Posts Tagged ‘politics’
Bush v. Gore 25 Years Later: I Still Can’t Get Over It
IIt has been twenty-five years since the Supreme Court handed down Bush v. Gore. What follows are comments that I wrote on the fifteenth anniversary of that decision. My views of this decision have, if anything, become even more negative since that time, in light of the Supreme Court’s controversial use of its “shadow docket” to effectively enable Trump administration policies to be implemented despite serious questions raised by federal district courts about their legality.
It is one of the worst Supreme Court decisions in history.
No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.
I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.
I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.
And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.
All four of these decisions were morally repugnant, and several were even evil.
No, I’m referring to the infamous and more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.
This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.
Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.
Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”
But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled [which it was in Dobbs v. Jackson Woman’s Health in 2022], regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.
He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”
He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due processright to same-sex marriage.
I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.
But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.
I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.
I still cannot get over it.
The Medicaid Act, the Spending Power and Section 1983 “Laws” Actions: Medina v. Planned Parenthood South Atlantic
The Talevski Background
In Health & Hospital Corp. of Marian County v. Talevski, 599 U.S. 166 (2023), the Supreme Court held that the Federal Nursing Home Amendments Act of 1978’s transfer and medication rules created private rights enforceable under § 1983. The Court, in an opinion by Justice Jackson, rejected the broad argument that Spending Clause legislation should never give rise to such enforceable rights. “‘Laws’ means ‘laws’, and nothing in [defendants’] appeal to Reconstruction-era contract law shows otherwise.” However, Justice Gorsuch concurred observing that the defendants failed to “develop fully” any arguments revolving around whether federal statutory rights in spending power legislation were “secured consistent with the Constitution’s anti-commandeering principle.” Justice Barrett, joined by Chief Justice Roberts, also concurred, emphasizing that an “actual clash–between one private judicial remedy against another, more expansive remedy–is not required to find that a statute forecloses recourse to § 1983.”
Justice Thomas dissented at great length. He argued that there was a difference in kind between federal legislation enacted under Congress’s enumerated powers and those enacted under the so-called “spending power.” The latter were not “laws” within the meaning of §1983’s language. They were contractual in nature and could not “secure rights by law.” Furthermore, to the extent that such federal statutes might by enforced through §1983, they ran “headlong into the anticommandeering doctrine and long-recognized limitations on the federal spending power.”
Justice Alito, joined by Justice Thomas, also dissented. He argued that while the FNHRA created individual rights, Congress had not indicated its intent to allow §1983 to be used to enforce the relevant provisions of the Act. To the contrary: “Allowing §1983 suits will upend [the Act’s] careful balance” of federal and state enforcement that “channels disputes through that regime.”
As I concluded in an earlier post on Talevski, “§1983 claims based on violations of federal statutes enacted under the spending power dodged a bullet: these kinds of claims might have been eliminated entirely. Still, even though they are still viable, it is fair to say that going forward such claims will continue to be viewed from a posture of skepticism by a fair number of the justices because of concerns with the scope of Congressional power, anti-commandeering and federalism.” See https://nahmodlaw.com/2023/06/27/health-hospital-corp-v-talevski-an-important-section-1983-laws-decision-on-the-spending-power-with-10th-amendment-overtones/
The Medina v. Planned Parenthood South Atlantic Decision
This assessment has now been borne out by a 2025 decision involving the Medicaid Act, enacted under the Spending Clause, and § 1983 “laws” actions. The Supreme Court, in Medina v. Planned Parenthood South Atlantic, 146 S. Ct. — (2025), rev’g, 95 F.4th 152 (4th Cir. 2024), answered in the negative the following Question Presented: “Whether the Medicaid Act’s any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider.” In Medina, the plaintiff who wanted to shift all of her gynecological health care to Planned Parenthood attempted to use § 1983 to challenge South Carolina’s exclusion of Planned Parenthood from its Medicaid program because Planned Parenthood provided abortion services Justice Gorsuch wrote the Court’s opinion, in which he discussed at length why “spending-power statutes like Medicaid are especially unlikely to [confer an enforceable right.]”
