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Generations of law students are taught about the majesty of Brown v. Board of Education. As the story goes, Chief Justice Warren was able to craft a narrow, unanimous opinion, to ensure the opinion would be widely accepted. And, with Brown, the Court finally overruled Plessy and the separate-but-equal doctrine. Most casebooks do not describe what happened next. Most students do not learn about Brown v. Board of Education II. Most students do not learn about the massive resistance. Most casebooks do not include  Cooper v. Aaron.

The truth is far more complicated. Chief Justice Warren was able to finagle a unanimous opinion that said very little. It didn’t overrule Plessy. It didn’t require immediate desegregation. The majority decision allowed the lower courts to supervise desegregation with “all deliberate speed.” And the standoff at Central High School in Little Rock, Arkansas demonstrated that the federal courts, standing by themselves, were feckless. Indeed, after the Court decided Cooper v. Aaron, school districts simply shut down rather than comply with court orders. (See my article, The Irrepressible Myth of Cooper v. Aaron). The Court’s assertion of judicial supremacy was met with silence. This decision, better than any other, reaffirms that the Court is the least dangerous branch.

But judicial nominees do not dare recite this actual history. During his first hearing, Judge Kavanaugh repeatedly brought up the mythicized version of Brown. Even when he was not asked about Brown. (He also repeatedly brought up the unanimous U.S. v. Nixon decision, which was a prelude to his Vance dissent.) Over and over again, he praised Chief Justice Warren for reaching a unanimous decision. Kavanaugh certainly knows the true impact of Brown. But he wouldn’t say it, because the myth signals the right virtues. Here is how Kavanaugh described Brown during a colloquy with Senator Grassley:

But Brown v. Board, as I’ve said publicly many times before, the single greatest moment in Supreme Court history by—in so many ways; the unanimity that Chief Justice Warren achieved which is a—just a great moment; the fact that it lived up to the text of the Equal Protection Clause; the—the fact that it understood the real world consequences of the segregation on the African American students who were segregated into other schools and stamped with a badge of inferiority.

(“Lived up to the text”?! Come on.  The text speaks of equal protection, not equal treatment. The opinion did not engage the text at all. And it affirmatively rejected history.)

Judge Barrett refused to buy into this mythicized account of Brown. I encourage you to watch her colloquy with Senator Leahy. It runs from 9:41 through 13:50. (All things considered, I think Leahy is still one of the most effective Democrats on the committee; he has not lost a step.).

First, Leahy reminded Barrett that Judges Gorsuch and Kavanaugh said that the President would have to follow the Supreme Court’s judgment.

SEN. LEAHY: Now, I asked you last time what Justice Barrett would do if a President or even a Senator did not follow a Supreme Court decision. You declined. You said the question may come before you. I then asked you if the Supreme Court would have the final word. You stated the Supreme Court would have the final word as far as the lower courts are concerned. That surprised me, and it concerned me. I’ll tell you why. I asked Justice Gorsuch and Justice Kavanaugh those questions. I asked them what happens, and they made it clear that a President cannot refuse to comply with a court order, and the Supreme Court’s word is the final word on that matter. Justice Gorsuch and Justice Kavanaugh said that. So I would ask you this. Do you agree a president must follow a court order, and the Supreme Court’s word is final, or is the Supreme Court’s word only final as far as the lower courts are concerned?

Barrett’s original comments were exactly right. The Constitution does not give the Court the power to order the President. Perhaps the Court could assert that power. But it is an expansion of authority. I am not even sure the Constitution gives the Supreme Court absolute authority over the lower courts, but vertical stare decisis is a debate for another day.

In response, Judge Barrett segues, and explains that Gorsuch and Kavanaugh repeated the platitude that no one is “above the law.” But she explains that this platitude is just a platitude. No man is above the law, but not all men are subject to the same laws. The Constitution grants the President certain powers, privileges, and immunities, that regular people lack.

