Betsy DeVos kept her promise. As the education secretary vowed in September 2017, the department’s Office for Civil Rights last week formally proposed new regulations designed to create a more just process when campus tribunals adjudicate sexual-misconduct allegations. The proposed rules closely track recent court rulings favoring accused students.

In 2017 interim guidance, Mrs. DeVos had invited schools to develop fairer procedures under the law known as Title IX. But nearly all retained the Obama administration’s approach, which was heavily tilted against accused students. (The University of Kentucky was the most prominent exception.)

The most significant proposed change involves cross-examination, a fundamental element of due process. The Obama administration had strongly discouraged schools from allowing cross-examination of an accuser. “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” Anurima Bhargava, an Obama Justice Department official, told the Journal this August. That’s a presumption of guilt.

State and federal courts alike have held that the resulting processes are unconstitutional. In a case from the University of Michigan this September, the federal Sixth Circuit Court of Appeals ruled in favor of an accused student. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Judge Amul Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.” The Supreme Court, quoting legal scholar John Wigmore, has repeatedly described cross-examination as “greatest legal engine ever invented for the discovery of truth.”

The proposed regulations would apply that principle nationally. They would require live hearings in all Title IX cases, with lawyers or other advocates for the accused conducting cross-examinations of witnesses. Cross-examination can’t be effective unless accused students as well as accusers have access to all evidence—routinely denied to accused students under current practice.

The proposed regulations would require that accuser and accused alike have access to all evidence gathered in the investigation. If witnesses chose not to participate in the hearing, their statements would be discounted. The new rules would also dismantle the transparently unfair “single investigator” model, in which many colleges have allowed a single person, usually hired by the Title IX office, to be investigator, judge and jury.

One critical provision would mandate that schools turn over the materials they use to train adjudicators to either party on request. Washington’s Obama-era guidance required that Title IX adjudicators receive training in “the effects of trauma, including neurobiological change.” In practice, that is prejudicial: Many schools treat virtually any behavior by the accuser—including actions that real courts properly interpret as evidence of deception—as consistent with truthfulness. The University of Mississippi claims that “lies” by an accuser shouldn’t necessarily cast doubt on her credibility, arguing that lying simply is one of the “different responses” a victim can have to a sexual assault.

The proposed rules include provisions favorable to accusers as well. They stress that institutions must provide accommodations to students who allege sexual assault on campus or within school programs. The Obama administration notoriously mandated that schools apply the low “preponderance of evidence” standard in adjudicating claims. The new rules will permit them to continue doing so, and most almost certainly will. The regulations would impose limits on questioning about an accuser’s sexual history, in line with rape shield laws. They would retain an Obama-era requirement that schools allow accusers to appeal not-guilty findings.

In the past two years, groups representing sexual-assault accusers have insisted that they only want a fair process, not one that railroads accused students. Their response to the regulations proposed will provide a test of their sincerity.

The procedures that result from these new rules won’t be entirely fair to accused students. Unlike courtroom advocates, colleges lack subpoena power. And universities will still have strong incentives to favor accusers, if only to pre-empt media criticism or appease campus activist groups. But as the proposed regulations note, when a university “establishes an equitable process with due process protections and implements it consistently, its findings will be viewed with more confidence by the parties and the public.”

Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”

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Misinformation functions in a similar fashion, gaining traction as it’s repeated by increasingly high-profile individuals who venture ever further from the source material. In this manner, distortion about the facts of sexual assault has affected the training of judges, prosecutors, and other law enforcement officials. It is how misleading assertions become embedded in criminal and military law.

This is a story of how a theory without merit, derived from highly questionable statistics, imperils the most basic tenets of due process and risks turning every unproved accusation into a verdict of guilt.

The example discussed here began with a small study by an associate professor at a commuter college in Massachusetts. The 12-page paper describing the study barely created a stir when it was published in 2002. Within a few years, however, the paper’s principal author, David Lisak, a University of Massachusetts-Boston psychologist, began making dramatic statements that extrapolated far beyond the study’s conclusions. He created, virtually out of whole cloth, a theory that “undetected” serial rapists are responsible for 90 percent of assaults on college campuses, that they premeditate and plan their attacks, and that they are likely to have committed multiple acts of violence.

When speaking on campuses, to the military, and to law enforcement, Lisak started showing a highly disturbing video that he claimed was based on the transcript of an actual interview with a campus rapist to whom Lisak gave the name “Frank.” The authenticity of the video has been seriously questioned, raising grave doubts about Lisak’s contention that it illustrates the typical campus perpetrator—in his view, an unrepentant sociopath who cannot be reached or educated.

A news search for mentions of Lisak finds only a single one prior to 2009, in which he revealingly opined in an urban policy magazine about the Duke lacrosse rape hoax. He was interviewed again by CBS News in November 2009 about non-stranger rapes. He increasingly became the draw at conferences on sexual assault and his calendar filled with campus presentations. The media began to fawn over him, whether due to the drama of the notion of campuses being stalked by serial rapists or to the failure of campus administrators, blinded by the appeal of an identifiable villain, to point out the disconnect between Lisak’s portrait and their own observations. (A sociopath responsible for the majority of assaults can be removed from campus. The reality of college drinking and the still-developingadolescent brain, and the relationship of both to behavior fueled by poor judgment and peer pressure, provide no such easy fix.) By the end of 2010, Lisak’s status was on the rise. Within a few years, his was arguably the most high-profile name on the topic of sexual assault.

Lisak’s serial-rapist theory was reflected in the 2011 letter in which the Department of Education ordered universities to adopt specified, guilt-presuming disciplinary procedures for alleged sexual assaults and, in the process, gave credence to the probability of repeat offenders. Lisak’s theory also found its way into a January 2017 report by the White House Task Force to Protect Students From Sexual Assault, which simultaneously criticized a more recent, nationally representative study that had been subject to far more rigorous statistical analysis. Lisak was quoted so often as to make him a central figure in the pseudo-documentary “The Hunting Ground.” As his celebrity grew, the gap between documented facts and his status as an expert became almost inconsequential.

Criticism did eventually catch up to David Lisak. His serial predator model of campus rape has been compellingly debunked by scholarly researchers and well-regarded publications, including investigative articles and a book. His claims regarding the psychology of campus perpetrators were revealed to be based on nonexistent interviews. A key component of his presentations, an “unedited transcript” of an interview with a college rapist presented as timely and typical was revealed to be not only highly edited but based on an interview from three decades ago with a subject who was clearly an atypical outlier — as documented by Lisak’s own publications.