Along these lines, he pointed out that the Court’s precedents made clear that a federal statute claimed to support a § 1983 cause of action must clearly and unambiguously do so. However, Medicaid’s any-qualified-provider provision, contained in 42 U.S.C. § 1396a(a)(23)(A), did not clearly and unambiguously create such a right, unlike the Federal Nursing Home Reform Act provisions in Talevski. So-called legislative history was not determinative. And the policy argument that § 1983 actions were an effective way to enforce the any-qualified provider provision was not persuasive in light of the supervisory role of the federal government and available state administrative processes. Consequently, the plaintiff could not use § 1983 to challenge the exclusion of Planned Parenthood from the state’s Medicaid program.
Justice Thomas concurred, arguing broadly that the Court should reexamine its § 1983 jurisprudence “which bears little resemblance to the statute as originally understood.” In his view, the Court should revisit the question of what constitutes a “right” under § 1983, especially given the expansion of constitutional rights since 1871 when § 1983 was enacted. More specifically, he maintained, as he had in his dissent in Talevski, that federal statutes enacted under the spending power cannot “secure” rights under § 1983.
Justice Jackson (the author of Talevski), joined by Justices Sotomayor and Kagan, dissented. She asserted generally, and partly in response to Justice Thomas’s concurrence, that the purposes of § 1983, “one of the country’s great civil-rights laws,” were, and had to be, very ambitious in light of the Civil War and Reconstruction because terrorist violence was an existential threat to the United States. As to the precise issue before the Court, she argued that, contrary to the majority, Talevski governed, and that, under the Court’s “laws” precedents generally, the Medicaid Act did indeed create a right that the plaintiff could enforce through § 1983. “Medicaid’s free-choice-of-provider provision easily satisfies the unambiguous-conferral test.” There was ample rights-conferral language in the Act as well as legislative history to support this interpretation.
Comment:
The Court’s decision in Medina was not surprising for two reasons. One is the already noted posture of skepticism of at least three of the Justices toward using § 1983 to enforce purported rights under federal statutes enacted pursuant to the spending power. The second is that the case involved South Carolina’s decision to withdraw funding for Planned Parenthood, a provider of abortion services, even for its general gynecological services. It should not be surprising that, because Roe v. Wade has been overruled, a majority of the Justices view Planned Parenthood with jaundiced eyes and are not disposed to prevent states from refusing to fund it in its entirety, even though funding for abortion itself is not directly implicated.
When Public Officials Post or Block on Social Media: The Supreme Court Weighs In on State Action
A variation of what I call the converse of the typical state action question arises when public officials post or block on social media. The Supreme Court recently addressed this issue in two cases in which it granted certiorari and vacated and remanded.
In one, Lindke v. Freed, 143 S. Ct. 1780 (2023), granting certiorari in Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024), the Question Presented was: “Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”
In the other, O’Connor-Ratcliff v. Garnier, 143 S. Ct. 1779 (2023), granting certiorari in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 405 Ed. Law Rep. 715 (9th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024)(per curiam, the Question Presented was: “Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.”
In Lindke, the Sixth Circuit ruled that a city manager who used his Facebook page for administrative directives and for explaining his Covid-19 policies, but who also posted as a father and husband, was not a state actor when he deleted the plaintiff’s critical comments from his page and “blocked” him as well, thereby keeping the plaintiff from commenting on the page and its posts. The Sixth Circuit found that the city manager maintained the Facebook page in his personal capacity: under its “state-official” test, which it said was a version of the Supreme Court’s nexus test, the Facebook page did not derive from defendant’s duties as city manager—it did not belong to the office of city manager. Further, it did not depend on his state authority. The Sixth Circuit observed that its approach was different from that of some other circuits which focused on a page’s appearance or purpose: “we focus on the actor’s official duties and use of government resources or state employees.”