JUDGE  BARRETT: Senator, I’m glad to have the opportunity to clarify from our conversation. First, I know that both Justices Gorsuch and Kavanaugh said that “no man is above the law,” and I agree with that.

Next, Judge Barrett goes where other nominee would not. She highlights how feckless the courts actually are:

JUDGE  BARRETT:  But I conversed with Senator Lee yesterday about Federalist 78, which says that courts have neither force nor will. In other words, we can’t do anything to enforce our own judgments. And so what I meant in the conversation with you is that as a matter of law, the supreme court may have the final word, but the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will, so it relies on the other branches to react to its judgments accordingly.

She is 100% correct. The Court issues its judgments, but relies on others to enforce them. Everyone knows this fact to be true. But I do not recall a judicial nominee acknowledging this constraint on the courts. (Please email if I missed anyone).

Senator Leahy was disturbed by this comment. He then recounts a great story where he had lunch with Hugo Black during the early 1960s.

SEN. LEAHY: I remember as a young law student having lunch, our honor society had lunch with members of the Supreme Court. I sat with Justice Hugo Black. He told me what happened with Brown v. Board of Education. The Court knew that was going to be a very, very tough case, and what did they do? They waited until they had the unanimous opinion, because they knew that the President would have to, and the Congress would have to enforce their law. So let me ask you this. Of course the supreme court has no army. They have no force, but they do have a force of law, and is a President who refuses to comply with a court order a threat to our constitutional system of checks and balances?

Leahy echoed the mythicized version of Brown. But Barrrett will not accept this mythicized account. She explains that the massive resistance illustrated the weakness of Brown. She specifically referenced Cooper v. Aaron. And she managed to namedrop Orval Faubus from memory. You cannot cram that fact. She knew it on her own.

JUDGE  BARRETT: Senator Leahy, I think the example of Brown is a perfect one in the sense that Supreme Court and Brown held that segregation violated the Equal Protection Clause. That was the law, but as you know, there was resistance to that decision, and so it wasn’t until the national guard came in and forced Governor Faubus to allow desegregation that it could happen because the Supreme Court couldn’t do so itself, and in Cooper v. [Aaron]—

Leahy interrupts again, and asks if the President can ignore a court order.

SEN. LEAHY: I understand that, but they made the order. And could a president—if a President refused to follow what they said, could that be a threat to our constitution form the government?

Judge Barrett refuses to accept the premise.

JUDGE  BARRETT: Well, as I said, the Supreme Court can’t control whether or not the President obeys.

Once again, she is right. We would hope that the President would follow a Supreme Court judgment, but the Supreme Court has no control over that matter.

Alas, Judge Barrett took one misstep at the end. She recounted the common myth that President Lincoln ignored Chief Justice Taney’s order in Ex Parte Merryman

JUDGE  BARRETT: Abraham Lincoln once disobeyed an order during the Civil War of a circuit court. So a court can pronounce the law and issue a judgment, but it lacks control over how the political branches respond to it.

Alas, she is wrong on the last part. President Lincoln never ignored an order from Chief Justice Taney in Ex Parte Merryman. Seth Barrett Tillman made this case, and I have yet to see anyone respond. Here, one Barrett can learn from another.

I am proud of Judge Barrett. She must have known this answer would create some vulnerabilities for her. but she gave it anyway. Moreover, this answer tells me a lot about how she understands the notions of judicial supremacy. She does not accept the mythical account of the all-powerful Supreme Court. This answer bodes well for the future.

One final fun fact. I recently re-watched the Dark Knight. There was a scene where the Joker, played by Heath Ledger, gets into a confrontation with members of a corporate board. One of the board members looked just like Pat Leahy. I googled it. It was Pat Leahy! He is apparently a huge Batman fan. He had cameos in Batman Forever (1995), Batman & Robin (1997), the Dark Knight (2008), the Dark Knight Rises (2012), and Batman v. Superman: Dawn of Justice (2016).

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While there is deep disagreement about the merits of Amy Coney Barrett’s nomination, commentators across the political spectrum seem united in decrying the confirmation hearings as ridiculous,  a “circus,” or even “verging on the absurd.”