A 2008 paper, in which he linked “undetected serial rapists” with a propensity to commit serial and “crossover” acts of violence such as interpersonal attacks unrelated to sex, was shown to have provided no basis for such a generalization. His assertions, allegedly supported by a study he co-authored in 2010, that false accusations of sexual assault are exceedingly rare, have been shown to violate basic math by counting as true cases that didn’t qualify as sexual assault, had insufficient evidence to make a determination, or were referred for prosecution but about which the outcome was unknown.

As for Lisak’s vague statements about having interviewed “hundreds” of serial rapists (occasionally styled as “thousands” when others talk about him), in truth no evidence exists that Lisak has interviewed any “undetected rapists,” serial or otherwise, since his dissertation research 30 years ago.

His claimed years of research turned out to be a handful of actual research publications, reviews full of editorializing about others’ research, rehashing of the dissertation he completed in 1989, and a website that deceptively merges that dissertation’s 1980s-era research on 12 college students with unrelated data from the 2002 paper on repeat offenders.

Yet all of these devastating exposés have barely dented Lisak’s popularity. In spite of his own warning in that 2002 paper that the “non-random nature of the sampling procedures” precludes interpreting the data “as estimates of the prevalence of sexual and other acts of violence,” he has built a career doing exactly that. His original research—the ostensible basis of his expertise—fits on a single page of his curriculum vitae. In spite of this limited output, he continues to be a featured speaker and forensic witness based in large part on the very distortions that have been so convincingly exposed.

Were the damage wrought by David Lisak’s popularity confined to his college-circuit road show, there might be some hope that his toxic influence would be worn down by the critical thinking ostensibly prized by the academy.

Instead, that has not happened. The list of invited presentations, workshops, and media appearances in which he has hawked his unsubstantiated theories runs an additional 40 pages on his curriculum vitae. Among the most worrisome aspects of Lisak’s presentations and workshops is how they appear to be gaining influence among professionals close to the investigation and adjudication of sexual assault. His debunked serial predator theory and wildly extrapolated statistics on the false-accusation rate form the core of the training materials he has developed—and in some cases sold to law enforcement, prosecutors, judges, and the military.

Whenever Lisak presents his serial predator theory—invariably accompanied by his claims about the low rate of false accusations of rape–his toxic influence spreads. A small sampling shows its range:

• S. Air Force. Special training for the Office of Special Investigations: The Behavior and Characteristics of Non-stranger Rapists: Implications for Investigation and Prosecution.
  Joint U.S. Navy and Marine Corps Mobile Training Team conference, Naval Air Station Jacksonville. The Undetected Rapist.
  Delaware Judicial Education Retreat. Sex Offenders: Myths and Realities.
  S. Marine Corps. Special training for JAG officers: How Predators Pick Their Prey.
  California Administrative Office of the Courts. Handling Sexual Assault Cases: Sex Offender Characteristics and Evaluating Evaluations.
  Wisconsin Office of Justice Assistance Statewide Sexual Assault Response Team Conference. False Reports of Rape: What Do the Numbers Tell Us?
  Special Law Enforcement Training, State University of New York. The Behavior and Characteristics of Non-stranger Rapists.
  Prosecuting Attorneys Association of Michigan Sexual Assault Summit.Rapists: Myths and Realities.

Again, were the damage limited to misinforming attendees, it might not be so large as to warrant concern about the damage wrought by Lisak’s influence. Unfortunately, that’s not the case, either. For example:

A project funded by the U.S. Department of Justice compiled a list of 25 “facts” that judges who attended seminars offered by the National Judicial Education Program—a company for which Lisak has served as a faculty member and that continues to sell materials he created—said they wished they’d known before presiding over sexual assault cases involving adult victims. Although the fact list includes some reasonable and factual assertions, it also includes Lisak’s unfounded claims about serial predators and false reports. As part of its curriculum, NJEP advises judges to use voir dire to gauge prospective jurors’ familiarity with these “facts.”
Especially frightening was one judge’s conclusion that “when evaluating sex offender risk, actuarial assessments are more accurate than clinical assessments.” That is, a psychologist’s judgment of the danger the defendant represents should take a back seat to the statistical likelihood, based on Lisak’s “research,” that the defendant has committed other acts of “undetected” violence.
Lisak’s misinformation has been passed on to law students, practicing attorneys, and judges through a number of influential sources, including Cornell’s Law School, the Judicial Education Center, the Florida Court System, the National Center for State Courts, and the American Bar Association. In every case, the benefit is to the prosecution.
Even the National Academy of Sciences has used Lisak’s unsupported serial rapist theory to weigh in on “police mishandling” of rape accusations that “has allowed serial rapists like those in Lisak and Miller’s research to perpetrate again and again without detection.”
A 2016 amicus brief filed with the Supreme Court of Ohio made a similar charge but upped the ante by invoking Lisak’s (equally unsupported) claim that these serial offenders had a propensity for other violence as well.
Most troubling of all, Lisak’s material is being codified in law enforcement policies, legal precedents, and judicial guidelines at the local, state, and federal levels.

The Sexual Offense Bench Guide for judges in the state of Washington, for example, draws liberally from Lisak’s 2008 publication “Understanding the Predatory Nature of Sexual Violence.” His claims have been similarly incorporated into New Mexico’s Sexual Assault Bench Book, the Tribal Court Judges Bench Book on sexual assault, the Missoula County Attorney’s Office Policy and Procedure Manual, the Pennsylvania Crimes of Sexual Violence Benchbook, New York State’s Judicial Symposium, Wisconsin’s Prosecutor’s Sexual Assault Reference Book, and the Judge Advocate General Corps Criminal Law Desk Book.

The relationship between prosecutors, judges and the juries who will ultimately arrive at verdicts in criminal trials is further tainted by recommendations that prosecutors and judges incorporate into the jury selection process: namely, Lisak’s claim that false accusations are rare and his unsupported theory about serial offenses.

JAG guidelines for prosecutors, for example, advise that “myths” about the frequency of false reports be challenged “directly, in voir dire and in argument.” Prospective jurors whose information does not align with the (inaccurate) information provided in guidelines influenced by Lisak could then be dismissed and/or a seated jury could be told of the supposedly “true” facts. Recommendations from the NYU School of Law related to prosecuting sexual assault invoke Lisak to justify investing resources to pursue less credible cases because each represents “an opportunity to catch a serial rapist.” Prosecutors can, the recommendations continue, “uncover juror rape myth acceptance” via voir dire and “educate the jury pool about sexual assault.”

