the — the paradigmatic profane word in our culture.” Are the justices so sheltered and fragile that advocates must avoid even the conventional euphemism of “the f-word?” If so, this once again raises the problem of the unrepresentativeness of this elite group of jurists, particularly when deciding cases that hinge on the mores, perceptions, and likely inferences of the much more diverse U.S. population.

In similarly euphemistic terms, Mr. Stewart referred to a “particular racial slur [which] is considered uniquely offensive, even as compared to other racist speech” and argued that accordingly “it could be denied registration on the ground that it was an impermissible mode of expressing a racist — racist thought.” So the government wants not only to treat rude words as more offensive than racial slurs, it also wants to differentiate among the racial slurs that it considers beyond the pale, even after the Supreme Court has ruled that it does not have the power to make such determinations. We applaud the PTO’s act of civil disobedience here, but it is very hard to reconcile with the Court’s opinion in Tam. Similar acrobatics and logic will be needed to differentiate this case from Tam, but our analysis suggests that at least some justices on the Court are willing to limber up and do their best to take on that challenge.

It could be that the outcome will actually be unanimous for Respondent, if only because terms such as “scandalous” and “immoral” are clearly at least as unconstitutionally vague as “disparaging,” and would return the Court to regulating morality, a task it has struggled with in the past. As we have previously discussed, unanimous and lopsided decisions are hard to predict due to cheap talk at oral argument. Justice Breyer and the conservatives (other than Gorsuch) may have simply been clucking their displeasure at the vulgarity of the Respondent. They may in fact rule in his favor while clutching at their pearls. But the cavalier attitude of the Court during oral argument this Term toward other precedents makes us skeptical.

Prediction:

Petitioner (PTO): Breyer, Roberts, Alito, Kavanaugh, Thomas

Respondent (Brunetti): Ginsburg, Gorsuch, Kagan, Sotomayor

Who is the funniest justice? (and is that really something to be proud of?)

Judge walks into a (Supreme Court) bar

It is reported that when Justice Breyer was told he was the second funniest justice of the 2004 Term, he said something along the lines of “being the second funniest justice is like being the shortest tall person.”

Breyer was probably referring to the lack of tough competition: as others have anecdotally judged, and we have assessed after studying all 1,100 incidents of laughter at the Court between 2010 and 2017, most humor at the Court would not muster the $50 traditionally paid by late-night shows for jokes. We saw in the last post that oral argument has become a lot funnier in the last four decades, yet even in that considerably more comedic era, being the “funniest justice” may still not be a title that anyone should aspire to—not only because the humor is mediocre, but because being number one is arguably a badge of dishonor.

The reason is that what others have called the “funniest justice” scale looks very much like a scale of which justice is the most biased in their use of humor, as the next figure shows. On the left are the justices in the modern era who get the most laughs; on the right are the justices who show the greatest laughter disagreement gap—the tendency to make jokes during the time of an advocate whom they ultimately vote against.

ScotusOA: Use of Humor at the Supreme Court, for each justice, per
argument (Left); Agree/Disagree Difference in the same (Right)

There is a pretty clear correlation between being the “funniest” and being the most biased on this scale. Five of the seven justices who most often inspire laughter—Justices Scalia, Breyer, Rehnquist, Kagan, and Souter—were the top five most biased in their use of humor against advocates they end up voting against.

Not all of the so-called funniest justices are at the very top of the bias rankings, but all lie near the top in the broader historical rankings. Even less biased justices in modern terms, such as Chief Justice Roberts and Justice Gorsuch, who were third and fifth on laughs but ranked lower on the laughter bias ranking, still leave all of the justices serving in the early era far behind in terms of bias.

The secret to humor is … … timing

As we showed in our last post on this topic, laughter at the Court has significantly changed in the last four decades, increasing dramatically at the same time as the Court became more performative more generally. But that dramatic increase was not simply a product of a change in personnel: as we show in our comprehensive new study, Taking Laughter Seriously at the Supreme Court, forthcoming in Vanderbilt Law Review, the increase in laughter at the Court also stems from changes in the behavior of existing personnel. The next figure shows the rate of laughter for each justice on the Rehnquist and Roberts Courts, from the 1970s until the 2017 Term.

