Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more
than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he reflects on Sonia Sotomayer’s confirmation hearings. See his previous OUPblogs here.
Judge Sonia Sotomayor’s nomination to the Supreme Court is probably going to be confirmed, but only after Republicans in the Senate put up a fight to appease the base that they tried to block the inevitable. There is value, though, in airing these differences, for they explain the irreconcilably liberal and conservative conceptions of justice that exist in America.
Conservatives have every right to disagree with Judge Sotomayor’s judicial judgments, as they are entitled to contest her understanding of the constitution. Most of their opposition will focus on the New Haven “reverse-discrimination” case (Ricci v Destafano) and this infelicitous remark: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” In short, the gist of the debate will be about the ambit of the Judge’s fellow-feeling. That is why Democrats and President Obama believe in the relevant virtue of “empathy” in a judge, whereas Republicans want a judge “for all of us” rather than “just for some of us.” Let us unpack this significant difference in perspective.
Democrats in general believe that justice is about helping the dispossessed, whereas Republicans in general believe that justice is about equality before the law. Democrats believe that justice is necessarily a distributional value. They believe that the world we are born into is structurally unfair and steeped in institutional biases, and it is the duty of the privileged and powerful to come to the aid of the dispossessed. That is why Democrats project their empathy to the particular few who they feel have been disadvantaged and not to all.
Republicans believe that the state of the world we are born into is morally neutral, and it is up to each individual to make the best of one’s talents in it. Because the ambit of Republican fellow-feeling extends to all, there is no extra virtue in empathy. Hence Democrats always presume an injustice to be righted (hence they are “progressive”), Republicans valorize and want to preserve the status quo (hence they are “conservative.”) These are irreconcilable positions because they are starting premises to much of the debate between liberals and conservatives. Logic can only be deployed to adjudicate the move from premise to conclusion, it can do nothing to discriminate between the choice of argumentative premises.
The pure liberal and pure conservative conceptions of justice are probably irreconcilable. But while the goalposts are not movable, we are. Ironically, empathy - the standard for Supreme Court justices that is under debate - is exactly what the two parties need to possess. If our starting premises are different and irreconciliable, the least (and probably the most) we can do is to try to understand why the other side thinks as it does. I think liberals can start by asking conservatives that if empathy is such a vice, would they teach their children to do onto others only what they would not want others to do unto themselves? And conservatives can return the favor by asking liberal parents this: if empathy is such a virtue, then shouldn’t every wrongdoing be at least partially exonerated?
Emotional and intellectual identification with alternative conceptions of justice is neither the only route to justice nor an insurmountable roadblock to it. Liberals are right in one sense - only empathy about the other party’s understanding of empathy will help resolve the partisan stand-off in Washington - but they should also practice what they preach.
William N. Eskridge, Jr. and Darren R. Spedale are the authors of Gay Marriage: For Better or For Worse? What We’ve Learned from the Evidence. Eskridge is the John A. Garver Professor of Jurisprudence at the Yale Law School. Spedale spent two years on a Fulbright Fellowship in Denmark researching Scandinavian same-sex partnerships. He received his J.D. and M.B.A. degrees from Stanford University, and continues his work on same-sex marriage through his pro bono activities. Here, they comment on the recent decision by the California Supreme Court to uphold Prop 8.
The California Supreme Court’s decision upholding Proposition 8 will be analyzed as a referendum on gay marriage. That would be a mistake. There are much higher stakes in the case. At bottom, it posed the question, What is a Constitution for? The Justices did not address that issue explicitly, but their action spoke volumes.
Prop 8’s ratification by the voters in the 2008 election overrode the Court’s earlier decision invalidating the state’s marriage exclusion of lesbian and gay couples. Lesbian and gay couples challenged Prop 8 as an “unconstitutional constitutional amendment.” Their argument, rejected by the Court, was that Prop 8’s fundamental change in minority rights should have gone through the more deliberative process for constitutional “revisions.” California Attorney General Jerry Brown made a similar argument, that a Constitution cannot be amended to retract “inalienable” rights.
At war in the Prop 8 case were two competing visions of what a Constitution is for. Representing the supporters of Prop 8, former Judge Kenneth Starr argued that a Constitution (or at least the California one) is an expression of the values held by the citizenry. To use Aristotle’s language, the Constitution is the “soul of the city.” Modernizing Aristotle, California provides its citizens with formal opportunities to express their constitutional commitments, through popular initiatives. Once the voters had spoken, the Court itself would have been engaging in unconstitutional usurpation if it had insisted on same-sex marriage.
Attorney General Brown and Shannon Minter (representing the challengers) argued that a Constitution demands more from the democratic process. Inspired by John Locke, their constitutional assumption is that the constitution is a social contract that guarantees basic rights to everyone. The Declaration of Independence called them “inalienable rights,” which means that even the Constitution cannot take them away without risking dissolution of the social contract. Because the Court itself had in 2008 held that marriage was a fundamental, inalienable right for lesbian and gay couples, Brown and Minter maintained that Proposition 8 was a constitutional betrayal.
A superficial reading of the Court’s opinion suggests that Starr prevailed. The Court upheld Prop 8, consistent with Starr’s democratic updating of Aristotle. But the Court rejected Starr’s argument that Prop 8 nullified the estimated 18,000 same-sex marriages performed between June 15 and November 8, 2008. The effect of the Court’s interpretation is to recognize those marriages, consistent with Brown and Minter’s stance in the litigation.