Once so codified in judicial and law enforcement guidelines, this toxic mixture of misinformation is extremely difficult to dislodge. Skewed jury pools, erroneous decisions at trial, and the weight of distortion have real consequences. A judge in Montana, for example, denied a request to have a case dismissed on the grounds of a Missoula police department requiring  officers to presume the guilt of the accused when investigating sexual assault. The judge stated that she based her ruling on Lisak’s (baseless, and thus misleading) testimony about the low rate of false reports. When such decisions are made, when presumptions of guilt are part of the training of judges and prosecutors, or reflected in jury instructions, innocent defendants are put in harm’s way.

Even those ostensibly in the business of impartial news coverage have been tainted by their own guidelines, as when the media have been fed the same misinformation, masquerading as insight. Their contribution to the problem is further amplified when they are further advised not to use the phrase “rape allegation” because “allegation is not a neutral term and strongly implies doubt,” and they fail to see that the alternative suggested—“reported rape”—implies an act that has, indeed, happened, distinguished only by the fact that it is on record.

Where does that leave those for whom accuracy, integrity, and truth matter?

The unfortunate reality is that the greatest potential harm of the current environment accrues to the accused. Therefore, defense attorneys already burdened with a state of affairs in which “accused” defaults to “perpetrator” and “accuser” defaults to “victim” need to equip themselves to take on not only expert witnesses citing bogus “research” but also the underlying studies.

This is not an easy assignment, but the use of good lawyering to dismantle bad “research” can be powerful, and good courtroom theater as well. When faced with a Lisakian claim that “only 6 percent of rape allegations are false,” the defense attorney can ask what percent, then, are true? David Lisak himself would have great trouble answering that question without being exposed as a statistical manipulator, because his writings have never even addressed it. Rather, he has used misleading language to imply that almost all rape accusations have been proven true. Indeed, a good defense lawyer could fairly ask: “Isn’t it a fact, Mr. Lisak, that the number of rape accusations that have been proven false may well be larger than the number that have been proven true?”

When the assertion about Lisak’s serial sociopaths is repeated, the defense attorney can point to the fact that Lisak’s study never established a single serial crime, nor that any of the rapists were undetected, and to Lisak’s own statement that his findings cannot be generalized beyond the limited scope of a single study. When Lisak’s “interviews” are invoked, the defense attorney can ask: How could anyone interview survey participants whom he never met and whose identities he never learned? Weren’t the only interviews Lisak actually did those with the 12 subjects of his three-decades-old dissertation research? And were not the highly impulsive subjects described in his dissertation wholly unlike the portrait he later painted of sociopaths with excellent impulse control who premediate and plan their crimes?

Lisak’s claims are wrong and the experts who tout them are vulnerable when asked direct questions. The discrediting of Lisak must become part of the court record, in case after case, before the far more difficult task of correcting the effects of his bogus claims on criminal justice policies can be accomplished.

The focus here has been on one particular—and particularly problematic—conveyer of misinformation. David Lisak’s high profile and willingness to depart from even his own published papers in service of an agenda makes him the embodiment of the attack on due process. But Lisak is not alone. He has recently been joined by other “experts” straying even further afield from verifiable data and often in direct contradiction of known science.

The difficulty of fighting the toxic distribution of misrepresentation and statistical sleight-of-hand is partially a function of high-profile purveyors and enablers. The codification of myths in law enforcement procedures; in the training of prosecutors and judges; and in policy at the town, county, state, and federal levels all but guarantees insidious and continuous regeneration. The roadmap such myths provide is wrong but concrete, offering up sociopathic villains in place of a continuum of offenders, permission to presume guilt in the absence of evidence, and a philosophy that accusers not only don’t lie but are never mistaken. Few combinations are more immune to objective inquiry than fear of monsters and the comfort of easy answers for taking them down.

But objective inquiry is called for and those who put obstacles in its way must be confronted. Neither law enforcement nor the courtroom should be a conducive environment for misinformation. It should not be intentionally introduced or passively tolerated. For now, a disproportionate burden will fall to defense attorneys. The battle against misinformation starts one case at a time.

Linda LeFauve is a college administrator and a contributor to Reason.
Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

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Indeed, American politics has not seen a moment like this one since 1987. That was when the retirement of moderate Justice Lewis Powell, who was the pivotal vote on many big issues, left the court with four strong conservatives and four strong liberals. (The latter included Sandra Day O’Connor, whose votes through 1987 had been quite conservative.)

It was clear then that if the Democratic-majority Senate confirmed President Ronald Reagan’s first nominee, the very conservative Judge Robert Bork — as at first seemed likely — the court would swing hard to the right.

Bork himself later told me and others that he would have been the fifth vote to overrule Roe v. Wade and a lot more liberal precedents. But Democratic senators and liberal interest groups went all out to stop him and succeeded by a 58-42 vot

Now the court has four strong liberals, three strong conservatives and one less consistent conservative, Justice Anthony Kennedy. He sometimes joins the liberal bloc on issues including abortion, gay rights and the death penalty. Kennedy also happens to be the Reagan nominee whom the Senate confirmed after Bork’s defeat.

If and when a liberal replaces Scalia, therefore, the court will likely overrule or cut back sharply major conservative precedents including those limiting abortion rights, those restricting race-based affirmative action (in theory if not so much in practice) and those giving strong First Amendment protection to unlimited spending in election campaigns.

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But what he was obviously trying to say made an important point that had nothing to do with racism — a charge hurled at Scalia by people including Harry Reid, the Senate Democratic leader, who once again wallowed in shameless demagoguery.

calia began by saying that “there are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a slower track school, where they [would] do well.”

This was seen by many as a racist suggestion that blacks are inherently unfit for top schools. And phrases like “less advanced school” and “slower track school” sounded derogatory.

But Scalia clearly meant to say that perhaps it does not benefit blacks to use large racial preferences to get them into a highly selective university where, all the evidence shows, such preferentially admitted students don’t do well.

He continued for a few more awkwardly worded sentences to sketch the consequential theories advanced in works including a 2012 book by Richard Sander and me, “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It,” and in amicus briefs by us and others.

Scalia’s bad choice of words gave critics such as Reid a pretext to dismiss mismatch theory without confronting the growing body of evidence that it points to very serious problems caused by large admissions preferences.

But the gist of Scalia’s point is consistent with common sense. Why is anyone surprised at the idea (confirmed by data) that black students have a hard time thriving academically when brought by very large racial preferences into competition with classmates most of whom are far, far better prepared? (Small preferences, we think, create no such problem.)