Term average for laughter per oral argument for each justice. Original figure in Jacobi & Sag, Taking Laughter Seriously at the Supreme Court (2019)

Of all the justices who were on the Court in this Century, it is the three with consistently low levels of laughter who are the outliers. Justice Thomas’ almost-zero level of laughter inducing episodes is unsurprising, since he barely speaks and, so, rarely gets a laugh. The other two low fliers appear to be Justice O’Connor and Justice Ginsburg, but both are only low on the humor scale compared to their modern contemporaries—when compared to all of the justices serving since 1955, Justice Ginsburg is in the top half and Justice O’Connor is very close to the top half.

Many of the other justices display an upward trend in their laughter inducing behavior. For instance, Justice Scalia, who is said to have changed oral argument when he entered the Court, actually spent his first two years getting few laughs, then had a clear consistent upward trajectory, more than doubling his laughs per argument in his later career. Similarly, coming in at number two overall, Justice Breyer also started off much lower on the laugh scale, as did Justice Stevens, Justice Kagan, Justice Alito, and Chief Justice Rehnquist—until he had a sharp drop off prior to his death.

The differences between the modern justices and the earlier justices, as well as the change within individual justices’ behavior over time, shows that laughter at the Court has changed dramatically in the modern era and strongly suggests that the shift on the Court is not simply due to personnel changes. As we have argued comprehensively elsewhere, the development of oral argument into more of a performance not only coincides with the politically polarized post-1995 period, but the level of political polarization predicts various performance behaviors, such as the justices making more comments than asking questions, interrupting, and talking more. Laughter fits that pattern too: at least in part, courtroom humor is an element of advocacy, and as we have shown, it is directed at weaker and inexperienced advocates with whom the justice tends to disagree. Laughter, in short, is a weapon, and the funniest justice is the most vicious.

The Supreme Court is toasting marshmallows while democracy burns

Partisan Gerrymandering and the Passive Court

Last week, the Supreme Court considered (yet again) whether there should be any constitutional remedy for outrageous and blatant partisan gerrymanders—specifically the Republican gerrymander in North Carolina and the Democrat gerrymander in Maryland. The two cases, Rucho v. Common Cause and Lamone v. Benisek, were heard back to back over a total of 2 hours and 11 minutes.

The central question at oral argument in both cases was not whether partisan gerrymandering was good or bad—everyone knows it is bad—the question was whether there is anything the Court can and should do about it. Most people think this a bit like asking whether there is anything the fire department should do when an arsonist is pouring gasoline on a schoolhouse. But to be fair to the justices disinclined to act, there are some thorny conceptual questions to address before the Court can take action against the politicians and mapmakers currently setting fire to our democracy.

The ability of politicians to choose their voters, rather than vice versa, is dramatically increasing. In 2016, only 40 of the 435 seats in the House were competitive, compared to 100 in 2010, when gerrymandering was already a problem. After the 2010 census, the problem of partisan gerrymandering intensified dramatically due of a perfect storm of increased computer power, better statistical models, and more granular and more reliable data on individual voters. If the Supreme Court fails to act in Rucho and Lamone, the number of competitive seats could drop even lower and our votes will mean less and less.

Not only do partisan gerrymanders reduce accountability in individual districts, they often lead to counter-majoritarian results state-wide. In the last election, Wisconsin Democrats received 205,000 more votes than Republicans, but won only 36 of the 99 available seats in the gerrymandered State Assembly. In another gerrymandered race in 2018, Ohio Democrats got nearly 50% of the vote but only a quarter of congressional seats. North Carolina is a virtually evenly divided “purple” state. Yet in 2018, where Democratic candidates won every statewide election on the ballot, Republicans won the 10 of 13 districts—just as their map makers promised them.

In Rucho v. Common Cause, Paul Clement tried to persuade the Court that there was no room for the Court to assess even such an extreme disregard for representing the will of voters. But as Justice Sotomayor crisply explained in the very first question of the day: “Mr. Clement, that ship has sailed in Baker v. Carr.” If racial gerrymanders and the unequal weighting of votes (the issue in the 1962 case of Baker v. Carr) are justiciable, it makes no sense to say that partisan gerrymandering is inherently non-justiciable.