What is one to make of this Solomonic resolution? It may have been politically motivated, splitting the baby so that neither side would feel disrespected, on an issue that evenly divides the citizenry. It may been motivated purely by rule of law considerations. The Court would have had to stretch its precedents to strike down Prop 8, but the well-established canon against retroactive application of new amendments provided a legally hard-to-question rationale for narrowly interpreting Prop 8.
In our view, the Court was operating, at least in part, under a third understanding of what a Constitution is for. Constitutions establish processes for deliberation about important policies and values we should commit ourselves to. A Deliberative Constitution keeps the channels of political discussion open, insists that representative bodies be accountable to the people, and from time to time nudges the political process.
This is probably what the Court was up to. On the one hand, the Justices were persuaded that citizens were not settled in the gay marriage debate. Even as it allowed Prop 8, the Court reminded voters that a future initiative could overturn its rule. The Court was channeling both supporters and opponents of gay marriage back to the persuasive process; judges would not decide the issue for the people.
On the other hand, the Justices gave a nudge to that deliberation by validating the existing gay marriages. This provided an opportunity for gay marriage supporters to falsify stereotypes of gay people as anti-family. (The biggest anti-gay trope, and one exploited during the Prop 8 campaign, is that rights for gay people will corrupt children.) These lesbian and gay married families might also put to the test traditionalist arguments that gay marriage is bad for the community.
Gay marriage will still come to California, through a future initiative rather than a judicial decision. As we argued in our recent book, the new wave of marriage recognition has been coming in state legislatures (Vermont and Maine, with others to come).
Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Zelinsky discusses the U.S. Supreme Court’s recent decision in MetLife v. Glenn. That decision, he concludes, unintentionally reinforces the trend from defined benefit to defined contribution plans. Under MetLife v. Glenn, employers which sponsor and administer defined benefit pensions operate under a conflict of interest which subjects their administrative decisions to greater legal scrutiny.
Wanda Glenn was an employee of Sears, Roebuck & Company (“Sears”) and, as such, was covered by the Sears long-term disability insurance plan. Metropolitan Life Insurance Company (“MetLife”) both administered and insured the Sears plan. Ms. Glenn applied for continuing disability benefits. MetLife, as plan administrator, denied Ms. Glenn’s application for benefits which, if granted, MetLife, as the plan’s insurer, would itself have paid.
Ms. Glenn sued. Her lawsuit made its way to the U.S. Supreme Court which held in MetLife v. Glenn that, in light of the discretion confided to MetLife by the Sears plan, MetLife’s denial of Ms. Glenn’s disability benefit was to be reviewed judicially under a deferential “abuse of discretion” standard. However, the Court further stated, MetLife, as plan administrator, operated under a conflict of interest since any benefits MetLife granted as such administrator MetLife itself also paid as the plan’s insurer. Hence, in assessing whether MetLife, as plan administrator, abused its discretion, the courts must, among other factors, “take account of the conflict” MetLife faced as a plan administrator which was also the plan insurer. Such conflict of interest might “act as a tie-breaker when the other factors are closely balanced.”
MetLife v. Glenn has engendered extensive discussion. However, so far, one aspect of this decision has gone 
unremarked: MetLife v. Glenn is one more unintended push from our legal system, nudging employers away from traditional defined benefit plans towards 401(k) plans and other similar defined contribution retirement arrangements. After MetLife v. Glenn, the administrative decisions of employers sponsoring and administering defined benefit pensions will typically be subject to greater legal scrutiny than will be the administrative decisions of employers sponsoring and administering most 401(k) and similar individual account arrangements. This greater scrutiny incents employers to shift from their defined benefit pensions to defined contribution plans.
Embedded in the traditional defined benefit pension administered by the sponsoring employer is the conflict of interest stemming from the employer’s obligation, as plan sponsor, to pay the costs of the plan — just as MetLife, as insurer, paid from its premium revenues the costs of the Sears disability plan. In the defined benefit setting, greater plan distributions to participants and beneficiaries require greater employer contributions to the plan. Consequently, any distribution denial by the employer sponsoring a traditional defined benefit pension implicates the conflict of interest in which MetLife found itself: If the employer as plan administrator denies plan benefits, it thereby reduces its costs as plan sponsor.
In contrast, an employer sponsoring and administering a typical defined contribution plan usually has no such conflict of interest since the individual accounts of such a plan belong to the participants. If, for example, an employer, as administrator of a 401(k) plan, denies a participant a hardship distribution from the plan, that denial does not decrease the employer’s costs; it merely delays the distribution to the participant of his 401(k) account until later. Since there is no conflict of interest in that setting, under MetLife v. Glenn, the employer’s decision will receive greater deference if challenged in the courts.
An important factor causing the decline of traditional defined benefit pensions and the concomitant rise of individual account arrangements like 401(k) plans has been the heavy regulatory cost imposed on defined benefit plans. MetLife v. Glenn represents the latest such cost, an unintentional cost, perhaps a small cost, but a cost nonetheless. Employers who sponsor and administer defined benefit plans are now on notice that, because of their conflicts of interest, their administrative decisions will generally receive less deference from the courts than will the comparable decisions of their competitors sponsoring and administering 401(k) plans who do not operate under such conflicts of interest. By itself, this will rarely cause an employer to terminate its defined benefit pension and shift to an individual account arrangement. But, to paraphrase the Supreme Court, this is the kind of cost which can act as a tie-breaker when the decision is close.
Consequently, Metlife v. Glenn, by reducing the deference ultimately granted to employers which sponsor and maintain defined benefit pensions, represents one more small, but unintended, push away from such pensions.
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