Scalia’s point is also supported by a large and growing body of social science studies by more than 20 respected scholars about the effects of large racial preferences.

Mismatch theory does not deny that many black students are academic stars. President Obama, for one. It points to the problems of all students who are admitted via large preferences, as are some very rich donors’ children, some athletes, many Hispanic students, and the vast majority of black students.

(The “legacy preferences” at many schools for alumni children, which I also oppose, appear to be much smaller, with a much smaller mismatch effect, the scant available data suggest.)

The research also suggests that black students do fine when competing against Asians and whites who arrive at college with similar academic credentials.

While the details are complicated, mismatch theory and the research underlying it are easy to understand in a general way.

Below are five critical facts (detailed in “Mismatch”) that no open-minded expert doubts, although the universities, other supporters of racial preferences, and most of the news media conceal them insofar as possible.

(1) Because of very large racial preferences in admissions, the racial gaps among entering students in test scores, high school grades, and other indicia of academic preparation are enormous at virtually all selective colleges — on the order of 200-450 SAT points between the mean black and Asian, and 150-400 points between the mean black and white, students at the same college. There are also commensurate racial gaps at almost all selective colleges in entering students’ high school grades if adjusted for high school quality.

(The gaps are much smaller among “holistically” admitted students at state colleges in California, Michigan, and other states where racial preferences have been outlawed.)

(2) As a result, there are also large racial gaps in academic performance in college and graduate school. More than half of black students end up in the bottom tenth of their classes in law schools and in the bottom quarter at most selective colleges, no matter how hard they work.

(3) Five undisputed, peer-reviewed studies show that these racial gaps also force highly disproportionate numbers of the many black students who are interested in becoming scientists to give up that ambition. The reason is that they cannot do well in science and other STEM courses and thus move into soft, easily graded courses.

(4) All this creates or aggravates racial isolation and self-segregation, in part because studies show that unsuccessful students take different courses than successful students and that most students socialize mainly with their academic peers.

(5) Most of same black students who suffer academically at schools to which they were admitted via large preferences would do far better at somewhat less competitive schools where their academic preparation would make them competitive with classmates. But because of what is called the cascade effect, as long as there are large preferences there will be large racial gaps in academic preparation and performance at virtually all selective schools.

My co-author and I, and others, draw from the limited available evidence two hugely important but debatable inferences. The first, of which I am very convinced, is that mismatch leads to a loss of intellectual self-confidence among many black students that may be long lasting.

The second inference is that many recipients of large racial preferences would be better off in the long run — with more learning, better careers, and perhaps happier lives — if they went to less prestigious but still excellent schools where they could do well academically.

Prestige has obvious advantages. The question is whether they outweigh the costs of being near the bottom of the class.

Serious mismatch scholars say that more data, which universities assiduously conceal, are needed to shed light on these two issues, and on related ones such as whether the current campus unrest is related to the academic problems that most black students suffer because of mismatch.

On the other hand, virtually all of the highly credentialed scholars who attack mismatch theory gloss over the five numbered facts above — which they know to be true — and launch ill-founded and often intemperate attacks on the debatable inferences as though they discredit all of mismatch theory.

At the same time, these anti-mismatch zealots furiously oppose making available to scholars or the public the data that could shed light on the long-run effects of large racial preferences on the students about whom they purport to care. I think I know why.

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In an Oxford-style Intelligence Squared debate held on December 3, 2015, Roger Clegg of the Center for Equal Opportunity and I argued for the proposition that “The Equal Protection Clause forbids racial preferences in state university admissions.”

You can watch video of the debate at IntelligenceSquaredUs.org or via Intelligence Squared’s YouTube channel. The transcript may be read online at IntelligenceSquaredUS.org.

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Because the court sided with the president, Obamacare will continue in effect with no change from the current pattern of distributing to many millions of low-and-middle-income people in all 50 states the premium subsidies (in the form of tax credits) that make health insurance affordable for many or most of them.

Obama declared soon after the decision was announced that “the law is working and it’s going to keep doing just that. This is health care in America.”

Chief Justice John Roberts, the author of the opinion, and Justice Anthony Kennedy joined the four more liberal justices over a strong dissent by the three more conservative ones, wisely bowing to the clear, though incompetently expressed, intent of Congress to make health insurance affordable in all 50 states.

Roberts and Kennedy did the right thing despite Kennedy’s vote three years ago to strike down a key provision; despite the furious attacks they could expect from conservatives calling them traitors; and despite the tensions between Thursday’s decision and the principles of “textualist” statutory interpretation that both men largely espouse. (More on that below.)

Ironically, many Republican officeholders and politicians also will welcome the decision, at least privately.

They would be in a very difficult position had the Court adopted the dissenters’ view that a few words buried deep in the law’s 2,700 pages made almost 6.4 million low-and-middle-income people in the 34 affected states ineligible for subsidies and thus, in most cases, unable to afford insurance.

Roberts wrote persuasively for the majority that taken as a whole, the language, contextual meaning, structure, history, and overarching purpose of the Affordable Care Act (ACA) made legal in all 50 states the subsidies that the Obama administration has been distributing to make their health insurance affordable.

While admitting that the arguments of the dissenters and the plaintiffs about the “plain meaning” of the relevant ACA provision were “strong,” the chief justice held that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

Spirited dissent

Justice Antonin Scalia’s dissent, joined by Clarence Thomas and Samuel Alito, was characteristically hyperbolic.

They thundered that the decision was “absurd,” “feeble,” “indefensible,” “interpretive jiggery–pokery,” and shows that “[w]ords no longer have meaning,” while concluding that “the discouraging truth [is] that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes top uphold and assist its favorites.”

The dissenters, like the plaintiffs in the case, King v. Burwell, argued that people in the 34 states that have left it to the federal government to establish the ACA-required online insurance “exchanges,” or marketplaces, rather than establishing exchanges for themselves, do not qualify for the premium subsidies.

They claimed that section 36B of the ACA means what it says when read literally and without regard to Congress’ intent: that subsidies are available only to people “enrolled . . . through an exchange established by the state.”

Chief Justice Roberts, however, held that while the law was “ambiguous,” the majority’s interpretation was both consistent with “the way different provisions in the statute interact” and necessary to avoid defeating the ACA’s purpose by sending insurance markets in the federal-exchange states into an “economic death spiral.”

Without premium subsidies, he explained, many people in those states could not afford insurance; many of those would become exempt from the law’s mandate that they buy insurance; other healthy people would also drop insurance; and premiums would soar.