Like many other observers, I thought a lot of what was said in the hearings was lame. Senators from both parties engaged in worthless grandstanding, and many of the nominee’s answers were evasive, at best. The same, I think, was often true of other recent SCOTUS nominees. And there was no shortage of dumb questions (such as this one by Sen. Lindsey Graham), and even ridiculous conspiracy-mongering.

My George Mason University colleague Adam White has a thoughtful Washington Post op ed outlining what confirmation hearings can potentially achieve. But even he likely realizes that the sordid reality is far from that ideal.

But, even if they remain largely as they are, the hearings serve useful purposes, despite their severe flaws.  Requiring the nominee to run this gauntlet deters the nomination of cronies and hacks who aren’t knowledgeable and smart enough to avoid looking like idiots on national TV, as well as those who lack basic knowledge of constitutional law issues. As White puts it, ” the process deters palpably unqualified nominations. Presidents know they cannot nominate a judge who cannot convey a basic understanding of the law in response to senators’ questions.”

The confirmation process also creates opportunities for opposing party senators (and others) to dig for possible ethical and other flaws in the nominee’s background. This too helps deter some of the worst potential nominees. And it’s part of the reason why I oppose the rushing of the process undertaken by the  GOP  this case.

While few if any of the people nominated in recent years are ones I would have chosen if it were up to me, we could easily do much worse. The confirmation process—including the hearings—is part of what helps screen out worse nominees.

I have significant disagreements with, and reservations about, all of the justices confirmed during my professional lifetime. But all are highly capable jurists, and none have turned out to be simply crude minions of whichever president or party secured their appointment. In the cases of Neil Gorsuch and Sonia Sotomayor, they have even turned out to be significantly better in some respects than I expected at the time they were nominated.

In addition, the use of outside expert witnesses for and against the nominee allows those witnesses (and the senators) to call attention to important legal issues that otherwise might not get as much air time normally. I saw a small example of this myself, when I testified at then-Judge Sonia Sotomayor’s confirmation hearing in 2009, becoming perhaps the first witness at such a hearing to focus on constitutional property rights issues. That I was the person testifying mattered very little. But it was notable that these important questions (eminent domain and asset forfeiture) got some national attention they might not otherwise have received. More recent confirmation hearings have featured insightful testimony on issues such as executive power, and the strengths and weaknesses of originalism and living constitutionalism.

Only a small minority of voters are likely to watch those parts of the hearings that feature outside witnesses (as opposed to the nominee herself). But that minority is still many more people than would pay attention to most such constitutional issues at other times.

And, while most of the questions and answers in confirmation hearings have little value, occasionally they do elicit some useful information. Just this week, Barrett’s answers to various senators’ questions provided some helpful insight on her likely approach to the Obamacare severability case currently before the Supreme Court.

Best of all, when I was a witness at the Sotomayor hearing in 2009, I got to meet former Cy Young-award winning major league pitcher David Cone (who was there to testify in support of Sotomayor, due to his involvement in the  Major League Baseball Players Association, which was the winning party in one of her best-known rulings as a district judge).  We had an interesting conversation about sabermetrics –  the quantitative analysis of baseball performance and strategy. Contrary to the stereotype of professional athletes as dumb jocks who disdain anything “nerdy,” Cone said he thought sabermetrics was extremely useful to players, and correctly predicted that the biggest future gains were likely to emerge from improvements in the analysis of defensive performance (which is less well measured than offense and pitching).

OK, perhaps my meeting with Cone isn’t really much of a reason to keep confirmation hearings! But, as described above, the hearings can serve the public interest, as well as that of witnesses. As flawed as the current system is, abolishing the hearings would probably make things worse, rather than better.

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Judge Barrett has now finished her testimony. I have listened to most, but not all of the proceedings. (I am catching up on the parts I missed by watching YouTube at double-speed). Here are my general impressions.

