Sydney White From Bowers to Obergefell: The US Supreme Court's Erratic, Yet Correct, Jurisprudence on Gay Rights Sydney White Abstract: The gay rights movement has seen consistent support from the US Supreme Court over the last 25 years since the ruling in Romer v. Evans (1996). Culminating in recent years with the Obergefell v. Hodges (2015) ruling, which legalized same-sex marriage nation- wide, the Court’s jurisprudence has been an odd combination of internally consistent and erratic. How have the justices reasoned through this shift in their court opinions? How has the Court’s level of scrutiny for discrimination on the basis of sexuality heightened while the level of scrutiny for discrimination on the basis of gender or race has simultaneously lowered? Furthermore, what might this mean for future court battles related to civil rights? In the last 35 years, there has been a rapid shift in laws concerning same-sex conduct and same-sex marriage in the United States. At the time of the 1986 Bowers v. Hardwick decision, 24 states and the District of Columbia outlawed sodomy (1). Although these laws purported to ban sodomy for all couples regardless of their sexual orientation, anti-sodomy statutes were primarily a means of curtailing the sexual activity of gay men (2). Today, by contrast, gay and lesbian couples are allowed to marry throughout the US. This paper explicates this major shift in the Supreme Court’s jurisprudence, particularly through an examination of the interplay between the due process and equal protection claims made by plaintiffs, as well as through an analysis of American federalism and the conflict between state and federal laws. I argue that such a shift is a normative good, as the right to marry guaranteed in Obergefell v. Hodges (2015) grants gay couples greater hospital visitation privileges, marital status for tax purposes (such as inheritances), and ac- cess to numerous other privileges originally only allowed to heterosexual couples (3). Nonetheless, the Court’s jurisprudence over this time raises numerous questions. To what extent did the Court shift its level of scrutiny over the course of 35 years— from Bowers to Obergefell —without explicitly saying so? Is the Court’s use of the Equal Protection Clause and the Due Process Clause in Obergefell contrived? In my view, the Court’s decision in Obergefell should not have been seen as a surprise; indeed, it was a natural extension of the Court’s jurisprudence on gay rights since Romer v. Evans (1996). Nonetheless, the Court’s equal protection and due process jurisprudence is riddled with inconsistencies on these issues, and Justices Scalia, Thomas, and Roberts were right to point out the Court’s erratic invocation of different levels of scrutiny. Background and History: From Bowers to Lawrence Although overruled by Lawrence v. Texas (2003), Justice White’s and Justice Pow- ell’s reasoning in Bowers v. Hardwick (1986) relies heavily on historical and precedential claims regarding the Due Process Clause. In 1982, a police officer entered the home of Michael Hardwick and found him having sex with another man. Hardwick’s conduct was illegal under a Georgia law prohibiting sodomy, which was defined as “any sexual act involving the sex organs of one person and the mouth or anus of another” (4). Although the district attorney decided not to prosecute, Hardwick filed a suit against Georgia’s attorney general, Michael Bowers, arguing that the anti-sodomy law was unconstitutional under the Due Process Clause of the Fourteenth Amendment. In a 5–4 decision, the Supreme Court rejected Hardwick’s claim. In the majority opinion, Justice White argued that no precedent had announced a right resembling that of the “claimed constitutional right of homosexuals to engage in acts of sodomy.” He, along with Justice Burger in a concurring opinion, indicated that proscriptions against sodomy have ancient roots in Judeo-Christian moral and ethical standards. In a more explicitly legal argument, they also suggested that anti-sodomy statutes were inherited from English common law and were thus enacted in colonial America. Their conception of fundamental rights is oddly similar to that discussed in later case Washington v. Glucksberg (1997), as it sought to consider any substantive due process claims by utilizing the framework of tradition and history as the precedent (5). In his dissent, Justice Stevens put forth a principle that would render itself crucial to future gay rights cases, arguing that “a policy of selective application must be supported by a neutral and legitimate interest—something more substantial than a habitual dislike for, or ignorance about, the disfavored group” (6). In the case of Bowers , for example, Justice Sandra Day O’Connor inquired whether there was a legitimate state interest in curtailing homosexual conduct as a means to reduce the spread of HIV/AIDS among gay men. In response, Harvard University Law Professor Laurence Tribe, on behalf of Hardwick, indicated that this was not Georgia’s stated interest. Furthermore, various amici curiae briefs submitted in the case argued instead that anti-sodomy statutes would be counterproductive in mitigating the spread of HIV/AIDS (7). With this in mind, it is clear that Justices Powell and Burger were correct: Georgia’s actual interest was seemingly the prevention of immoral conduct, and nothing more. As such, the Court has had to grapple with the question of whether a morality-based interest is sufficient to justify discrimination on the basis of sexual orientation. Although the Georgia sodomy statute was upheld in Bowers , the later Romer v. Evans (1996) case proved to be more of a success for gay rights advocates, as Justice Kennedy did not consider the morality interest to be sufficient to justify a statute against sodomy. This case arose as the state of Colorado passed a series of local ordinances that sought to ban discrimination in many sectors, including housing, employment, education, public accommodations, and health and welfare services.8 Notably, it contained a ban on discrimination on the basis of sexual orientation. This ban prompted Colorado voters to pass “Amendment 2,” which precluded future action designed to protect persons from discrimination based on their sexual orientation. In this case, the Court considered whether the state of Colorado provided a sufficient rational basis for singling out gays, lesbians, and bisexuals, which the state justified on the basis of respecting citizens’ freedom of association and, in particular, the liberty of landlords or employers who had personal or religious objections to homosexuality (9). Nonetheless, in his majority opinion, Justice Anthony Kennedy argued that such a rationale was too broad to allow for deference to the state, as it had no legitimate purpose or discrete objective (10). In contrast to Justice Kennedy, Justice Antonin Scalia argued that the morality rationale was sufficient and that the Court was undermining the majority will of Americans (11). Scalia contended that Kennedy’s notion of animus—or decision-making motivated solely by dislike for a particular group—is allowed in various arenas of life. He noted: “But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct” (12). Scalia’s equivalation of murder and cruelty to animals to homosexuality was likely reprehensible then, as is it now. However, it also points to a crucial misconception in this case: that landlords or other groups of people may be discriminating against queer people on the basis of their conduct . In the Court’s hearing of Romer , Scalia argued that if one criminalizes homosexual conduct [ Bowers ], then it follows that one can discriminate against homosexuals as well (13). What Scalia failed to understand, however, and what lead counsel and future Colorado Supreme Court Justice Jean Dubofsky pointed out on behalf of respondents, is that Romer was about both conduct and sexual orientation. A person may be perceived as gay (when they are not) by a landlord, for example, and then discriminated against. In this regard, Scalia’s analogy does not hold, as murder, polygamy, and cruelty to animals are all forms of conduct, while homophobia can be directed at people regardless of whether or not they actually engage in homosexual conduct. In this regard, Scalia’s conflation of conduct and sexual orientation renders his analogy regarding the possibility for morality-based animus less persuasive. Scalia’s second argument was that the Court is an insulated institution of justices that have graduated from elite law schools, and so it had no business pushing its morality onto the good people of Colorado in Romer (14). While Scalia’s notion may have been theoretically viable, he failed to consider how his conception operates in a greater historical context. For example, as Laurence Tribe, counsel to Michael Hardwick, argued in the Bowers hearing, the majority of people in Virginia did not think that interracial liaisons were moral at the time of Loving v. Virginia (1967) (15). If the Court had relied on Scalia’s majoritarian claim regarding gay rights, volmany generally agreed upon cases, such as Loving , would have been decided differently. Following Romer , the Court made several decisions in favor of the gay community, such as in Lawrence v. Texas (2003). Lawrence mirrored the Bowers case in many regards, as it involved a police intrusion into the home of two men, John Lawrence Jr. and Tyron Garner, who were purportedly having sex (16). It differed in two crucial dimensions. For one, the Texas statute in question was specifically directed at prohibiting homosexual sodomy, while the Georgia law in Bowers targeted sodomy in general. The second difference was that Lawrence’s counsel, Paul Smith, argued that the Texas statute violated both the Equal Protection and Due Process Clauses of the Constitution, not just the Due Process Clause (17). Justice Kennedy argued in the majority opinion of the Court that the Texas statute was a violation of substantive due process, and Justice Sandra Day O’Connor claimed that it also violated the Equal Protection Clause so its potential violation of the Due Process Clause need not be decided (18). Kennedy relied on two precedents in his jurisprudence in Lawrence : Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) for substantive due process and Romer v. Evans (1996) for equal protection (19). In Casey , the Court introduced a new substantive due process claim: dignity and respect for autonomy (20). As mentioned in regard to Romer , the Court started to level up its scrutiny for discrimination on the basis of sexual orientation; Colorado gave a rationale regarding freedom of association, but the majority found that this was not a sufficient basis for Amendment 2. In Lawrence , Kennedy quotes Justice Stevens’s dissent in Bowers, in which he claimed that “individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons” (21). Following this logic, Kennedy disagreed with the Bowers decision, and it was overruled by Lawrence . Analysis of Justice O’Connor’s concurrence in Lawrence indicates the potential legal consequences that could have arisen if Justice Kennedy had not drawn on precedents from both Casey and Romer . O’Connor argued that the fact that the Texas statute was only aimed at same-sex sodomy resulted in a violation of the Equal Protection Clause. Unlike Kennedy, O’Connor did not rely on Casey but rather the liberal precedent of Romer (22). In her rational basis analysis, she asserted that “moral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause” (23). O’Connor’s decision in Lawrence was therefore much narrower and more minimalist than Kennedy’s, as she implied that a sodomy statute would still be constitutional while a same-sex sodomy statute would not. If O’Connor’s minimalist stance had been adopted by the rest of the Court, however, it seems that very little change would have occurred. In The Most Activist Court in Supreme Court History , Thomas M. Kerk notes that O’Connor’s reasoning would have only rendered four states’ same-sex anti-sodomy statutes unconstitutional (24). States would have still been able to adopt anti-sodomy statutes in general, and in practice, these statutes would likely only have been applied in same-sex cases. Consequently, Kennedy’s use of legal reasoning from both Casey (substantive due process) and Romer (equal protection) was imperative to establishing a precedent in Lawrence that resulted in legitimate change for the privacy and dignity of same-sex couples (25). The Shift After Lawrence: The Legal Fight for Same-Sex Marriage Following Lawrence , change was certainly on the horizon for same-sex couples in the US, particularly with regard to marriage. Evan Gerstmann, Professor of Political Science at Loyola Marymount University, argues in Same-Sex Marriage and the Constitution that Lawrence paved the way for lower courts to overturn bans on same- sex marriage (26). In November 2003, the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Department of Public Health that the state’s ban on same-sex marriage lacked a rational basis. The state had provided justifications for the ban, including “providing a ‘favorable setting for procreation,’” ensuring an optimal setting for child-rearing, and preserving state resources. Still, the Court rejected all three claims, stating that “...the [Massachusetts same-sex] marriage ban does not meet the rational basis test for either due process or equal protection.” As a result, Massachusetts became the first state to legalize same-sex marriage (27). As more states began to allow same-sex marriage and the topic penetrated the national conversation, federal challenges concerning the definition of marriage reached the Supreme Court, such as in the 2013 case of United States v. Windsor . This case challenged the legality of the Defense of Marriage Act (DOMA), which Congress had enacted in 1996 (28). In Windsor , Thea Spyer and Edith Windsor had been in a committed relationship since 1963. In the 2000s, they were living in New York, which recognized same-sex marriage ordained elsewhere but would not legalize same-sex marriage itself for a few more years (29). As Spyer’s health deteriorated, the couple married in Ontario, Canada and then returned to New York. Upon her death, Spyer left Windsor all that she had. Although the couple had been married, Windsor was unable to claim a marital estate tax exemption due to Section 3 of the Defense of Marriage Act, which defined marriage as the “legal union between one man and one woman” (30). As a result, Windsor was required to pay $363,053 in estate taxes. For a heterosexual, federally sanctioned marriage, the entire estate tax would have been waived. When Windsor sought a refund, the Internal Revenue Service refused and claimed that Windsor was not a surviving spouse (31). Although Windsor had to first prove she had standing in the case, the central question in Windsor was whether or not the Defense of Marriage Act violated her right to equal protection under the Fifth Amendment (32). Indeed, the Court found that the federal government failed to provide a sufficient rationale for DOMA, but did not explicitly point to the level of scrutiny that it used to come to this conclusion. During the hearing of Windsor , Paul D. Clement, who represented the House of Representatives, implored the justices to adhere to the rational basis test. He also provided the apparent justification of the federal government for the act: uniformity of the definition of marriage across states. DOMA had been passed in 1996, just as same-sex marriage was starting to be considered at the state level. In Clement’s view, Congress at the time became concerned that same-sex couples would travel to other states to be legally wed and then return to a state in which their marriage was not valid and insist that it remained so (33). Nonetheless, reading from a 1996 House Report, Justice Kagan pointed out another potential legislative rationale for DOMA, which was that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality” (34). Clement then argued that the report’s revelation of the intentions of some legislators did not necessarily lead to a failure of the rational basis test (35). Moreover, in his dissent in Windsor , Justice Scalia emphasized the rationale of uniformity, as well as his decades-old notion (dating back to Romer ) that the Constitution does not forbid the government to enforce traditional moral and sexual norms (36). Traditionally, sexual orientation has been relegated to the sphere of rational basis tests— immediate scrutiny often includes sex or gender and heightened scrutiny is often in regard to race (37). The level of scrutiny utilized is crucial to the level of protection given to a select class. The rational basis test, or rational review, is generally used in cases where no fundamental rights are at stake. In Windsor , Scalia also slighted Kennedy and the rest of those in the majority for their unwillingness to announce that they were using anything more than a rational basis test in their conclusion—a critical shift in the jurisprudence of gay rights cases. Scalia berated the majority members for their leveling up of protection for sexual orientation, writing that: “The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality” (38). While the justices in the majority did not indicate that they were utilizing heightened scrutiny, it is notable that Justice Breyer pointed out in the Windsor hearing that for “rational basis-plus,” the rationale of uniformity might not be sufficient (39). Although flippant, this points to the possibility that the liberal justices were consciously raising the level of scrutiny for discrimination on the basis of sexual orientation. Scalia’s critique also points to a more serious concern for proponents of civil rights: erratic levels of scrutiny are not only the case for discrimination on the basis of sexual orientation, but now also for discrimination on the basis of race. Berkeley Law Professor Russell Robinson argued that the Court has decidedly leveled up some types of scrutiny, particularly for discrimination on the basis of sexual orientation, while it has lowered it for issues of race (40). Arkansas Law Professor Susannah Pollvogt took this a step further, arguing that Kennedy’s analysis regarding the discrimination ordinance in Romer (1996) is incompatible with his analysis in Schuette v. Coalition to Defend Affirmative Action (2014). In Schuette , Michigan voters had enacted a similar ordinance to that discussed in Romer which precluded future protections based on race, and Kennedy found that such an ordinance was constitutional (41). In this regard, it does seem that Scalia was correct: the justices that supported gay rights issues over the last 25 years had seemingly changed their level of scrutiny without announcing it. Although this may seem like a win to gay rights advocates, unconscious or unannounced changes regarding the Court’s level of scrutiny can have profound effects, particularly as the Court levels down its protections for race and gender. Windsor and Obergefell: A Resolution... Beyond the rational basis test, the Court was concerned about whether DOMA intruded on the principle of federalism and if the federal government could im- pose one uniform idea of marriage on the states (42). Justice Kennedy’s opinion in Windsor suggests that the decision in Obergefell v. Hodges may not resolve the concern with federalism. He indicates that in Windsor, federalism was of grave concern to the majority and that a future case that would establish same-sex marriage at a federal level could meet serious challenges from the Court. He wrote that state governments are delegated authority on the matter of marriage and divorce, quoting Haddock v. Haddock (1906) (43). In this regard, he asserted that “DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage” (44). In a 2014 article entitled “Federalism as a Way Station, Windsor as Exemplar of Doctrine in Motion,” Duke University Law Professor Neil S. Siegel acknowledged that the Court concocted their decision in Windsor to a certain degree (45). It is clear that imbued in the majority opinion was concern for federalism, equal protection, and substantive due process, but it is not as easy to discern where each concern lies or originates. In particular, Siegel noted the difference between Scalia and Roberts’ dissents. Roberts, for example, read the majority opinion as being concerned with federalism, although he himself thought that Windsor lacked standing (46). Scalia, by contrast, thought that the majority was more concerned with the malice directed at same-sex couples by the federal government, and, consequently, its intention to impose inequalities and restrictions on same-sex couples (47). Siegel argues that the Court resisted making a definitive judgment on either side and instead used the concept of federalism to push the country towards marriage equality. Thus, the rhetoric of federalism employed by Kennedy in the majority opinion, as well as the majority’s choice not to announce the level of scrutiny applied, may be used by the Court as a way station to a future resolution. Popularized by constitutional law scholar Alexander Bickel, this approach would seek to invite, as opposed to resolve, national conversation (48). Siegel’s interpretation may suggest that federalism was less of a concern to Kennedy and rather a means of rhetoric to push the Court in one direction. Obergefell v. Hodges itself also provides clearer guidance as to why the federalism notion in Windsor can be disregarded. In Obergefell , Justice Kennedy rooted his decision in the ever-changing due process jurisprudence, citing marriage as a fundamental right laid out in Griswold v. Connecticut (1965) and Loving v. Virginia (1967) (49). Nonetheless, the Court hesitated to enforce a federal definition of marriage onto the states. At the onset of the hearing, Justice Ruth Bader Ginsburg asked Mary Bonauto, counsel for Obergefell, how to square the Windsor case with Obergefell , a case in which “the Court stressed the government’s historic deference to the States when it comes to matters of domestic relations” (50). Although Bonauto agreed with Justice Ginsburg’s characterization of Windsor , she suggested that Obergefell differed in an important way: the Court’s failure to affirm the right to same-sex marriage would result in a violation of the Fourteenth Amendment. Conversely, in Windsor , the Court struck down a definition of marriage for the states because it prevented equal protection. The two cases are thus an inversion of one another in this regard, allowing Obergefell to overcome the federalism concern of Windsor . On a constitutional level, however, Obergefell intertwined the notions of the Equal Protection and Due Process Clauses in a manner akin to that of Lawrence . Indeed, Obergefell relied heavily on precedents from Lawrence, Romer , and Casey which were imperative for differentiating Justice Kennedy’s majority opinion from Justice O’Connor’s concurrence in