Roberts further explained that the ACA “contains more than a few examples of inartful drafting,” because “Congress wrote key parts of the Act behind closed doors, rather than through the traditional legislative process. . . . As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

Still, he said, a “fair reading” must take into account the fact that Congress passed the ACA “to improve health insurance markets, not to destroy them.”

Scalia retorted in his dissent that the Roberts interpretation “is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State” means ‘Exchange established by the State or the Federal Government“? He added that “[o]nly when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake.”

The closest the dissent came to addressing the law’s clear purpose of improving health insurance markets was to say that “even if making credits available on all Exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the Act.”

Scalia added that “[w]e lack the prerogative to repair laws that do not work out in practice,” and that the Court’s “revision” of the ACA was not “respectful of congressional authority” but rather “judge-empowering” — and in a way that authorizes the federal government “to spend tens of billions of dollars every year in tax credits on federal Exchanges.”

Opposite decision

A decision going the other way could have caused the collapse of health insurance markets in the 34 affected states, with few but sick people continuing to be insured and, thus, soaring premiums.

Such a ruling against the president also would have sown conflict among Republican politicians and presidential candidates.

Congress would have been under heavy Democratic pressure to adopt federal legislation nullifying the Court’s decision lest Republicans be blamed for helping the Court take health insurance away from millions of Americans. Republican officials in the affected 34 states would have been under great pressure to create their own insurance exchanges.

But efforts to help Democrats “save” Obamacare would have offended Republican base voters.

Unlike the constitutional challenge to the ACA’s so-called  “individual mandate” that the justices rejected by 5-4 on June 28, 2012, Thursday’s decision focused on deciding what the subsidy provisions of the massive, hastily drafted ACA mean.

Roberts stunned Court-watchers when he sided with the four liberal justices and upheld the individual mandate in the 2012 decision, National Federation of Independent Business v. Sebelius.  His usual allies — Kennedy, Scalia, Thomas, and Alito — angrily assailed him. Many other conservatives called him a traitor.

This barrage was intensified by a well-sourced news report that Roberts had initially voted to strike down the individual mandate and changed his mind after liberals led by Obama had preemptively denounced any decision to strike down the mandate as politically motivated conservative “judicial activism.”

The mounting crescendo of conservative denunciations of Roberts will be even more bitter this time.

Had Roberts (and Kennedy) voted against Obama, on the other hand, it would have fed the kind of attacks that the chief justice dreads on the Roberts Court’s conservative, Republican-appointed majority as a bunch of robed politicians.

Textualism vs. intent

King v. Burwell, brought against Health Secretary Sylvia Mathews Burwell by four Virginia plaintiffs, posed a problem of principle for Roberts and Kennedy that is not widely understood. As noted above, both largely espouse the “textualist” approach to statutory interpretation embraced by the court’s other conservatives, and many others.

Textualism ignores the “congressional intent” proclaimed by congressional leaders and heeds only the words of a law’s text. One major justification for this approach is that a statute’s text is usually the best guide to what Congress meant, and the most resistant to manipulation by politicized judges. The other is to force Congress to say what it means and mean what it says for the sake of clarity and consistency in the law.

Textualism works pretty well with garden-variety statutes. But what’s a textualist to do when Congress quite obviously did not mean the words (“established by the state”) that some bleary-eyed staffer inserted into a massive pile of paper that no member (or few) ever read? And that nobody caught because of the peculiar politics that prevented that pile of paper from going to a conference committee for vetting? And when the law, like it or not, is enormously important?

Is the best answer Justice Antonin Scalia‘s suggestion at the March 4 oral argument that the court must read “established by the state” literally even if the wording “may not be the statute [that Congress] intended” and even assuming that it might “produce disastrous consequences?”

Roberts and Kennedy appear not to think so, and it’s a good thing too. Their votes, if not the main thrust of the Roberts majority opinion, seem to embody what a pragmatist might say:

“We all know that those four words were a huge blunder, saying the opposite of what Congress meant. But like it or not, this law is so important, and the wreckage caused by rigorous application of textualism would be so great, that we should rise above principle, put clarity and consistency aside this time, and do what we know Congress intended.”

Solicitor General Donald Verrilli made no such pragmatic argument in defense of the Obama interpretation, probably out of concern that it might seem unprincipled to textualist justices. Instead, he argued that in the context of other ACA provisions, the words “provided by the state” are a “term of art” that mean the opposite of what they say.

Verrilli’s argument was a stretch. But it worked — if only because Roberts and Kennedy were willing to temper their textualism with a dose of pragmatism.

Another challenge

King v. Burwell is not the last major legal challenge to Obamacare. Another case raises a possibility that despite the ruling for Obama on Thursday, billions of dollars in ACA subsidies for insured people with modest incomes may still be in peril.

In House of Representatives v. Burwell, the Republican-led House argues that the president violated the Constitution by using Treasury funds that Congress had not appropriated to pay for $175 billion in subsidies over 10 years. The administration has been using the money to reimburse insurance companies, as provided by the ACA, for helping modest-income insured people reduce out-of-pocket costs including deductibles and copayments.

The administration initially asked Congress to appropriate the money. Then, when Congress did not act, it claimed that it already had authority to use a separate account established for tax credits and refunds. Calling the payments an urgent priority, it proceeded with the spending in early 2014.

The House claims that Obama thereby violated Article I, Section 9 of the Constitution. It says: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

This “power of the purse” is seen by Congress as its most important protection against presidential usurpation of power.

The lawsuit got an apparently respectful reception from Judge Rosemary Collyer, of the U.S. District Court for the District of Columbia, at a spirited hearing on May 28. She aggressively challenged Justice Department lawyer Joel McElvain’s argument that the House had no legal standing to sue.

“So it is your position that if the House of Representatives affirmatively voted not to fund something… then that vote can be ignored by the administration, because after all no one can sue them?” Collyer asked McElvain. She added: “I want you to explain . . . why it’s not an insult to the Constitution.”

Judge Collyer, who was appointed by President George W. Bush, said she had “no idea” how she would rule on the standing issue, which is so far the only one before her.

The House filed its highly unusual lawsuit challenging the administration’s spending last November; the suit also seeks a ruling that the administration violated the ACA when it delayed implementation of the ACA’s mandate that certain employers provide health insurance to their workers.

The post Court Shows Judicial Restraint, Rejects Threat to Obamacare Subsidies appeared first on Stuart Taylor, Jr..