First, past confirmation hearings were stilted affairs. There was little personal connection between the nominee, the Senators, and the public. The nominees felt sterile, and almost robotic. Judge Barrett was the polar opposite. She exuded a naturalness that came through on camera. She didn’t need to pretend to take vigorous notes. (The questions really aren’t that hard.) I felt an instant connection to her and her family in ways I did not feel with prior nominees. To be sure, she repeated some lines over and over and over again, and refused to answer the same questions her predecessors refused to answer. But I did not get the sense that every word she said was calculated to maximize her chance of confirmation. Indeed, at a few junctures, she went off script and said things that would not not help her prospects, but she believed them to be so. For example, her answer about how she felt was so genuine. Her discussion of weeping with her daughter over George Floyd’s death was heart-breaking. She was real.

Second, I think this charisma will help her elevate to the next level. Justice Scalia was a rock star. Justice Ginsburg was a rock star. They had that special oomph. When they entered a room, it lit up. I am eager to see Justice Barrett hit the speaking circuit, and make her vision of the law accessible to the masses. She has the rare combination of personality and intellect, which will allow her to bring the Constitution to the people. But–and here is the huge but–I think Judge Barrett may have the humility and modesty to prevent that rock-star status from going to her head. Fame affected both Scalia and Ginsburg in a bad way. I hope ACB can resist the siren call.

Third, she is really, really well-versed in constitutional doctrine. She readily talked about “external constraints” on federal power. She recognized that you cannot talk about Brown v. Board of Education without also talking about Cooper v. Aaron. (More on those cases later). She refused to indulge in the myth of judicial supremacy, and referenced Ex Parte Merryman. (Here, one Barrett could learn from another Barrett). She casually explained that Section 2 of the 14th Amendment permits disefranchisement of felons but the Second Amendment has no such constraint. We have to keep in mind that ACB has been a constitutional law professor for some time. She speaks our language. I think Justices Gorsuch and Kavanaugh have a deep familiarity with these doctrines. They were raised in our legal culture. But ACB has internalized it through years of scholarship. For her, it is natural.

I honestly did not think I would praising a nominee in this fashion. I really didn’t. I hadn’t planned to even watch the proceedings. I’ve long considered the hearings to be a vapid ritual–meaningless Kabuki theater. But ACB drew me in. She made a connection that I hadn’t expected to experience. I think even the Democratic Senators saw that connection. And so will the American people.

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During its last session, the Supreme Court passed up a bunch of opportunities to revisit qualified immunity, a doctrine that shields government officials from federal civil rights claims when their alleged misconduct did not violate “clearly established” law. But critics of that doctrine, which in many cases has protected police officers from liability for outrageous abuses, still hope the justices will take up the issue at some point. While it’s not clear whether Supreme Court nominee Amy Coney Barrett is inclined to do that, her positions on qualified immunity as a judge on the U.S. Court of Appeals for the 7th Circuit suggest she takes a constrained view of the doctrine’s scope.

I have previously noted Barrett’s majority opinion in the 2019 case Rainsberger v. Benner, which demolished an Indianapolis detective’s claim that he could not be sued for lying in a probable cause affidavit that was used to charge William Rainsberger with murdering his mother. “The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer,” she noted.

In the 2019 case Torry v. Chicago, by contrast, Barrett wrote an opinion that upheld qualified immunity for Chicago police officers who stopped “three black men in a grey sedan” while investigating a drive-by shooting half a mile from a high school in 2014. Those men—Marcus Torry, William Roberts, and Latrell Goss—had nothing to do with the shooting. They just happened to be in the neighborhood four hours later because Goss’ car had broken down. The other two men picked him up and drove him to an auto parts store, passing the high school twice.

A weird wrinkle in this case is that the officers did not remember the stop. To justify it, they relied on reports about the shooting and a video of the encounter that Torry recorded with his cellphone. Witnesses to the shooting “had described three black men in a grey car,” although “the descriptions of the car’s model varied, and none was an exact match for the car that the plaintiffs were driving.” The video “depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs’ suspicious behavior in the area of the shooting as the reason that he had pulled them over.”