Currently, legislators craft maps that involve absurd line drawing in order for politicians to insulate themselves from public accountability, as can be seen in the map below of
Maryland’s 3rd Congressional district. Without the possibility of judicial review, there is no reason politicians will have to follow even the most basic intuitive criteria, such as contiguity. Non-justiciability amounts to a free-for-all.

Maryland US Congressional District 3 (since 2013)

Politicians around the country will use all the information in their voter files and all the tricks of big data to ensure that the will of the people is irrelevant to determining who represents them. As well as the 10:3 split in North Carolina, we should expect to see a 18:0 split in Illinois if the Court holds that partisan gerrymandering in non-justiciable—anyone who thinks Mike Madigan will care about traditional districting criteria (other than the mandatory one-person-one-vote requirement) if the courthouse door is closed to complaints about partisan gerrymandering is a fool.

Disproportionate angst over proportional representation

The hardest question in partisan gerrymandering is how one can definitively say whether a district map or a statewide map is fair or unfair without simply relying on the fact that it fails to deliver proportional representation. Of course, proportional representation sounds appealing, but individual House members represent distinct geographic areas and are elected on a “first past the post” basis—both factors are likely to produce non-proportional outcomes from time to time, even without deliberate partisan bias.

Although Paul Clement is a gifted advocate, we thought that Justice Alito actually expressed North Carolina’s argument most effectively:

Justice Alito: But, if you have 24,000 maps that satisfy all of the so-called neutral criteria that you put in your computer program, don’t you need a criterion or criteria for deciding which of the 24,000 maps you’re going to choose? And implicit in Justice Kagan’s comments is the idea, is it not, that you have to choose one that honors proportional representation?

To confirm our impression that proportional representation was the issue of the day, we broke the transcript in Rucho down into two word ngrams. Excluding the names of the justices, the most frequent 2grams (two-word ngrams) are illustrated below, with larger words being more frequent.

ScotusOA.com: Most frequent word pairings in Rucho v. Common Cause oral argument.

“Proportional representation” was mentioned 44 times in Rucho, whereas the next most common 2grams, “North Carolina” and “majority votes”, were mentioned only 14 and 11 times, respectively. Proportional representation was also the most common 2gram in Lamone v. Benisek, where it was only mentioned 12 times.

For all the angst over proportional representation, the quandary is overstated. The answer to the proportional representation question is surely that in a representative democracy with a constitutional guarantee of equal protection, we are all entitled to have our votes aggregated according to fair and reasonable criteria. A fair process will lead to something close to proportional representation in most cases, but not inevitably: respecting natural and political geography can lead to something different without violating the Constitution.

The Constitution does not guarantee proportional representation, but the Equal Protection Clause and First Amendment both require that district boundaries are drawn by a fair process, applying appropriate criteria. Partisan advantage, i.e., rigging the system in favor of your own team, cannot be one of those criteria.

Last call for democracy

Rucho v. Common Cause and Lamone v. Benisek are the last chance the Court has before the 2020 census to do something about partisan gerrymandering. So, with the future of democracy in the balance, how is the court likely to rule?

ScotusOA.com prediction based on Supreme Court Oral Argument in Rucho v. Common Cause (March 26, 2019)

Our predictive model for Rucho v. Common Cause is not encouraging. It shows a clear partisan split, with all of the Republican-appointed justices strongly leaning towards preserving the Republican gerrymander in North Carolina and all of the Democrat-appointed justices clearly against.

ScotusOA.com prediction based on Supreme Court Oral Argument in Lamone v. Benisek (March 26, 2019)

Our model’s predictions for Lamone v. Benisek are a bit confused by the fact that the justices seemed to be running out of steam at the end of the second hour of gerrymander-palooza. An optimist might conclude that the brazen Democratic Party gerrymander in Maryland will make Chief Justice Roberts see that the dangers of inaction for the Court outweigh risks of entering the dreaded “political thicket”, but we are doubtful. As for Justice Kavanaugh, based on some of his questions and comments, there is an outside chance that he will defy partisan expectations, but this is probably just wishful thinking.

Predictions for Rucho v. Common Cause and Lamone v. Benisek

Appellants: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas

Appellees: Breyer, Ginsburg, Kagan, and Sotomayor

Most likely to switch: Kavanaugh and Roberts