MARY AGNES CAREY, KAISER HEALTH NEWS: Welcome to Kaiser Health News, I’m Mary Agnes Carey. By a vote of 6-3, the Supreme Court today upheld the health law subsidies that helped millions of Americans purchase health insurance. With me now to discuss the decision is legal analyst Stuart Taylor of the Brookings Institution, and Kaiser Health News Senior Correspondent Julie Appleby. Thanks to both of you for being here.

STUART TAYLOR JR., THE BROOKINGS INSTITUTION: Nice to be with you.

JULIE APPLEBY, KAISER HEALTH NEWS:  Good to be here.

MARY AGNES CAREY: Stuart, I want to start with you. I want to talk about ]what Chief] Justice Roberts wrote for the majority.  Why did he uphold the administration on this subsidy issue?

STUART TAYLOR JR.: The chief justice began by acknowledging that a few poorly words in this 2,700-page law, if they were interpreted literally, would cripple the Affordable Care Act in 34 states for complicated reason. So he said, but we don’t have to interpret these words literally, we shouldn’t interpret them literally, because when you read them in the structure of lots of interlocking provisions of this statute, in that context and in the overall structure, they become ambiguous. And then you look to what was Congress trying to accomplish here? They were trying to improve insurance markets all over the country. We shouldn’t interpret this law, unless we really have to, in terms of language, as having to destroy health insurance markets.

Because he explained that it would destroy health insurance markets if the Obama interpretation were rejected. First, it would mean there would be no premium subsidies for millions and millions of people in those 34 states. Then, many of them wouldn’t be able to apply for insurance. They wouldn’t buy insurance; others would no longer have to buy the insurance for complicated reasons, and there would be what he called the “death spiral.” With premiums soaring because only sick people are getting insured, he says, Congress certainly didn’t mean that to happen. And that heavily influenced his interpretation.

MARY AGNES CAREY: Justice Scalia wrote the dissent. He was equally as spirited in a completely different reading.

STUART TAYLOR JR.:  Yes, I’m just looking at some of his adjectives, he’s always fun for adjectives. Absurd, feeble, indefensible and my favorite was a noun interpreted “jiggery pokery.”

MARY AGNES CAREY: Yeah, I like that one.

STUART TAYLOR JR.: Those were the ways he characterized the Roberts’ opinion and he went on in his usual eloquent hyperbolic dyspeptic way for 21 pages to trash the majority opinion. And Roberts responded, as is customary in majority opinions, in a much more measured fashion in a few little footnotes saying well Justice Scalia says X or the defense says Y, but we disagree, here’s why.

MARY AGNES CAREY: So in the dissent, the words “established by the state” were interpreted much more literally as an exchange established by the State. That’s how I read that as well.

STUART TAYLOR JR.: Exactly and that’s what was forecast and that’s the whole argument in the case. Does the fact that they said subsidies are available in exchanges, marketplaces established by the state as opposed to those established by the federal government, are people in those ineligible unless they are established by the State,

Does that mean you can’t get a subsidy? And the dissent basically said, “It means what it says, it says what it means.”  And the majority said, “Ah, not so fast.” Sometimes, things don’t say exactly what they seem to say when you read them in their larger context.

MARY AGNES CAREY:  Going back to the majority opinion for a minute, is it written in a way that a future Internal Revenue Service couldn’t come in and say then subsidies aren’t available in the federally run exchanges.

STUART TAYLOR JR.: No, Chief Justice Roberts ruled that out, basically. The question was debated at oral argument. In fact, Roberts asked, if we’re deferring to the interpretation of the IRS, does that mean a new IRS could come along and say we’re changing it? And he mooted that question in the decision by saying, we’re not deferring to the interpretation of the IRS. We’re agreeing with the interpretation of the IRS, but it’s our interpretation and the IRS can’t change it.

MARY AGNES CAREY:  And Julie, let’s talk a little bit about the administration, the Democrats.  They must be just elated over this. What’s been the reaction?

JULIE APPLEBY:  You know, a little while ago, the president came out of the White House and gave a short speech. And basically, he said that after more than 50 attempts to repeal this, after a presidential election, after a couple of Supreme Court challenges, he said the ACA is here to stay.

So he made that very clear: The ACA is here to stay.  He went on to say the Supreme Court upheld a very critical part of this law — the subsidies that more than 6.8 million people are currently receiving. But I think in a nod to some of the discussion about repeal, he also mentioned the broader context here — that this law affects a lot of Americans. And he mentioned a few things. He mentioned being able to keep your kids on your plan until they’re age 26, and he mentioned the fact that insurers can no longer reject people who have medical conditions. So he tried to show that this is a broad-reaching law. He did come out and say that he wants to work with the Republicans and the Democrats. He acknowledged there’s more that needs to be done, and he said he would work with them.  He called out some of the states that haven’t yet expanded Medicaid. There are about 20 states who haven’t expanded eligibility for the Medicaid program and he said he would be working with the governors and legislatures there to try to encourage them to do that.

MARY AGNES CAREY:  How about Republicans? What have they been saying today?

JULIE APPLEBY: You know, the Republicans in their official statements are coming out and saying that they’re not happy with this decision, but I do think many of them are breathing a sigh of relief because if the subsidies had gone away they would be in a position where lots of Americans would be losing these tax credits to help them purchase insurance. And they had not coalesced around a plan to fix that or to deal with that. So, I think in many cases they are a little relieved, but at the same time they are continuing to talk about how this is not a good law and it’s fundamentally broken.

MARY AGNES CAREY:  And so it sounds like their efforts to repeal will continue. How does this shape the 2016 presidential election, this decision today? What’s going to be the impact?

JULIE APPLEBY: You know that’s going to be very interesting. I think that Hillary Clinton will certainly make it a big part of her campaign to keep this law in place and say that the Democrats would support that. I think the Republicans are in a little bit more of a difficult situation because repealing is going to mean that you might be taking some things away from millions of Americans who already have it. So that’s a little bit more difficult of a message, but that will probably still be out there. I think this still will be a discussion in the election, but I think there are other issues that may be larger — like the economy.

MARY AGNES CAREY:  Stuart, can you take us through … are there other pending legal challenges to the Affordable Care Act?