The video shows that King explicitly described the incident as “a Terry stop,” referring to the 1968 Supreme Court decision in Terry v. Ohio, which said the Fourth Amendment allows police to detain and question people based on “reasonable suspicion” of criminal activity. The Court also said police in those circumstances are allowed to pat people down for weapons, as the officers did in this case, if they reasonably suspect they are armed.

Barrett concluded that the officers were entitled to qualified immunity because it was not clearly established that their actions ran afoul of Terry. And although she did not officially address the question, she strongly suggested that the stop was justified by reasonable suspicion, because the plaintiffs and their car broadly resembled the witness descriptions and because the men were in the vicinity of the shooting several hours after it happened.

Barrett rejected the plaintiffs’ argument that “the defendants’ failure of memory is a concession of liability,” saying reasonable suspicion can be established based on other evidence. But since the “suspicious behavior” that King observed consisted of driving by the high school twice, her conclusion suggests that police would have been justified—or at least could have reasonably thought they were justified—in stopping any three black men in a gray vehicle who happened to be in the neighborhood around the same time. Barrett noted that reasonable suspicion is “a lower standard than probable cause,” which is itself a pretty low bar.

In two other 7th Circuit cases, Barrett voted to reject qualified immunity for correctional officers accused of constitutional violations.

Howard v. Koeller, decided in 2018, involved a Wisconsin correctional officer, Lynn Koeller, who was accused of falsely identifying a prisoner, Joshua Howard, as a snitch in retaliation for the assistance he had given fellow inmates who were pursuing legal claims of mistreatment. Barrett joined an opinion reversing a magistrate judge’s ruling that Koeller was entitled to qualified immunity. The three-judge panel said “a reasonable jury could find” that Koeller’s alleged actions amounted to unconstitutional retaliation for Howard’s legal assistance, which was protected by the First Amendment.

Notably, the opinion joined by Barrett rejected Koeller’s argument that “there are no analogous cases that would give [her] notice ‘beyond debate’ that the First Amendment prohibits [her] from reporting that an inmate provided the name of another inmate within a conduct report.” That gloss, the court noted, “is not an accurate characterization of what Howard alleges.” Rather, “Howard alleges that Koeller made deliberate misrepresentations in disciplinary reports with the intent to trigger a punitive response from other inmates.” Since “Koeller does not argue that a reasonable prison official would be unaware that this deliberate misconduct violated Howard’s constitutional rights,” the panel said, “qualified immunity does not protect her.”

Federal courts often construe qualified immunity so broadly that it bars claims when plaintiffs cannot identify relevant precedents with nearly identical facts. But in this case, the 7th Circuit said the clearly established principle that forbids retaliation for activity protected by the First Amendment was enough to keep Howard’s claim alive, even if there was no prior case in which that principle was violated in exactly the same way.

In the 2018 case Broadfield v. McGrath, a 7th Circuit panel upheld a judge’s denial of qualified immunity to Illinois jail guards accused of using excessive force against a pretrial detainee, Brian Broadfield, who “flipped out” when he was reassigned to a different housing unit. The question, according to the opinion joined by Barrett, “is not whether the law forbids the use of excessive force, but whether the law clearly established as excessive force the pressing of a non‐resisting detainee’s neck against the concrete in a manner that prevented him from breathing, carrying him hog‐tied to his cell, and severely twisting his wrist in the process.” In resolving that question, the judges said, “we do not require a case be directly on point, but existing precedent must be sufficiently analogous to place the officers on notice that their conduct was unlawful.”

By that standard, the 7th Circuit concluded, the facts alleged by Broadfield would be sufficient to establish that the force used against him was excessive. “The Supreme Court has held that a pretrial detainee can succeed on an excessive force claim by showing only that the force used against him was objectively unreasonable,” the judges noted. “Our precedent makes clear that the actions of [the correctional officers] were objectively unreasonable if Broadfield was not resisting.”