The Supreme Court, in a unanimous opinion by Justice Barrett, vacated in Lindke and remanded. Observing that in cases like this it is often difficult to tell whether speech is official or private, it emphasized that the plaintiff must show that the city manager (1) had actual authority to speak for the city and (2) purported to exercise that authority in the relevant posts. It is the source of the power that controls, and this must be ascertained on a case-by-case basis. In addition, the Court cautioned that a public official might post job-related information for personal reasons. “[I]t is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” After noting the difference between deleting and blocking, and warning about the dangers of “mixed use” social media accounts, the Court concluded: “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
In O’Connor-Ratcliff, members of a school district’s board of trustees, who used social media to communicate with constituents and parents about public issues and board matters, blocked the plaintiff parents entirely from defendants’ social media pages because of the plaintiffs’ repeated criticisms of the trustees and the board. The Ninth Circuit ruled that they acted under color of law. It declared: “[A] state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.” There was a clear nexus between the trustees’ use of social media and their official positions. The Ninth Circuit observed that it was following the analysis of the Second, Fourth and Eighth Circuits in emphasizing the defendants’ use of social media as “an organ of official business.”
Again, the Supreme Court vacated and remanded. In a per curiam opinion, it explained that on remand the Ninth Circuit should apply the Court’s approach in Lindke: (1) did the trustees have actual authority to speak for the school district and (2) did they purport to exercise that authority in their posts.
Note that the Court in Lindke and O-Connor-Ratcliff did not itself apply its two-part approach to the cases before it, as it could (and perhaps should) have done to provide guidance to the circuits, but instead remanded. Note also that the Court indicated that the inquiry into actual authority should be based not only on formal statutory law but also on “custom” and “usage” per the color of law language of § 1983.
On state action, the converse of the typical state action question and color of law generally, see Ch. 2 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Know Your Constitution (3): Myths About the Supreme Court
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
I recently blogged regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.
This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.
The First Myth. The Supreme Court’s primary function is to do justice.
Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.
Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.
Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.
What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century. It thereby perpetuated Jim Crow laws until Brown v. Board of Education was handed down in 1954.
On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century.
The Second Myth. The Supreme Court is a political body like Congress and the President.
Reality. The Supreme Court is the only branch of the national government that is not directly politically accountable to the electorate. The justices have lifetime tenure once appointed in order to insulate them from political pressure. To demonstrate how important judicial independence is, consider that the Court’s rulings are typically complied with on a voluntary basis by those affected. Al Gore’s concession to George Bush after the Court’s ruling in Bush v. Gore is an excellent example of such voluntary compliance.
On the other hand, the justices are human beings who cannot help but be influenced by their upbringing and by contemporary political and social values. Consider, for example, the infamous Dred Scott and Plessy v. Ferguson decisions, where the justices could not distance themselves from their support for white supremacy.
Still, because the justices are not directly answerable to the electorate, it is an important part of their judicial function to avoid applying their personal values, to the extent possible, when they interpret the constitution.
The Third Myth. The Supreme Court simply makes up most of its constitutional decisions.
Reality. It’s much more complicated than that. Some constitutional provisions are very easy to apply because they are very specific. For example, the President must be a natural born citizen, over thirty-five years old and a resident of the United States for fourteen years.
Similarly, it is clear from the text of the Constitution that it is Congress that has legislative powers, it is the President who has executive powers and it is the Supreme Court that has judicial powers. There are many such examples.
In contrast, other provisions of the Constitution, because they are less clear inherently, necessarily require a fair amount of interpretation. What do freedom of speech, freedom of the press, freedom of religion, mean anyway? Does the Fourth Amendment prohibiting unreasonable searches and seizures apply to electronic surveillance, to the internet? The text of the Constitution and the history of these provisions often provide no clear answers; obviously the Framers never thought of media such as radio and television, or about electronic surveillance and the internet.