STUART TAYLOR JR.: There are at least two, but only one of them, I think, is very serious in terms of any possibility of having much impact on the Act. That’s in a lawsuit brought by the House of Representatives as a body — which is highly unusual — against the administration. The first question is do they have legal standing — can the House of Representatives bring a lawsuit, which is an open question. But the claim they are making is not silly. The claim they are making is that hundreds of millions — hundreds of billions of these subsidies over the next 10 years were not appropriated by Congress; that the administration asked Congress to appropriate this money on a year-by-year basis, and Congress refused. And the Constitution says money can’t be spent by the government unless it’s appropriated by Congress. So that gives the administration a problem. The lawsuit’s being taken seriously by federal District Judge Rosemary Collyer, who sits here in the District of Columbia. But, it’s got a long way to go, and even if it’s successful, which I would bet against, it’s not going to cripple the Obamacare law the way a decision going against the president today would have crippled it.

MARY AGNES CAREY: All right, we’ll leave it there. Thank you so much, Stuart Taylor and Julie Appleby.

JULIE APPLEBY: Thank you.

STUART TAYLOR JR.: Thank you.

The post Why Did The Supreme Court Uphold The Health Law’s Subsidies? appeared first on Stuart Taylor, Jr..

– The justices ruled by 5-4 that the University of California’s Hastings Law School can deny official recognition, funding, and campus facilities to a Christian student group that excludes openly gay students and others who will not follow the group’s religious tenets from obtaining leadership roles.

Justice Ginsburg’s majority opinion, with Justice Kennedy joining the four liberals this time, stressed that the Christian group was seeking “a preferential exemption” from Hastings’s policy of recognizing and assisting only student groups that “open eligibility for membership and leadership to all students.”

Justice Alito’s dissent, joined by the three other conservatives, complained that that the principle underlying the majority’s decision was “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” The case was Christian Legal Society v. Hastings College of the Law.

– The court struck down as an invasion of presidential power a key provision of the 2002 Sarbanes-Oxley law, which was designed to prevent corporate accounting scandals like those that had caused the collapse of Enron and WorldCom.

The now-voided provision provided an unusual two-level protection against removal for members of the newly created Public Company Accounting Oversight Board. It provided that neither the Securities and Exchange Commission nor the president could dismiss board members without some “cause.”

Chief Justice John Roberts wrote for the five-justice majority that “such multilevel protection from removal is contrary to Article II’s vesting of the executive power in the president.” The four liberals dissented in the case, Free Enterprise Fund v. Public Company Accounting Oversight Board.

– A patent-law case widely followed by the business community ended up producing only a narrow ruling that left much unresolved. The justices passed up a chance to determine whether computer software, medical diagnostic tests, online shopping methods, and other business methods can be patented. They agreed only that patent law does not protect the business practice before the court in the case at hand, Bilski v. Kappos. It involved a method of hedging against the effects of weather on energy prices.

The post Supreme Court Sides with Universities and Members of Oversight Board appeared first on Stuart Taylor, Jr..

This proposal, reported on June 16 by National Law Journal’s Blog of Legal Times based on an interview with Leahy, who said he had drafted a bill and would probably introduce it, would be “a major shift in how the Court operates,” the blog said.

Here’s the BLT report. Leahy’s idea raises interesting questions and there is much to be said both for and against it.

But why is it popping up now? And why was Senator Orrin Hatch, R-Utah, so quick to tell the blog that his initial reaction was negative?

It has been widely known for many decades that recusals can produce 4-4 ties, an outcome regarded as a waste of the Court’s time because a tie vote creates no Supreme Court precedent, leaving the lower curt decision undisturbed, as though the justices had never studied the briefs, heard arguments, and cast their votes.

Leahy said that he got the idea of enlisting retired justices to avoid 4—4 votes from soon-to-retire Justice John Paul Stevens, who suggested it during a meeting.

Hmmmm. It’s not hard to see why Stevens–who is still sharp at age 90 and appeared to be torn about his decision to retire – might like to keep his hand in now and then.

As for Leahy, he is well aware that the only living justices who have already retired are David Souter and Sandra Day O’Connor.

Stevens and Souter have been solid members of the Court’s liberal faction. And O’Connor voted with the liberals in almost all of the biggest 5—4 decisions in her last few years on the Court. These included cases on abortion, affirmative action preferences, racial gerrymandering of election districts, presidential war powers, religion, campaign finance reform, the death penalty, gay rights, and others.

The only cases in which a justice’s recusal matters are those in which the other eight justices end up splitting 4—4. And most of those, especially the biggest ones, are liberal-conservative splits.

So the apparent impact of the Leahy proposal would be to insure liberal victories in almost every big case in which it makes a difference for the foreseeable future. None of the more conservative justices appears close to retiring.

Bet on a Republican filibuster if Leahy’s idea ever gets to the Senate floor.

The post Leahy Proposal to Avoid 4-4 Ties: It’s About Timing appeared first on Stuart Taylor, Jr..

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who turned 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades – Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter , Warren Burger and Lewis Powell – Stevens has become markedly more liberal during his years on the court. Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never – or, at least not yet – made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues, including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.

Examples: Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove vs. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany’s detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair.

But over the years, Stevens became convinced that the safeguards have not worked and that the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good. Defendants’ rights. Stevens has said in interviews that his father’s apparently unwarranted embezzlement conviction taught him that the criminal justice system could …

Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President Gerald Ford in 1975 to its left flank, has told several reporters that his ideology has not really changed much. Rather, according to Stevens, he has remained about where he always was, while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who turned 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades – Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter , Warren Burger and Lewis Powell – Stevens has become markedly more liberal during his years on the court. Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never – or, at least not yet – made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opini…

Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President Gerald Ford in 1975 to its left flank, has told several reporters that his ideology has not really changed much. Rather, according to Stevens, he has remained about where he always was, while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who turned 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades – Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter , Warren Burger and Lewis Powell – Stevens has become markedly more liberal during his years on the court. Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never – or, at least not yet – made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues, including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.

Examples: Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove vs. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany’s detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair.

But over the years, Stevens became convinced that the safeguards have not worked and that the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good. Defendants’ rights. Stevens has said in interviews that his father’s apparently unwarranted embezzlement conviction taught him that the criminal justice system could …

Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President Gerald Ford in 1975 to its left flank, has told several reporters that his ideology has not really changed much. Rather, according to Stevens, he has remained about where he always was, while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who turned 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades – Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter , Warren Burger and Lewis Powell – Stevens has become markedly more liberal during his years on the court. Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never – or, at least not yet – made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues, including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.

Examples: Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove vs. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany’s detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair.