Lawrence . A similar process seemingly occurred with Obergefell . NYU Law Professor of Law Kenji Yoshino argues that while the Court relied on both the Equal Protection and Due Process Clauses of the Fourteenth Amendment, it put greater faith in fundamental rights claims (51). In Loving , the equality and liberty claims were made in parallel to one another (52). In Obergefell , Justice Kennedy described them as interrelated and unable to be captured fully without one another. But just as O’Connor’s equal protection concurrence in Lawrence would have only resulted in the striking down of same-sex sodomy statutes, the enforcement of Obergefell may have been weaker had Kennedy not invoked the substantive due process claim in his decision. Theoretically, the Court’s use of both clauses should have prompted states to level up their protection for same-sex couples, as opposed to exiting the marriage licensing business altogether. As Yoshino notes, this was a concern in South Africa’s 2005 decision to legalize same-sex marriage, in which the Constitutional Court of South Africa warned against their “levelling down” of marriage licensing in the wake of the decision (53). Nonetheless, although the US Supreme Court attempted to use both the Equal Protection and Due Process Clauses in Obergefell to mitigate such practices, the enforcement of Obergefell was not necessarily easy. One prominent example concerned Kim Davis, a county clerk in Kentucky, who refused to grant a marriage certificate to a same-sex couple on the grounds of freedom of religion (54). Yoshino asserts that actors such as Kim Davis “violate a due process ruling in a way that would not violate an equal protection ruling” (55). Such a sentiment mirrors the potential outcome of O’Connor’s opinion in Lawrence —had her opinion been carried out, the decision would have been toothless. Indeed, the entire jurisprudence of the Court in the area of gay rights seems to have some sort of internal consistency. This raises the question: following Romer and Lawrence , was Obergefell predictable? Ron Kahn, James Monroe Professor of Politics and Law at Oberlin College, argues that Obergefell could have been predicted by commentators that recognized the Court’s combination of formalist and realist conceptions of gay rights (56). At first glance, the Rehnquist Court and Roberts Court jurisprudence on issues of sexual orientation is a bit surprising, as Kahn remarks: “... the Supreme Court has reaffirmed and expanded implied fundamental rights and equal protection under the law for gay men and lesbians during a period of political dominance by social conservatives, evangelical Christians, and other groups who view the protection of their definition of family values as a central mission of government” (57). Integral to Kahn’s conception of the Supreme Court over these decades is whether or not justices understand the bidirectionality between legal principles (a more formalistic conception) and the “lived lives of individuals” (a more realistic conception) (58). In Windsor , for example, Kahn asserts that Justice Kennedy engaged in a realist form of decision-making as he discussed the burdens that DOMA placed on same-sex couples with regard to their married and family lives.59 Kahn traces this bidirectionality from Lawrence to Obergefell , arguing that he was able to anticipate Obergefell insofar as the case was internally consistent with its precedents, and it relied on the bidirectionality of realism and formalism (60). Final Remarks It seems less likely that Kahn could have anticipated the later developments of the Court’s jurisprudence on gay rights issues, particularly with the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights (2018). In this case, Jack Philips, a Colorado baker and owner of Masterpiece Cakeshop, refused to create a wedding cake for a gay couple (61). Notably, this interaction occurred in 2012 before the Obergefell decision. Relying on the Free Exercise and Free Speech Clauses, the Court ruled in a 7–2 decision that the Colorado Civil Rights Commission’s decision in favor of the gay couple violated the First Amendment. Kahn’s framework does not seem to suit this case; indeed, if the Court had an understanding of the lived lives of gay people, and the discrimination that they face, it may have provided greater weight to the commission. Instead, the Court found that the Commission had “clear and impermissible hostility” toward Philips (62). In his majority opinion, Chief Justice Roberts asserted that the commission’s hostility revealed that Philips was not afforded the neutrality mandated by the Free Exercise Clause. Cases such as Masterpiece Cakeshop certainly cast doubt on the progress of gay rights advocacy. Regardless, gay rights advocates have achieved a series of victories over the last 35 years, from Romer in regard to discrimination ordinances, to Lawrence in regard to anti-sodomy statutes, to Windsor and Obergefell as the Court redefined marriage to include same-sex couples. Backlash, however, is still probable. Indeed, the Massachusetts Supreme Court’s decision in Goodrich in November of 2003 was likened to “an early Christmas gift to Republicans” prior to Massachusetts Senator John Kerry’s bid for the presidency in 2004 (63). Although Obergefell should have been anticipated, it certainly highlights the Court’s continued inability to state its level of scrutiny in regard to discrimination on the basis of sexual orientation, which lends itself to conservative critiques. Many commentators have also found it problematic that the Court has leveled up its protection for sexual orientation while it it has simultaneously leveled it down for race. Nonetheless, it is promising that the Court has provided greater civil rights for the gay community. The Court’s internal consistency should be kept in mind for proponents of gay equality—even if its jurisprudence has been correct. The future of civil rights litigation hinges on it. Endnotes 1 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See Justice White’s majority opinion. 2 Ibid. See Justice Stevens’ dissent. 3 Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). See Justice Kennedy’s opinion, in which he lists the aspects of life in which rights are conferred on married couples: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. 4 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). 5 Washington v. Glucksberg, 521 U.S. 702. (U.S. Supreme Court 1997). 6 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See Justice Stevens’ dissent. 7 Ibid. See oral argument. This line of questioning starts at 51:50. O’Connor states “Perhaps the state [of Georgia] can say its desire to deter the spread of a communicable disease or something of that sort,” to which Mr. Tribe replies. 8 Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). See Justice Kennedy’s opinion. 9 Ibid. 10 Ibid. 11 In Romer, Scalia argued that a ‘politically-powerful minority’ is acting against the majority will of Colorado: “the majority of citizens [is attempting] to preserve its view of sexual morality state wide against the efforts of a geographically concentrated and politically powerful minority to undermine it.” 12 Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). Opinion Announcement - May 20, 1996. 13 Ibid. See oral argument: 52:57-53:36. Scalia asks: “It seems to me the legitimacy of the one follows from the legitimacy of the other. If you can criminalize it, surely you can take that latter step, can’t you?... Doesn’t... if the one is constitutional, must not the other one be?” 14 Ibid. 15 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See oral argument: 35:41. Tribe states: “But, as this Court recognized in Loving against Virginia, where also a majority of the people of Virginia believed that interracial liaisons were inherently immoral and where for a long time a lot of people had believed that, this Court did not think that the Constitution’s mission was to freeze that historical vision into place.” 16 Dahlia Lithwick, “Extreme Makeover: The Story behind the Story of Lawrence v. Texas,” The New Yorker, Mar. 4, 2012, https://www.newyorker.com/magazine/2012/03/12/extreme-makeover-dahlia-lithwick. 17 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See oral argument: 1:48-2:10. 18 Ibid. See Justice O’Connor concurrence. 19 Ibid. See Kennedy opinion. 20 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (U.S. Supreme Court 1992). 21 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See Kennedy opinion. 22 Thomas M. Kerk, The Most Activist Court in Supreme Court History: The Road to Modern Judicial Conservatism (Chicago: The University of Chicago Press, 2004), 219. 23 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See Justice O’Connor concurrence. 24 Kerk, The Most Activist Court in Supreme Court History, 219. 25 Kenji Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges,” Harvard Law Review 129, no. 147 (2015): 173. 26 Evan Gerstmann, Same-Sex Marriage and the Constitution: We All Deserve The Freedom To Marry (Cambridge: Cambridge University Press, 2004), xii. 27 Ibid, xiii. 28 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 29 N. S. Siegel, “Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion,” Journal of Legal Analysis 6, no. 1 (2014): 89, https://doi.org/10.1093/jla/lau002. 30 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 31 Ibid. 32 In Hollingsworth v. Perry, 570 U.S. 693 (U.S. Supreme Court 2013), the petitioners were denied standing. This was certainly a concern for Windsor; Roberts’ opinion indicated that he would have denied standing here as well. 33 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). Oral argument: 1:06:05. Clement gives the example of Hawaii here, which had considered legalizing same- sex marriage around the time that DOMA was enacted. 34 Ibid. Oral argument: 1:14:16. 35 Ibid. Oral argument: 1:14:40. Clement’s rebuttal was that the improper motive of a few legislators does not mean that DOMA would necessarily fail the rational-basis test: “This Court, even when it’s to find more heightened scrutiny, the O’Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.” 36 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Scalia’s dissent. 37 Legal Information Institute at Cornell Law. “Strict Scrutiny. https://www.law.cornell. edu/wex/strict_scrutiny. 38 Ibid. See Scalia’s dissent. 39 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See oral argument: 1:17:41. 40 Russell K. Robinson, “Unequal Protection,” Stanford Law Review 68, no. 1 (2016): 151. 41 Susannah William Pollvogt, “Thought Experiment: What If Justice Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?,” SSRN Electronic Journal, 2014, https://doi.org/10.2139/ssrn.2436616. 42 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See oral argument: 1:16:09. Kennedy stated: “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.” 43 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 44 Ibid. 45 Siegel, “Federalism as a Way Station,” 87. 46 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Roberts’ dissent. 47 Siegel, “Federalism as a Way Station,” 90. 48 Ibid, 87. 49 Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). See Justice Kennedy’s majority opinion. 50 Ibid. See oral argument. Within seconds (0:52), Justice Ginsburg asked this question: “What do you do with the Windsor case where the court stressed the Federal government’s historic deference to States when it comes to matters of domestic relations?” 51 Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges ,” 148. 