So what does the Court do? Until recently, the short answer was that the Court typically proceeded cautiously and developed the meaning of these and similar textual provisions on a case by case basis. Typically the justices would focus on the values implicit in the constitutional provision they were interpreting. They then asked whether and how to apply those values in the new situation confronting them.
However, a majority of the current Supreme Court has now adopted an approach called “originalism” that focuses on the history and tradition of the particular constitutional provision of concern. The Court has applied this approach (which really has varying meanings) to the Establishment Clause, the Second Amendment and the Due Process Clause (in overruling Roe v. Wade).
Both the earlier approach and the current “originalism” approach constitute what some call judicial restraint, and what others call judicial activism.
It must be acknowledged that both approaches give the justices as individuals, and the Supreme Court as an institution, a good deal of interpretive latitude on difficult constitutional interpretation questions. And it must also be admitted that this often generates a great deal of controversy, often of a politically partisan nature.
However, controversy is one of the inevitable costs of being a citizen in a democracy with a Supreme Court that interprets the Constitution. And it is a cost I’m willing to acknowledge and bear, even when I believe firmly that the Court has gotten it wrong.
Know Your Constitution (1): The Structure of Government
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
Constitutional Education for Citizens
United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.
However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.
What I would like to do in this and in succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.
This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.
What is Separation of Powers?
The first three articles of the Constitution create and set out the powers of the three branches of government.
First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.
Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.
Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts.
What Are the Purposes of Separation of Powers?
These three articles thus allocate governmental powers to three branches in order to promote efficiency. But this separation of powers serves another very important purpose: to make it impossible for narrow special interests (called “factions”) to capture the national government. The Framers were concerned, one might say obsessed, with preventing tyranny at the national level.
The political theory was that even if one branch of the national government ever became the captive of a faction, the other branches could step in and stop it. It is for that reason that separation of powers is not absolute: the Framers also provided for checks and balances among the branches. For example, legislation cannot become law without the President’s approval (unless Congress overrides a Presidential veto). Also, legislation must be enforced by the President. Supreme Court justices, and federal judges generally, are nominated by the President and must be approved by the Senate.
When Congress or the President violates separation of powers, it is the Supreme Court that steps in (through litigation) to strike down the unconstitutional conduct. For example, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)(the famous Steel Seizure Case), the Court struck down the attempt by President Truman to seize the country’s steel mills: this was an unconstitutional exercise by the President of legislative power.
What is Federalism?
The Constitution also sets out the relations between the national government and the States. There are limits to what the federal government can do, and there are limits to what the States can do. In addition, the Tenth Amendment provides that powers not delegated to the national government are reserved to the states or the people.
In the last thirty or so years especially, the Supreme Court has enforced federalism rather aggressively and has, somewhat controversially, several times struck down federal legislation enacted under the Commerce power (one of the enumerated powers) because it encroaches on the States. A good example is United States v. Lopez, 514 U.S. 549 (1995), which held violative of the Commerce Clause the Gun-Free School Zones Act of 1990.
What Are the Purposes of Federalism?
Federalism is intended to promote efficiency, democracy and experimentation. But another very important function, like that of separation of powers, is the prevention of tyranny. Under this theory, States can serve as buffers between individual citizens and a possibly tyrannical national government.
A Controversial Issue
Here is one very important, and controversial, question about federalism: to what extent has it been modified by the Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments?
These Amendments gave Congress the power to enforce their provisions against the States and are based on the assumption that it is now the national government that is charged with protecting individual citizens from the tyranny of the States.
The question is whether this acknowledged change in federalism extends beyond the protections of Thirteenth, Fourteenth and Fifteenth Amendment rights to include the powers of Congress under the Commerce Clause, as well as the taxing and spending powers.
It is fair to say that a majority of the current Supreme Court believes the answer to this question is an emphatic NO. In other words, the Framers’ view of the importance of federalism in these other areas–commerce, taxing and spending–continues to govern despite the Thirteenth, Fourteenth and Fifteenth Amendments.
Nahmod Law 