The conclusions that Barrett reached in these cases could be viewed as evidence that qualified immunity is working just fine, since it did not bar Rainsberger, Howard, or Broadfield from pursuing their claims. While Torry et al. did not fare as well, the result in that case hinged on exactly how weak a standard “reasonable suspicion” is.

Federal courts in other cases, however, have granted qualified immunity to police officers accused of shocking behavior, including grand theft, shooting children, tasing a driver who was stopped for failing to buckle his seat belt, suffocating a nonviolent man in the name of helping him, siccing a dog on a surrendering suspect, ordering a 17-year-old boy to disrobe and masturbate so his erect penis could be photographed, seriously injuring a woman who was not even a suspect because she disregarded a command to “get back here,” and wrecking a woman’s home with tear gas grenades after she gave cops permission to “get inside” so they could arrest her former boyfriend. Cases like these suggest that something has gone seriously wrong with a doctrine that was supposed to protect cops who could not have been reasonably expected to know they were doing anything unlawful.

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Tonight, President Donald Trump and former Vice President Joe Biden will host separate town hall events where each of them will answer questions from voters.

These two events are a replacement for what was supposed to be another presidential debate, but after Trump’s COVID-19 infection, the Commission on Presidential Debates decided they’d go with a virtual debate format. Trump wouldn’t agree to that change and Biden suggested they push the debate back a week before the entire debate was just scrapped.

Trump’s town hall will be on NBC and Biden’s will be on ABC, with both starting at 8 p.m. Eastern. Some very important media people are now very mad that Trump seems to have deliberately pushed for the same slot as Biden to make them compete for viewers.

Based on reporting by the Washington Post and The New York Times, the complaining seems to primarily be in media circles. Arguably, it’s actually only coming from various people in the media. From the Post:

Veteran journalist Jeff Greenfield called it “indefensible” on Twitter, where a call to boycott NBC was a trending topic.

“They rewarded Trump by giving him this time,” Greenfield said in an interview.

Katie Couric, former host of NBC’s “Today” show, said on Twitter that NBC’s decision was “bad for democracy.” NBC actress Shakina Nayfack, whose comedy series “Connecting” will be preempted Thursday by the Trump town hall, criticized her employer.

“Y’all sign my checks of late but I’m disgusted by my home network giving Trump a platform for fear mongering, bigotry and disinformation,” she wrote on Twitter.

Over the last four years, many in the media and the pundit class have argued that media outlets should stop “rewarding” Trump with coverage because of his outlandish, crude, nasty, and boorish behavior, particularly at his rallies.

But Trump, horrible or saintly, is President of the United States. It is, in fact, part of the role that the media has defined for itself in a democratic society to give platforms for elected leaders to speak, and then also hold them accountable with fact-checking and investigation. It is completely ethical and moral for NBC to host President Trump’s town hall, taking place less than a month before Election Day.

As the Post notes, town halls get much smaller numbers of viewers. The first presidential debate was seen by 73 million people, according to Nielsen ratings. Tonight’s town halls might not even crack 10 million each. That is to say, most Americans aren’t actually going to watch either of them, making the outrage even more insipid and performative. Some may ultimately just watch clips of interesting moments online. There is a bizarre sense of moral outrage at the very idea of competition for attention in the framework of democracy, as though that weren’t actually a feature of the voting.

But nobody actually has to watch these events live, right? The viewership numbers game matters primarily to the media outlets themselves, to the data nerds at the campaigns who are paid to worry about this, and to Trump, who still thinks ratings matter in 2020 even though primetime network television is years into a long slide into irrelevance.

Democracy is losing nothing by having the two of them go head to head in the same timeslot. The percentage of undecided voters is much, much smaller than it was in 2016 at this time; we’re talking in the 3 to 5 percent range in many recent polls. Biden’s town hall will most likely be watched by Biden voters and the media. Trump’s town hall will most likely be watched by Trump voters and the media. To the extent that anything of actual value comes out of either town hall, the media should cover it for the benefit of that small group of Americans who remain undecided.

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