52 Ibid, 172. 53 Minister of Home Affairs v. Fourie, No. ZACC 19 (Constitutional Court of South Africa 2006). The Honorable Justice Albie Sachs of the Constitutional Court of South Africa: “Levelling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalisation; it calls for equality of the vineyard and not equality of the graveyard.” 54 Alan Blinder and Tamar Lewin, “Clerk in Kentucky Chooses Jail Over Deal on Same- Sex Marriage,” New York Times , Sept. 3, 2015, https://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html. 55 Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges ,” 173. 56 Ronald Kahn, “The Right to Same-Sex Marriage: Formalism, Realism, and Social Change in Lawrence (2003), Windsor (2013), & Obergefell (2015),” Maryland Law Review 75, no. 1 (2015): 271–311. 57 Ibid, 272. 58 Ibid, 275. 59 Ibid, 292. 60 Ibid, 302. “...specifically, Obergefell cannot be explained only on the basis of either formalist or realist elements.” 61 Noah Feldman and Kathleen M. Sullivan, Constitutional Law , Twentieth edition, University Casebook Series (St. Paul: Foundation Press, 2019). Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___, 138 (2018). 62 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (U.S. Supreme Court 2018). 63 Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (New York: Oxford University Press, Incorporated, 2012), 183. https://ebookcentral.proquest.com/lib/swarthmore/detail.action?pqorigsite=primo&docID=5746877#. Bibliography Blinder, Alan, and Tamar Lewin. “Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage.” New York Times , Sept. 3, 2015. https://www.ny-times.com/2015/09/04/us/kim-davis-same-sex- marriage.html. Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). Gerstmann, Evan. Same-Sex Marriage and the Constitution: We All Deserve The Freedom To Marry . Cambridge: Cambridge University Press, 2004. Feldman, Noah, and Kathleen M. Sullivan. Constitutional Law . Twentieth edition. University Casebook Series. St. Paul: Foundation Press, 2019. Hollingsworth v. Perry, 570 U.S. 693 (U.S. Supreme Court 2013). Kahn, Ronald. “The Right to Same-Sex Marriage: Formalism, Realism, and Social Change in Lawrence (2003), Windsor (2013), & Obergefell (2015).” Maryland Law Review 75, no. 1 (2015): 271–311. Kerk, Thomas M. The Most Activist Court in Supreme Court History: The Road to Modern Judicial Conservatism. Chicago: The University of Chicago Press, 2004. Klarman, Michael J. From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. Oxford: Oxford University Press, Incorporated, 2012. Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). Lithwick, Dahlia. “Extreme Makeover: The Story behind the Story of Lawrence v. Texas.” The New Yorker, Mar. 4, 2012. https://www.newyorker.com/ magazine/2012/03/12/extreme-makeover- dahlia-lithwick. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (U.S. Supreme Court 2018). Minister of Home Affairs v. Fourie, No. ZACC 19 (Constitutional Court of South Africa 2006). Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (U.S. Supreme Court 1992). Pollvogt, Susannah William. “Thought Experiment: What If Justice Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?” SSRN Electronic Journal , 2014. https://doi.org/10.2139/ssrn.2436616. Robinson, Russell K. “Unequal Protection.” Stanford Law Review 68, no. 1 (2016): 151–233. Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). Siegel, N. S. “Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion.” Journal of Legal Analysis 6, no. 1 (2014): 87–150. https://doi. org/10.1093/jla/lau002. Legal Information Institute at Cornell Law. “Strict Scrutiny. https://www.law.cornell.edu/wex/strict_scrutiny. United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). Washington v. Glucksberg, 521 U.S. 702. (U.S. Supreme Court 1997). Yoshino, Kenji. “A New Birth of Freedom?: Obergefell v. Hodges.” Harvard Law Review 129, no. 147 (2015): 147-179. Previous Next

Schedule F And The Future Of Civil Service Protections Sasha Bonkowsky Abstract Civil service protections in the United States, such as merit-based hiring, employee tenure, and the dismissal appeal , have come under attack in recent years, most notably from former president Donald Trump’s proposed Schedule F that would strip those protections from many federal employees. Under Schedule F, thousands of federal positions would become political appointees who could be dismissed at-will. This paper examines the history and justifications for exempting positions from traditional civil-service protections, as well as the feasibility for Biden’s Office of Personnel Management to forestall Schedule F. I conclude that Schedule F would likely have negative effects on government performance and morale, but that the OPM may not be able to effectively prevent implementation of Schedule F in the event of Trump’s re-election. Throughout President Donald Trump’s administration, he frequently attacked the federal bureaucracy for what he saw as its inefficiency or refusal to enact his policies. He was elected on promises of “draining the swamp” in American government; after the 2016 election, he repeatedly attacked a supposed “deep state” of insider operatives within federal agencies and departments who were ideologically opposed to him and used their positions in the bureaucracy, from which it was hard to dismiss them, to hamstring and block his agenda. Where Trump had appointment power, such as with agency heads or other political appointees, he was quick to remove those he saw as disloyal. However, many of his attacks were limited to mere invective. In the vast American civil service comprising more than two million employees, only 4,000 of those are political appointees that the president can remove at will. And in comparison to other democracies like the UK, France, or Japan, which all have similar civil service systems,, the US actually has many more political appointees. The rest are career employees. Career civil servants are usually hired using a merit-based, competitive examination system, in which all prospective employees are given the same exam, and those meeting or exceeding a particular score are hired. Once in the federal bureaucracy—and after a probationary period of several months to a year—employees usually cannot be dismissed unless they are found to be significantly derelict in their duties, and they can appeal a firing to the Merit Systems Protection Board (MSPB), which can investigate and reinstate an employee if they have been unlawfully dismissed. There are certain exceptions to this process, known as Schedules A through E, but they are only used when the usual processes are deemed “impractical.” In October 2020, Trump signed Executive Order 13957, which would have significantly increased the number of political appointees. It created a new category of positions within the federal bureaucracy—known as Schedule F positions—that would be exempted from regular civil service hiring procedures. Instead of the examination process, the president would be able to handpick employees for positions that fell under Schedule F and dismiss them at will without worrying about an appeal to the MSPB, as the Government Accountability Office (GAO) found in its analysis of the order. President Biden repealed the executive order during his first days in office, writing that it “undermined the foundations of the civil service and its merit system principles.” But such an action is hardly permanent—after all, another future president could easily reissue the executive order. To avoid that, the Office of Personnel Management (OPM) issued a proposed rule in late 2023 that would prevent career employees from being excepted under Schedule F or a similar order. The proposed rule also stated that any employee who was reclassified as political appointee would still possess the same protections from being fired and could appeal any dismissal to the MSPB. However, it’s unclear if this proposal will take effect before the 2024 election and a possible transition of power. This paper first examines civil service protections and common exemptions—especially those for current political appointees—in more detail, before turning to the possible effects of Schedule F and attempts to block it. Data from the past 10 years of OPM rulemaking demonstrates that, on average, rules take about a year to be finalized, meaning that if this civil service rule follows the usual timeline, it may be too late to go fully into effect before a Republican president or Republican Congress could repeal it. Civil Service Exceptions The US civil service already allows certain positions to be excepted from the competitive service in five categories: Schedules A, B, C, D, and E. Typically, prospective civil service employees must take a general exam, from which the highest scorers (and those with veteran’s preference) can be selected for hiring. However, this process can be slow, and does not cover specialized knowledge that an agency might require. Positions excepted under one of these schedules can be hired without this usual examination process when it is determined that the exam would make it impractical to recruit adequate numbers of students from qualifying institutions, (under Schedule D), when urgency is required (under Schedule A), or when selecting for particular experience (under Schedule B), among others. Only one schedule deals with political appointments—Schedule C—and it functions most similarly to the proposed Schedule F. Schedule C allows excepted hiring for “positions which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials”. These are often positions like press secretaries for individual bureaus within agencies, White House liaisons, or confidential assistants to secretaries and undersecretaries. There are usually between 1,500 and 1,800 Schedule C appointments at any given time, with 1,725 at the end of the first Bush administration, 1,538 at the end of the Obama administration, and 1,566 at the end of the Trump administration. These political appointments within the civil service didn’t always exist, and like the present-day Schedule F, Schedule C was the subject of significant controversy when it was first carved out in 1956 under the Eisenhower administration. One Democratic senator decried Schedule C as “an attempt to turn the civil service into a Republican grab bag” on the Senate floor, and the Democratic Party platform of 1956 stated that the Eisenhower administration’s policies “reflect prejudices and excessive partisanship to the detriment of employee morale”. The director of the Civil Service Commission defended them in the New York Times , writing that “the American people in 1952 expected your Administration to put into effect your announced policies…it is of the most vital importance that…policy-determining officials should be subject to change with any change in political administration”. Yet despite this public criticism, the Democratic-controlled Congress passed no legislation curtailing or ending Schedule C, and presidents of both parties have made use of Schedule C’s hiring authority. Several restrictions are placed on Schedule C positions and the ways in which they can be assigned. There are no “vacant” Schedule C positions which may be filled at will by the President—instead, any Schedule C positions must be approved by the director of OPM, and OPM’s authorization for those positions is automatically revoked when an employee leaves. Additionally, when requesting Schedule C exception, the head of the requesting agency must submit a statement to OPM