But over the years, Stevens became convinced that the safeguards have not worked and that the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good. Defendants’ rights. Stevens has said in interviews that his father’s apparently unwarranted embezzlement conviction taught him that the criminal justice system could lead to great injustices. But "examining Stevens’ first full year on the court nevertheless reveals a justice who often appears unsympathetic to criminal defendants’ rights," according to "The Stevens Myth," a recent New Republic piece by Justin Driver, an assistant professor at the University of Texas Law School. "Stevens wrote a dissent in Doyle vs. Ohio contending that it should be constitutional for a prosecutor to cross-examine a defendant regarding his failure to offer an exculpatory story immediately after being arrested and receiving Miranda warnings," Driver observes.

"… Today, in stark contrast, Stevens views Miranda as sacrosanct." Freedom of speech. The early Stevens was seen as no friend of broad free speech rights, then – though not so much now – a liberal article of faith. He wrote a plurality opinion in a 5-4 decision in 1976 upholding local zoning laws limiting where adult (but not obscene) films could be shown. Two years later, he ruled for the court, over a liberal dissent, that the Federal Communications Commission could penalize a radio station for airing George Carlin’s "Filthy Words" monologue. But in recent decades Stevens has usually joined liberals in free speech cases.

Medicaid abortions. In 1977, Stevens joined a majority ruling that states may constitutionally deny Medicaid funding for abortions that did not qualify as "medically necessary." William Brennan, Thurgood Marshall and Blackmun dissented. Since then, Stevens has been a reliable supporter of abortion rights.

Stevens’ evolution resembles Blackmun’s more dramatic movement from fairly consistent conservative after President Richard Nixon appointed him in 1970 to becoming the most liberal justice when he retired in 1994. (The even more liberal William Brennan and Thurgood Marshall had retired in 1990 and 1991, respectively.)

Blackmun was known above all as a passionate champion of abortion rights since he wrote Roe vs. Wade in 1973. That decision seemed less controversial when issued than it was to become; indeed, Stevens was not asked a single question about abortion during his brief 1975 confirmation hearing. Over the next decade, Blackmun had also become passionately liberal on racial preferences, gay rights, the death penalty, defendants’ rights, religion and most or all other big issues.

O’Connor’s leftward evolution – from moderate conservative in the first few years after President Ronald Reagan named her in 1981 to moderate liberal by the time she retired in 2005 – was less dramatic but unmistakable.

Her early abortion opinions, for example, led many experts to predict that she would vote to overrule Roe vs. Wade. She also voted against constitutional protection of homosexual conduct in 1986 and sided through 1995 with conservatives on racial preferences, warning in a 1989 plurality opinion that they may "promote notions of racial inferiority and lead to a politics of racial hostility." But in 1992, O’Connor cast a crucial vote – as did Souter and the Reagan-appointed Anthony Kennedy – that joined liberals (including Blackmun and Stevens) in reaffirming the basic abortion right declared in Roe. While O’Connor, Souter and Kennedy trimmed abortion rights around the edges over liberal protests, they left U.S. abortion law more liberal than that of any nation in Europe. And in 2003, O’Connor voted with Souter, Stevens, Kennedy and Clinton-appointed Justices Ruth Bader Ginsburg and Stephen Breyer to strike down a Texas prosecution for homosexual sodomy as unconstitutional. That year she also wrote a major 5-4 decision – joined by Stevens, Souter and the two Clinton appointees (but not Kennedy) – upholding the University of Michigan Law School’s very large racial preferences in admissions. The law school would, for example, almost always admit a black or Hispanic applicant with a B average ahead of an otherwise similarly qualified Asian or white student with an A average.

Stevens and the other more liberal justices have sometimes gotten a fifth vote from Kennedy, who since shortly after his 1988 appointment has been center-right on some issues and center-left on others. This posture has enabled Kennedy in recent years – much like O’Connor from about 1990 to 2005 – to be the pivotal vote determining whether liberals or conservatives would win. But unlike O’Connor, Stevens and Blackmun, Kennedy has been fairly consistent over time.

One reason why so many Republican appointees have turned out to be more liberal than the presidents who picked them has been the difficulty of getting nominees with conservative paper trails through the Senate.

Reagan chose Kennedy, whose record as an appellate judge was fairly centrist, only after the Senate had rejected the far more conservative Robert Bork by 58-42. President George H.W. Bush chose Souter, a so-called stealth nominee, because his views were so unknown that there was little for Democrats to attack. He soon proved to be fairly liberal. Blackmun and O’Connor as well as Stevens, on the other hand, clearly "evolved," as liberal journalists and academics have said approvingly. Their ideological drift has to some extent mirrored the direction of general public opinion, such as diminishing bias against gay people. But the public has never moved sharply to the left – as has Stevens and as did O’Connor and Blackmun – on abortion rights, racial preferences or church-state issues such as school prayer.

While many liberals see this trend as a case of acquiring wisdom on the job, conservative critics including Justices Clarence Thomas and Antonin Scalia have claimed that their more liberal Republican-appointed colleagues have been moved neither by wisdom, nor by legal principle, nor by general public opinion, but by the leftward march of the intellectual elite, especially in the media and academia. While I would not dismiss the liberal view, the conservative critique seems more plausible. Indeed, it would be only human, as I wrote in 2003, for justices who arrive without settled ideological convictions to evolve in a liberal direction. The justices’ reputations are determined in large part by mostly liberal news reporters, commentators and law professors and by liberal feminist, civil rights and professional interest groups such as the American Bar Association. Newly appointed justices who vote conservative are often portrayed as uncompassionate right-wing ideologues. Those who move leftward win praise for enlightenment. ("I ain’t evolving," the aggressively conservative Thomas has reportedly told clerks.) And the bright young law clerks – the justices’ closest professional collaborators – tend to come from elite law schools where conservative professors are rare birds and general public opinion is widely seen as benighted.

As a conflicted moderate with (for example) a center-left sympathy for gay rights and a center-right discomfort with large racial and gender preferences, I myself am more happy with the court’s direction than I would be had Stevens, Blackmun, O’Connor, Souter and Kennedy all been as conservative as Scalia, Thomas, Samuel Alito , Chief Justice John Roberts and the late Chief Justice William Rehnquist. Or vice versa.

I am also concerned that the balance may have tipped too far to the right when Alito replaced O’Connor in 2006, making possible such aggressively conservative (and in my view unwise) decisions as the 5-4 ruling in January striking down the 63-year-old federal ban on independent campaign spending by business (and other) corporations and unions. But don’t believe people who portray the court’s handiwork in recent decades as moving to the right of the mainstream of general public opinion, and as moving dramatically to the right of the pre-Reagan court.

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