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The Supreme Court 2017 Term Foreword: Rights As Trumps?

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The Supreme Court 2017 Term Foreword: Rights As Trumps? VOLUME 132 NOVEMBER 2018 NUMBER 1 © 2018 by The Harvard Law Review Association THE SUPREME COURT 2017 TERM FOREWORD: RIGHTS AS TRUMPS? Jamal Greene CONTENTS I. INTRODUCTION ...................................................................................................................... 30 II. OUR ABSOLUTISM .................................................................................................................. 38 A. Taking Rights Reasonably ................................................................................................. 38 1. Antidiscrimination Law ............................................................................................... 43 2. Social and Economic Rights ........................................................................................ 48 3. Abortion .......................................................................................................................... 50 4. School Integration ......................................................................................................... 51 5. Second Amendment ....................................................................................................... 52 B. Proportionality ................................................................................................................... 56 C. A Broader View .................................................................................................................. 60 1. Rules and Standards ..................................................................................................... 60 2. Universalism and Particularism .................................................................................. 61 3. Interpretation and Empiricism .................................................................................... 62 4. Authority and Justification .......................................................................................... 64 III. CONSEQUENCES ..................................................................................................................... 65 A. Dworkin’s Critique ............................................................................................................. 66 B. Trumps as Distortions ........................................................................................................ 70 1. Too Little Justice ........................................................................................................... 70 2. Judicial Subterfuge ........................................................................................................ 74 C. Political Constitutionalism ............................................................................................... 77 D. Relational Injury ............................................................................................................... 79 E. The Costs of Proportionality ............................................................................................. 85 1. Proportionality as Construction .................................................................................. 85 2. Rights and Interests ...................................................................................................... 87 3. The Perils of Transparency ........................................................................................... 89 4. Lower Court Guidance .................................................................................................. 93 28 HARVARD LAW REVIEW 29 IV. THE CONTINGENT ORIGINS OF RIGHTS AS TRUMPS .................................................. 96 A. Griswold, Lochner, and the Right to Privacy ................................................................ 98 B. Rights at the Founding ................................................................................................... 109 1. Rights as Representation ............................................................................................ 110 2. Rights as Federalism ................................................................................................... 113 C. On Facts and Remedies ................................................................................................... 115 1. Facts .............................................................................................................................. 116 2. Remedies ....................................................................................................................... 117 V. F ORWARD ............................................................................................................................... 119 A. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission ......................... 120 B. Carpenter v. United States ............................................................................................. 124 C. The Gerrymandering Cases ............................................................................................. 127 VI. CONCLUSION .......................................................................................................................... 131 THE SUPREME COURT 2017 TERM FOREWORD: RIGHTS AS TRUMPS? Jamal Greene∗ I. INTRODUCTION ights are more than mere interests, but they are not absolute. And R so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the excep- tional circumstances in which they may be limited. Constitutional ad- judication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the govern- ment’s justification for its action. In one frame, the paradigm cases of rights infringement arise as the consequences of governing poorly. In the other, the paradigm cases arise as the costs of governing well. The first frame describes the approach of the U.S. Supreme Court over roughly the last half century. The second frame describes the ap- proach of the rest of the developed world over the same period. Neither frame is perfect; many of their flaws track the inherent limits of judicial review in a democracy. The two frames might indeed produce similar results in particular cases. But across time and space, the choice of frame has profound consequences for constitutional law and for its sub- jects. In particular, the first frame, the one that dominates U.S. courts, has special pathologies that ill prepare its practitioners to referee the paradigmatic conflicts of a modern, pluralistic political order. To wit, two men, Charlie Craig and Dave Mullins, wanted a cake for their wedding.1 They visited a bakery, Masterpiece Cakeshop, in ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Dwight Professor of Law, Columbia Law School. For helpful comments and criticism, I thank Jessie Allen, Akhil Reed Amar, Nicholas Bagley, Randy Barnett, Seyla Benhabib, Evan Bernick, Deborah Brake, Samuel Issacharoff, Vicki Jackson, Jeremy Kessler, Suzanne Kim, Gillian Metzger, Henry Monaghan, David Pozen, Jedediah Purdy, Jack Rakove, Russell Robinson, Fred Schauer, Sarah Seo, Reva Siegel, Yvonne Tew, students at the Georgetown Advanced Constitutional Law symposium, participants at workshops at Columbia Law School and the University of Pittsburgh School of Law, and the editors of the Harvard Law Review. I owe special thanks to Katherine Yon Ebright, Michael Lemanski, Zach Piaker, Swara Saraiya, and Sophie Schuit for indispensable re- search assistance. 1 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1724 (2018). 30 2018] THE SUPREME COURT — FOREWORD 31 Lakewood, Colorado, where they were told by the owner and chef, Jack Phillips, that his Christian religious beliefs prevented him from baking custom cakes for same-sex weddings.2 Discrimination on the basis of sexual orientation violates Colorado’s public accommodation law,3 and Craig and Mullins sued to require that the law be enforced against Phillips.4 Phillips answered that, for him, designing cakes was a form of artistic expression, and so requiring him to do so for a same-sex wed- ding violated his constitutional rights not just to freedom of religion but to freedom of speech as well.5 In the artistic spirit, consider two portraits of the dispute that became Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.6 Within one frame we observe a dispute among friends, citizens who share a core set of values but who are quibbling — vigorously, to be sure — over how those values apply to a particular set of facts. That core includes the view that art is a protected form of expression that the state may not compel an artist to produce against his will.7 What’s more, conditioning Phillips’s ability to operate a bakery on the state’s controlling the content of his art would count, prima facie, as a forbid- den compulsion.8 Both sides likewise agree that a free speech defense would not permit Phillips to refuse to sell cakes to Craig and Mullins simply because they are gay men.9 Phillips’s argument was not grounded in a generalized right of association or autonomy that would allow him to engage consensually with whomever he chooses and on whatever terms. His was a subtler claim, a pinpoint in the canvas, and the couple’s rebuttal was equally
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