that the position was not created in order to detail the employee to the White House—that is, assign them to work in the White House while still being paid by their original agency. This requirement was added after a 1990 GAO report found that Schedule C appointees were being inappropriately detailed to the White House rather than performing the specified duties of their positions. Though Schedule F and Schedule C may appear similar in their creation of low-level, politically appointed positions, the proposed Schedule F category would carve out much broader exceptions to the competitive service. Schedule C restricts its exceptions to appointments of a “confidential or policy-determining” character; Schedule F would allow exceptions to the competitive service for positions of a “confidential, policy-determining, policy-making, or policy -advocating character.” Policy-making or policy-advocating are much broader terms than merely policy-determining, and their definitions are statutorily vague, meaning they could be applied to a much greater number of employees. The executive order drew its legal basis from Section 7511 of Title 5 of the US Code, which excludes employees “of a confidential, policy-determining, policy-making or policy-advocating character” from competitive examination procedures and protection from dismissal. Determination of whether an employee’s job fits these requirements are made by the President and required to be authorized by the head of OPM. This exception, however, had never been put into practice before. The effects of Schedule F implementation are unclear. The executive order was issued in late October 2020, directing that agencies should submit a list of positions that would fall under Schedule F and their reasons for selecting those positions within 90 days (on January 19, 2021). Agencies were also directed to submit petitions to the Federal Labor Relations Authority to determine whether excepted positions under Schedule F would also be excluded from collective bargaining authorities. Few agencies—15 in total, out of over 400 federal agencies—submitted information to OPM, many claiming that they needed more time. Of those, just four agencies submitted names and lists of positions for conversion: the International Boundary and Water Commission proposed converting just 5 employees of its 234, the Environmental Protection Agency proposed 579 employees of its 11,000, the Federal Energy Regulatory Commission proposed 836 of its 1,166 employees, and the Office of Management and Budget (OMB) proposed 436 of its 527 employees. One issue is these agencies are not particularly representative of the bureaucracy as a whole—the IBWC and FERC are independent commissions, and OMB is deeply embedded in the White House—and so it remains unclear exactly how many employees would be affected by a future implementation of Schedule F. However, the authors of Schedule F have definite intentions for its use and assumptions of how many employees it might affect. The executive order was largely crafted and written by James Sherk, a member of the Domestic Policy Council focusing on labor policy. In 2017, he submitted a memo entitled “Proposed Labor Reforms,” in which he argued for the possibility that “Article II executive power gives the president inherent authority to dismiss any federal employee. This implies civil service legislation,as well as other protections for federal employees, (such as preventing their dismissal for joining a union) are unconstitutional. If so, the President could issue an Executive Order outlining a streamlined new process for dismissing federal employees”. Three years later, he would see that executive order realized in the creation of Schedule F. At a panel discussion for the National Academy of Public Administration (NAPA) in 2023, he continued to argue in favor of this proposition, saying that “every federal employee should serve at the pleasure of the president”. Given the limited data submitted by agencies, there’s no set number of employees Schedule F might affect. Experts, and Sherk himself, have estimated around 50,000, although Sherk noted the number as a low estimate., In the same NAPA seminar, he said that “I think there's ways you could broaden the scope of the order…I think you could expand it beyond 50,000. Say to like, 200,000. 300,000.” Former Trump administration officials have reportedly “saved lists of previous appointees…as well as career officers they viewed as uncooperative and would seek to fire based on an executive order to weaken civil service protections”, although such lists have not been made public. But having the ability to fire employees, or doing so, doesn’t necessarily mean the administration would be able to fill the positions. The Trump administration was slower than other administrations to nominate officials to key positions, other civil servants rated Trump appointees as less competent than previous Republican administrations or career civil servants, and the Trump administration faced difficulties finding even officials to fill top-level positions. While the Trump administration was able to authorize and fill about as many Schedule C positions as previous administrations, that doesn’t necessarily mean they would be able to fill Schedule F positions given the vastly larger number of them. Besides the numerical scope of its effects, Schedule F was also defended as necessary to improve the efficiency of the federal bureaucracy. The text of the executive order itself cited “long delays and substandard-quality work for important agency projects” as part of its rationale, and stated “agencies need the flexibility to expeditiously remove poorly performing employees”. Many stakeholders that GAO interviewed acknowledged that the speed of federal hiring should be improved, and that Schedule F would streamline that process; one also told GAO that “employees in Schedule F positions should be…more motivated to quickly and effectively implement the President’s policy agenda”. Criticism of a slow-moving and unresponsive bureaucracy, in which onerous hiring procedures and strict removal protections hamstring the agencies themselves, has been long-standing. Presidents and agencies alike have bipartisanly seen problems in the hiring process and sought to reform it: the US National Performance Review in 1993 wrote that “hiring is complex and rule-bound” in the civil service; a Bush-era report from the Merit Systems Protection Board wrote in favor of reform that would “provide agencies the flexibilities they need to effectively manage” and recommended that OPM should “speed the process” of federal hiring; and the Obama administration in turn issued guidance on simplifying and overhauling the civil service hiring process. The picture is little better in terms of firing underperforming employees: it’s long been understood that civil protections reduce the power of incentives, such that employees in government see little connection between performance and job security. But Schedule F seems unlikely to accomplish these reforms in a way that benefits government performance. Several of the stakeholders which GAO spoke to said that Schedule F could make recruitment of federal employees more difficult, as potential applicants might be leery of taking a Schedule F position if they believed they could be removed after a change in administration or for other political reasons. This is in line with the theory advanced by Gailmard and Patty, which states that civil servants are incentivized to build expertise when tenure provides them the stability to make such an investment. David Lewis writes in his book The Politics of Presidential Appointments, drawing on the example of the OPM in the 1980s and 1990s, that, while “politicization helped change policy,” it came at the expense of “long-term agency capacity and reputation…experienced career professionals left the agency and it was hard to replace them [or] recruit bright young people to work in the agency.” New meta-analysis of the meritocratic civil services on government performances found that associated practices such as tenure or merit-based hiring are broadly associated with stronger government performance and lower corruption. With an eye towards a potential future reissuing of the executive order, authors conclude that “converting career employees to Schedule F and removing their civil service protections is likely to degrade government performance”. Rulemaking To Prevent the Reinstatement of Schedule F The Biden administration and Democrats more broadly share similar concerns about Schedule F’s potential impact on the federal government were it to be reinstated by Trump or another future administration. Congressional Democrats have attempted multiple times to pass bills which would prevent Schedule F’s reinstatement or add amendments blocking Schedule F to must-pass defense appropriation bills. However, their efforts have been blocked by Republicans. Bypassing the legislative method, Biden’s OPM released on September 18, 2023, a proposed rule entitled “Upholding Civil Service Protections and Merit Systems Principles,” aimed as a regulatory method to prevent future administrations from reissuing Schedule F. The rule would: allow employees moved from the competitive service to the excepted service to retain their civil service protections unless the employee voluntarily relinquishes them. redefine “confidential, policy-determining, policy-making, or policy-advocating”—the language which Sherk and the Trump White House relied on to craft the executive order—to mean only non-career, political appointees. allow employees moved from the competitive service to the excepted service to appeal the move to the MSPB. This would, in essence, cut out the heart of Schedule F: removing its legal basis and specifying that converted employees retain tenure protections, such that converting their positions to the excepted service does not make them at-will employees. OPM draws its authority to make these changes from Chapter 75 of Title 5 of the United States Code, specifically 5 U.S. Code § 7514 and 5 U.S. Code § 7504, both sections which give OPM broad discretion to regulate civil service protections for federal employees. OPM also asserts its authority based on 5 U.S.C. 1103(a)(5) and 5 U.S.C. 1302 to make specific regulations about the procedures of moving employees between the competitive and excepted service, pointing out that OPM has repeatedly exercised that authority in the past (and indeed, regulated that movement in the implementation of Schedule F). The proposed rule closed its 60-day comment period on November 17, 2023, during which time it received 4,096 comments. With the strong support of the Biden administration and the leadership of OPM behind it, the rule is expected to move forward. However, the proposed rule has been the target of criticism by Republicans and people associated with the Trump 2024 campaign—which gives OPM a potential impending deadline. Almost certainly, if Trump wins the 2024 election and the rule is not finalized by his inauguration, he will direct the OPM to drop it; and even a finalized rule could be subject to overturning by a potential Republican Congress under the Congressional Review Act. The Congressional Review Act (CRA) is a tool that Congress can use to overturn federal regulatory actions, which was enacted as part of the Small Business Regulatory Enforcement Fairness Act in 1996. The CRA requires that agencies submit finalized rules to Congress and the GAO 60 legislative days before they take effect: if Congress passes a resolution of disapproval of the rule within that time period and the President signs it, or if Congress passes such a resolution over a presidential veto, then the rule cannot go into effect. Because of the threat (and exercise) of presidential veto power, rules have been overturned under the CRA only immediately following a change in presidential administration, in 2001, 2017, and 2021. However, the deadline for finalized rules to avoid CRA review by a potentially hostile Congress or President is not just 60 days before a new president could be inaugurated (that is, late November). Congress has 60 legislative days to consider rules—and if Congress adjourns sine die during that period, the 60-day period resets in its entirety beginning on the 15th day of the new legislative session, in what’s known as a “lookback” period. In 2017, that meant that the Republican Congress was able to disapprove of rules finalized as far back as May 2016. Thus, in order to be certain that it will go into effect, OPM must finalize its rule by mid-2024. But the question is if it will be able to do so by then. In the 2023 Fall Unified Agenda, published by the Office of Information and Regulatory Affairs (OIRA), OPM specified that it is targeting April 2024 for publication of a final rule. Based on historical precedent, this would provide the rule enough time to avoid reconsideration and potential disapproval from the next Congress. But OPM’s projected timeline may be overly optimistic, given its past timelines in publishing final rules. I collected data on finalized OPM rules between 2023 and 2013 in the Federal Register and examined how long it took between publication of the proposed rule and publication of the finalized rule. Since OPM’s proposed rule at hand of upholding civil-service protections has been defined as “significant” under Executive Order 12866 (likely due to its potential to “raise novel legal or policy issues arising out of legal mandates [or] the President’s priorities”), I restricted my search to only those rules which were similarly deemed significant, as they require a full review by OIRA that lengthens the rulemaking process. I also did not include OPM rules that were issued only as interim final rules rather than undergoing a full notice-and-comment period. The full list of all OPM rules meeting these criteria and their timelines can be found in Appendix A. Below are the summarized results: FIGURE 1: OPM RULEMAKING AVERAGE TIMELINE Notes: The timeline of OPM rulemaking is defined as the number of days between OPM’s publication of a proposed rule and the publication of a final rule. Several outlier rules took more than three years to be finalized. Data sourced from the Federal Register, 2013-2023. FIGURE 2. OPM RULEMAKING TIMELINE BY YEAR Notes: OPM published no significant final rules in 2017. Data sourced from the Federal Register 2013-2023. On average, it took 473 days between OPM issuing a proposed rule and OPM issuing a final rule. Even after eliminating the major outlier rule that took nearly 6 years to finalize, the data still suggests that it generally takes over a year to finalize a rule after it is proposed. Though the timeline varies slightly year by year, there is no clear pattern that would allow us to infer that the OPM of 2023-2024 finalizes rules significantly faster or slower than the OPM of, say, 2013-2014. If this timeline holds for OPM’s rule undercutting Schedule F, we can project that OPM will finalize the rule sometime in December 2024—too late to avoid a potential disapproval under the CRA. However, one case study of similar civil-service rulemaking demonstrates that potential CRA review is not the same as certain CRA review. On September 17, 2019, the OPM under Trump issued a proposed rule that would more strictly enforce the probationary period before employees were accepted to a competitive service position and sought to streamline civil service removal procedures. In many ways, this rule was a precursor to Schedule F, drawing on the same language and reasoning about an ineffective federal government that couldn’t remove underperforming employees. The rule was finalized on October 16, 2020, a timeline which would have allowed the 117th Congress under unified Democratic control to review and disapprove it. They didn’t. It’s not entirely clear why not: congressional disapproval of rules cannot be filibustered in the Senate, and 20 days after their proposal can be discharged for a floor vote by a minority of 30 Senators. More likely, the Democratic Congress preferred to let rollback occur through the agency processes: there were only three rule disapprovals in total in 2021 of Trump-era rules, but many more were overturned by agencies’ new leaders. But that process takes time, and so it was only in November 2022 when OPM finalized its rollback, meaning the Trump-era changes were in place for almost two full years of the Biden administration. The OPM’s proposed anti-Schedule F rule would likely follow a similar track. An OPM under Trump would certainly seek to undo it, even if the rule is successfully finalized and put into effect without disapproval—but as in the case above, it would likely take them months or years to do so. A rule undoing this one would also be open to legal challenges that an executive order would not be, and the Trump administration faced significant challenges in successful rulemaking. Previous administrations succeeded in roughly 70% of challenges to agency actions, while the Trump administration had a dismal 23% success rate in legal challenges due to bypassing procedural requirements, providing incomplete analyses of policy effects, or taking action which exceeded an agency’s statutory authority. Conclusion Whether or not OPM manages to finalize its rule and put it into effect successfully, the fight over the structure and protections of the civil service is unlikely to end in 2024 or beyond. In recent years, long-held civil service practices of non-politicization and tenure protections that were largely taken as established have come under increasing attack, largely from Republican officials and presidential candidates. In recent years, it’s the executive branch which has been most involved in determining the structure of federal civil service, from the Schedule F executive order to OPM’s proposed rulemaking, and attempts for similar legislation have been blocked or stalled out before making major progress, and research has largely focused on the president’s and agencies’ influence. But Congress has historically been the instrument of major changes to the civil service, from the Pendleton Act to the Civil Service Reform Act of 1978—and it’s only recently that Congress has ceded that power to the executive. While research such as this examining the direction, scope, and timing of executive influence over civil service is certainly beneficial given the political context, one potential direction for further research could be an examination of Congress’ role in civil service in the past, and what potential legislative actions would be beneficial in future. 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Moynihan, Don. “A Tangible Thing You Can Do Today to Fight Trump’s Takeover of the Federal Government.” Can We Still Govern? , 15 Nov. 2023, https://donmoynihan.substack.com/p/a-tangible-thing-you-can-do-today . Moynihan, Donald P. “Public Management for Populists: Trump’s Schedule F Executive Order and the Future of the Civil Service.” Public Administration Review , vol. 82, no. 1, 2022, pp. 174–78. Wiley Online Library , https://doi.org/10.1111/puar.13433 . MSPB. “Reforming Federal Hiring - Beyond Faster and Cheaper.” Office of Policy and Hiring , 2006. OIG. “Evaluation of the Department of State’s Use of Schedule B Hiring Authority.” OIG , 2018. OIRA. “View Rule: Upholding Civil Service Protections and Merit System Principles.” Reginfo.Gov , https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=3206-AO56 . Accessed 14 Dec. 2023. Oliveira, Eloy, et al. “What Does the Evidence Tell Us about Merit Principles and Government Performance?” Public Administration , vol. n/a, no. n/a, June 2023. Wiley Online Library , https://doi.org/10.1111/padm.12945 . OPM. “Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions.” Federal Register , 17 Sept. 2019, https://www.federalregister.gov/documents/2019/09/17/2019-19636/probation-on-initial-appointment-to-a-competitive-position-performance-based-reduction-in-grade-and . ---. “Upholding Civil Service Protections and Merit System Principles.” Federal Register , 18 Sept. 2023, https://www.federalregister.gov/documents/2023/09/18/2023-19806/upholding-civil-service-protections-and-merit-system-principles . Peters, Gerhard, and John Wooley. “1956 Democratic Party Platform.” The American Presidency Project , https://www.presidency.ucsb.edu/documents/1956-democratic-party-platform . Accessed 12 Dec. 2023. Rainey, Hal G. “Perceptions of Incentives in Business and Government: Implications for Civil Service Reform.” Public Administration Review , vol. 39, no. 5, 1979, pp. 440–48. JSTOR , https://doi.org/10.2307/3109918 . Rein, Lisa, et al. “Trump’s Historic Assault on the Civil Service Was Four Years in the Making.” Washington Post , 24 Oct. 2020. www.washingtonpost.com , https://www.washingtonpost.com/politics/trump-federal-civil-service/2020/10/23/02fbf05c-1549-11eb-ba42-ec6a580836ed_story.html . “SUPPLEMENTAL APPROPRIATIONS 1956.” CIA FOIA , 5 May 2010, https://www.cia.gov/readingroom/document/cia-rdp63t00245r000100180018-2 . Swan, Jonathan, et al. “Biden Administration Aims to Trump-Proof the Federal Work Force.” The New York Times , 15 Sept. 2023. NYTimes.com , https://www.nytimes.com/2023/09/15/us/politics/trump-biden-schedule-f.html . Swan, Jonathan, and Maggie Haberman. “Heritage Foundation Makes Plans to Staff Next G.O.P. Administration.” The New York Times , 20 Apr. 2023. NYTimes.com , https://www.nytimes.com/2023/04/20/us/politics/republican-president-2024-heritage-foundation.html . Thompson, James R. “Civil Service Reform Is Dead: Long Live Civil Service Reform.” Public Personnel Management , vol. 50, no. 4, Dec. 2021, pp. 584–609. SAGE Journals , https://doi.org/10.1177/0091026020982026 . Trump, Donald. “Executive Order on Creating Schedule F In The Excepted Service.” The White House , https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-creating-schedule-f-excepted-service/ . Accessed 13 Dec. 2023. Ungar, Bernard L. “Details of Schedule C Employees to the White House.” GAO , 1992. https://www.gao.gov/assets/t-ggd-92-28.pdf United States Government Policy and Supporting Positions (Plum Book), 2016 . U.S. Government Publishing Office, 1 Dec. 2016. DGPO , https://www.govinfo.gov/app/details/GPO-PLUMBOOK-2016 . United States Government Policy and Supporting Positions (Plum Book), 2020 . U.S. Government Publishing Office, 1 Dec. 2020. DGPO , https://www.govinfo.gov/app/details/GPO-PLUMBOOK-2020 . Wagner, Erich. “Schedule F Architects Say the Plan’s Critics Are ‘Hyperbolic.’” Government Executive , 29 June 2023, https://www.govexec.com/workforce/2023/06/schedule-f-architects-plans-critics-hyperbolic/388118/ . ---. “Year of the Living Dead: How Schedule F Continued to Threaten to Upend the Civil Service in 2022.” Government Executive , 28 Dec. 2022, https://www.govexec.com/workforce/2022/12/year-living-dead-how-schedule-f-continued-threaten-upend-civil-service-2020/381257/ . Young, Philip. “Civil Service and Eisenhower Texts.” The New York Times , 1 Oct. 1956, p. 14.

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Non-Self Through Time Anita Kukeli Author Hansae Lee Koda Li Nahye Lee Editors Buddhism, like other major religions, has a particular philosophical framework underpinning its teachings. In other words, Buddhism and other religions might be thought of as offering a set of answers to philosophical inquiries, such as questions about moral right and wrong or questions about our position in the universe. The area of philosophical inquiry with which this paper is concerned is the philosophy of self. What does it mean to be a person? Buddhism engages with this debate. Foundational Buddhist thought, or Theravada Buddhism, offers a particular conception of personhood called anatman , or “non-self.” The idea here is that the commonly accepted notion of the self if mistaken; we are not selves. Ordinarily, pre-philosophical reflection on the question of what a person is, one might likely respond that a person it a unified individual entity, such as you or me. Philosophical views depart from this common concept to varying degrees. Some define a person as a human body, comprised of cells and ultimately governed by biological processes. Alternatively, perhaps a person is a mind, constituted most fundamentally by their beliefs and feelings and decisions. Maybe personhood is some mix of the two, or something else entirely. In contrast, the Buddhist conception of personhood rejects the notion of the self as a definable single entity entirely. At first glance, this may seem unacceptable to someone unfamiliar with Buddhist teachings. However, by reproducing the arguments presented in early Buddhist texts, I will show that anatman is on its own a plausible view. I will argue that the real trouble for anatman arises when considered within the broader tradition of Buddhist thought, especially in regard to samsara and karma . Samsara refers to the Buddhist idea of a cycle of rebirth, closely related to karma. Both samsara and karma involve the self persisting from one lifetime to the next. But, if there is no self, how can it persist? Surely, for something to persist through time, that thing must exist. So, it seems that if we accept anatman , and there is no such thing as a self, then we cannot accept samsara or karma. To resolve this tension, there must be a description of this persistence through time that does not require the existence of a self. I will argue that the Buddhist concept of dependent arising accomplishes this, and therefore resolves the tension between anatman on the one hand and samsara and karma on the other. Anatman The argument for anatman derives from the concept of the five aggregates. This is a Buddhist concept that refers to five constitutive parts of a person. The five aggregates are translated various ways, but for the purposes of this paper I will offer them in simple terms. The five aggregates consist of 1) material form, 2) sensation, 3) perception, 4) volitional force, and 5) consciousness. A foundational Buddhist text, the Questions of King Milinda, includes a conversation in which a Buddhist monk named Nagasena purports that the self does not exist. His interlocutor, King Milinda, then asks, what is it that the name Nagesna is denoting? Does it refer to material form? To sensation? He continues through each of the five aggregates, and Nagasena responds that it is none of these (Milinda’s Questions 36). To explain how that may be, he uses an analogy of a chariot. A chariot is not its wheels nor its axle nor its pole, though it is also not an entity separate from these things (37). In this case, the whole is not greater than the sum of its parts. Therefore, the chariot, as an entity, doesn’t exist. Rather, “chariot” is merely a term used to denote a collection of things and nothing more. Similarly, Nagasena’s name is just a useful term referring to the collection of constitutive parts called aggregates, but not to an individual self (34). The self cannot be reduced to any one of the five aggregates, and it is also not an entity separate from them. Indeed, when understood in this way, the self simply doesn’t exist. Samsara Samsara , or the cycle of rebirth, is another foundational Buddhist concept. It posits that when someone dies, they are reborn. This means that each of us have past lives that we don’t remember, from which we died and were reborn. So, we persist through one lifetime into the next. This notion of samsara is closely related to the Buddhist concept of karma , which ascribes a desert component to this cycle. Karma drives the rebirth cycle by attributing the quality of the life into which a person is reborn to the actions of their past lives. If someone commited immoral acts in their past lives, they would face the consequences by being reborn into a hellish miserable life. Conversely, if someone committed good acts, they would be reborn into a happy beautiful life (Sayings 203). This causal explanation between the actions someone undertook in their past lives and circumstances of their current life is what’s referred to as karma . In foundational Buddhist thought, Karma governs the persistence within a person from one lifetime to the next, and thus is related to samsara . The concepts of saṃsāra and karma , hand in hand, appear to be incompatible with anātman . If we grant that no person can point to any of the five aggregates and claim — “That is me!” — but, at the same time, a person is nothing more than those aggregates, we can accept the claim that the self does not exist. That is the structure of the argument presented above by Nagasena. However, accepting that the life a person is living right now is a consequence of a life they lived in the past requires that that person is persisting over time. That is, if we are to correctly say that Anita, for instance, deserves the poor quality of her life because she undertook immoral actions in her past lives, it must be that the Anita experiencing this poor-quality life is the same Anita who undertook those immoral actions. Otherwise, the immoral actions of the past lives couldn’t be attributed to the person who is living the consequentially poor-quality life. So, karma and saṃsāra require persistence. However, if the self doesn’t even exist, surely it cannot have the quality of persisting over time. Persistence necessitates existence. This is the tension that arises with the consideration of anātman in conjunction with saṃsāra ; it seems we cannot accept one without rejecting the other — unless, that is, we have an account of non-self that involves persistence through time. Dependent Arising The concept of non-self can extend through the dimension of time with the inclusion of dependent arising. In another early Buddhist text, the Buddha delineates a series of causal chains. He says, “Conditioned by ignorance there are volitional forces, conditioned by volitional forces there is consciousness, conditioned by consciousness there is mind-and-body, conditioned by mind-and-body there are the six senses…” until he arrives at suffering (Sayings 210-211). This causal chain is called dependent arising. Within this series of states, each caused by an earlier one and causing the next, we find the five aggregates: between volitional forces, consciousness, and mind-and-body. So, the five aggregates we refer to when we speak of the self are themselves just parts within a system that extends beyond them. In this way, the non-self is positioned within a greater system of causal chains. If this understanding is applied to the earlier concepts of saṃsāra and karma , the tension between them and anātman may be resolved. Initially, the idea that there is a cycle of death and rebirth called saṃsāra seems to presuppose the existence of a self, particularly as an individual entity that persists through time. Moreover, the proposition, known as karma , that the conditions of one’s present life are a consequence of past lives ascribes continuity within a self as it undergoes multiple life cycles. It seems to follow from this that one’s past actions result in one’s current experiences, meaning that the person who commits the actions must be the same person who has the current experiences. So, there must be a self that persists. But, if the cycle of rebirth driven by karma is reconsidered through a lens of dependent arising, there is no need to account for the existence of an individual entity called a self. It need not be the case that there is a self who at one point both committed certain actions and is now experiencing the effects. There need not be an individual entity to which these actions are attributed. Rather, there can be certain actions committed and resultant effects being experienced. Indeed, the constitutive parts of a person, the five aggregates, are nothing more than steps within a greater causal chain. By accepting dependent arising, we can understand what was once necessarily the persistence of the self through time as, instead, a causal relationship and no more. Earlier states bring about later states. There is no self. Conclusion By including an account of non-self over time, such as dependent arising, the tensions between saṃsāra and anātman are resolved. The argument for anātman in a given moment, what I’ve referred to as static non-self, derives from the five aggregates. As expressed in the chariot analogy, a person is not any one of the five aggregates and a person is not anything more than them. Therefore, the existence of a unified self is a mere illusion. This is an important claim within Buddhist thought because it is included in a foundational teaching: that clinging to the self is the cause of suffering. This might be enough to motivate letting go of the idea of the self, for the purpose of ending suffering. However, the idea that clinging to the self causes suffering isn’t enough to justify the plausibility of non-self. It must also be consistent with other teachings in Buddhism. Initially, it seems to be incompatible with the teachings of saṃsāra and karma . These teachings seem to necessitate a self that persists through time, because surely it must be the same person who lives through the multiple lives involved in a particular cycle of rebirth driven by their own karma . But, if the self doesn’t exist even for a given moment, how can it exist from one moment to the next? Indeed, it doesn’t. This can be explained through the concept of dependent arising, a dynamic picture of non-self. Through this lens, the five aggregates are placed in a causal chain of events. This way, there can be causal continuity within a person's life — or lives — without there necessarily being a self. Past events cause later events, and so goes the cycle of rebirth. Finally, there is no incompatibility between anatman and the rest of Buddhist teaching, and it can be justifiably accepted as a plausible account. In this manner, dependent arising resolves the tension initially faced between anatman and saṃsāra . References Gethin, Rupert. 2008. Sayings of the Buddha : a selection of suttas from the Pali Nikayas, Oxford world's classics. Oxford ; New York: Oxford University Press. Gethin, Rupert. 1998. The Foundations of Buddhism. Oxford [England] ; New York: Oxford University Press.

*Feature* Nicola Sturgeon Nicola Sturgeon is the fifth and current First Minister of Scotland and leader of the Scottish National Party (SNP). She is the first woman to hold either position and has been a member of the Scottish Parliament since 1999. She advocated that Britain remain in the European Union and has called for Scotland's place in the European single market to be protected. Sturgeon is notable as a campaigner for women's rights and gender equality. Sturgeon’s piece reflects on the merits of experimenting with a Universal Basic Income Fall 2018 Too many people in Scotland are being failed by the UK Government’s social security and employment support systems and we have seen rising poverty levels in recent years. Finding employment is sadly no longer the protection against poverty it once was, with in-work poverty now at an all-time high and the majority of adults and children in relative poverty living in households where someone is in paid work. Likewise, income and wealth inequality in Scotland and the UK, although it has been relatively stable for the last 20 years, has shown no sign of reducing. While there is no quick fix for wealth inequality, there are steps that governments can and should take to close the gap between the richest and poorest in society. We know sustainable and fair work is a long-term route out of poverty so we, and other administrations, must be committed to creating opportunities that support this. In Scotland, we have stressed the importance of promoting inclusive growth – growth which everyone has a fair chance to contribute to, and from which everyone in society can benefit. There are moral, economic and political reasons to support this. Our Economic Strategy focuses on the two mutually supportive goals of increasing competitiveness and tackling inequality. There are a wide range of factors that cause income inequality and these must all be addressed to effectively tackle the issue. In Scotland we have committed to reduce the gender pay gap and increase the labour market participation rates for disabled people and those from minority ethnic groups. New UK legislation which requires large listed companies to publish the pay ratios between their chief executive and their average worker, as well as their gender pay gap, will help maintain focus on such inequalities. While this is a step in the right direction, we would like this legislation to go further and require companies to publish what actions they will take to address such pay gaps. Both governments and businesses also need to address structures and cultures in workplaces that can perpetuate income inequality. Changing the perception of ‘valued’ jobs is one step to reducing such inequalities. For example caring jobs such as social care and childcare tend to be lower paid and undertaken in the main by women. It is argued that that the undervaluing of skills required to undertake caring jobs contributes to the low pay which characterises these and other low paid sectors. We are using the Living Wage Scotland initiative to highlight the value of workers in low paid sectors and encourage more employers to become Accredited Living Wage employers. In addition to taking steps to reduce income inequality, we also want to deliver a new Scottish social security system with dignity, fairness and respect at its centre to better meet the needs of the people of Scotland. We are already taking steps to improve the benefits being devolved to Scotland by increasing carer’s allowance, introducing the Best Start Grant for parents and carers on low incomes to help at key stages of children’s lives and transforming the disability assessment process. As well as the existing historic factors that can lead to wealth inequality, advances in technology and increasing automation of services means the world of work is constantly changing. That is why innovative ideas to tackle these new challenges should be debated by both current and future leaders. One such radical approach to social security which has gained attention recently is the idea of a universal basic income (UBI) – a universal, non-taxable, non-means tested payment made to all citizens from cradle to grave. It is paid regardless of past national insurance contributions, income, wealth or marital status. While a simple concept in principle, its implementation is highly complex. One of the main complexities of UBI is determining the level at which it is set – ranging from a minimum payment to prevent destitution to a higher level which on its own gives individuals an adequate but basic standard of living. It is usually assumed that UBI replaces all other social security payments and this is reflected in one of the most profound concerns around UBI – the impact it could have on people in poverty and people facing additional costs in their day to day life. As a universal benefit, it removes the stigma of ‘being on benefits’. That can only be good for society but there are concerns about whether governments will be able to afford both UBI and a generous welfare state. In Scotland, we already provide many universal benefits such as free school meals, personal care, prescriptions, eye tests and university tuition and the respective role of UBI and these benefits would have to be considered. Supporters of UBI suggest it provides a greater incentive for those out of work to take up employment and can encourage people to be more entrepreneurial as they already have a basic income to support them. Most models of UBI suggest that anything over the UBI value is taxed at a single rate. However, this does not align with our more progressive approach to income tax in Scotland where those who can afford to pay more will make a higher contribution through increasing tax rates to support better public services. The Scottish Government is supporting four local areas to carry out further scoping of the idea in Scotland. These pilots will help inform our thinking around the future of UBI in Scotland and I look forward to seeing the results. We want Scotland to be prosperous and reducing inequality is a key part of this. We believe we should tackle poverty and wealth disparities by sharing opportunities, wealth and power more equally.

Partisan Gerrymandering: Re-Establishing the Political Question Doctrine in Gill v. Whitford Partisan Gerrymandering Re-Establishing the Political Question Doctrine in Gill v. Whitford Connor Maag UCLA School of Law Author Filippo Zinni William Gomberg Harry Xie Editors Spring 2019 Download full text PDF (24 pages) Abstract American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape. In Gill v. Whitford , the Wisconsin Elections Commission asked the Supreme Court to overturn a divided three-judge district court decision striking down a Wisconsin voter redistricting plan as an unconstitutional partisan gerrymander. But the court has yet to clearly define the constitutional boundaries of partisan gerrymandering, having provided contradictory holdings and reasoning for decades. In its June 2018 decision, the court held that the plaintiffs lacked standing to sue, but never reached the merits of partisan gerrymandering, leaving the justiciability of that issue unresolved. This paper finds that partisan gerrymandering is correctly viewed as a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyperpartisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should guide the Justices’ own moral compass towards the political question doctrine. American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape.[1] The Wisconsin Elections Commission petitioned the Supreme Court to overturn a divided three-judge district court decision striking down a voter redistricting plan for the Wisconsin state assembly as an unconstitutional partisan gerrymander.[2] However, the Supreme Court has not clearly defined the constitutional boundaries of partisan gerrymandering. In Gill v. Whitford in 2018, the Supreme Court held that the plaintiffs lacked standing—that is, the ability to even bring the lawsuit in court.[3] The court did not decide the merits of the case, and the court made the unusual decision to remand the case back to the district court to afford the plaintiffs an opportunity to properly bring their claim and litigate its merits in the future.[4] Notably, the court did not decide whether partisan gerrymandering is justiciable, leaving the issue unresolved.[5] This piece analyzes the judicial process of deciding the politically-charged Gill v. Whitford case, a decision which will inevitably shift the balance of the nation’s political power towards either the Republican or Democratic party. “Gerrymandering” is a pejorative term, referring to “the dividing of a state, county, etc., into election districts so as to give one political party a majority in many districts while concentrating the voting strength of the other party into as few districts as possible.”[6] It comes from former Massachusetts Governor Elbridge Gerry, who, in 1812, designed convoluted voting districts resembling the shape of a salamander.[7] More than two hundred years later, gerrymandering continues in Wisconsin and throughout the nation.[8] However, the judiciary is not the appropriate forum to address partisan gerrymandering grievances. This piece argues that the plaintiff’s partisan gerrymandering claims in Gill v. Whitford presents a non-justiciable political question, due to a lack of judicially-manageable standards for resolving the claim, the proper role of the judiciary within the government, and judicial hyper-partisanship that renders adjudication on the merits inappropriate. Part I of this piece provides background on the Gill v. Whitford case. Part II outlines the law of partisan gerrymandering leading up to Gill, demonstrating that the time was ripe for clarification from the court. Part III explains why the partisan gerrymandering claim in Gill presents a non-justiciable political question. Part IV considers alternative resolutions on the merits of First and Fourteenth Amendment claims, but finds that they inevitably circle back to the rationale for invoking the political question doctrine in the first place. Finally, Part V explores whether judicial ethics provide any useful guidance for the court, finding persuasive support for invoking the political question doctrine. I. Gill v. Whitford In Gill v. Whitford , a group of Democratic voters sued members of the Wisconsin Elections Commission, claiming that invidious and “aggressive partisan gerrymandering” violates their Fourteenth and First Amendment rights.[9] The Fourteenth Amendment claim alleges that Wisconsin’s redistricting “purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.”[10] The argument is supported by seemingly irreconcilable statistics of voters’ current partisan allegiances and the corresponding election results. Specifically, Republicans received 48.6 percent of the two-party statewide vote in 2012 but won 61 percent of the assembly seats; they also received 53 percent of the statewide vote in 2014 but won 64 percent of the assembly seats.[11] Plaintiffs believe a new mathematical test called the “efficiency gap” provides a judicially-manageable standard for the court to determine unconstitutional partisan gerrymandering by measuring the proportion of votes “wasted” by gerrymandering.[12] The First Amendment claim further alleges these wasted votes suffocate voters’ freedom of association with the political party of their choosing, as well as the freedom of expression for their political views.[13] The Western District of Wisconsin agreed with the plaintiffs, holding that partisan gerrymandering was unconstitutional.[14] The Wisconsin Elections Commission then appealed, but the Supreme Court vacated the district court’s decision and remanded it, “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence...that would tend to demonstrate a burden on their individual votes.” The court’s determination and adjudication of partisan gerrymandering claims significantly impacts the American political landscape.[15] Partisan gerrymandering is a widespread issue not limited to Wisconsin,[16] and a Supreme Court decision striking down electoral maps for partisan gerrymandering can open the floodgates for challenges to district maps across the country.[17] Make no mistake, “Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”[18] II. The Time Remains Ripe for the Supreme Court to Clarify Whether Partisan Gerrymandering is Justiciable For decades, American jurisprudence has debated whether gerrymandering involves a “non-justiciable political question”––which is, broadly, an issue inappropriate for resolution in the judiciary.[19] Currently there is no clear answer, even after the Supreme Court’s 2018 decision in Gill. The political question doctrine can be traced as far back as 1803 in Marbury v. Madison ,[20] but the modern doctrine has its roots in the 1960s, when gerrymandering claims fought against discrimination and racial redistricting. In 1962, Baker v. Carr held that racial gerrymandering claims are justiciable, reasoning that “if ‘discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.’”[21] However, Gill v. Whitford is about partisan gerrymandering rather than racial gerrymandering, a concept first alluded to in Gaffney v. Cummings (1973). Gaffney suggested that political gerrymandering might be unconstitutional if it correlates strongly enough to racial demographics as to constitute racial discrimination.[22] The court reasoned that: What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment...For example, multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.[23] The court still limited its reasoning to racial discrimination though, noting the “impossible task of extirpating politics from what are the essentially political processes of the sovereign States.”[24] In 1986, the court directly addressed partisan gerrymandering for the first time in Davis v. Bandemer. A plurality held that “political gerrymandering cases are properly justiciable under the Equal Protection Clause.”[25] The court generally analogized the rationale prohibiting racial gerrymandering to political gerrymandering, explaining “that the claim is submitted by a political group, rather than a racial group, does not distinguish it in terms of justiciability. That the characteristics of the complaining group are not immutable or that the group has not been subject to the same historical stigma…[does] not justify a refusal to entertain such a case.”[26] Dissenting, Justice O’Connor instead felt that “members of the Democratic and Republican Parties cannot claim that they are a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the court has offered no reason to believe that they are incapable of fending for themselves through the political process.”[27] In 2004, the court changed course when a plurality held political gerrymandering is a non-justiciable political question in Vieth v. Jubelirer . The court reasoned that “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged (since Davis). Lacking them, we must conclude that political gerrymandering claims are non-justiciable and that Davis was wrongly decided.”[28] But this justiciability holding failed to achieve majority agreement.[29] In 2006, the court failed to clarify the conflicting Davis and Vieth pluralities. Then, in League of United Latin Am. Citizens v. Perry (2006), the court merely noted that “disagreement persists” as to whether political gerrymandering is justiciable and analyzed the merits because justiciability was not disputed by the parties.[30] The court held that “[they] do not revisit the justiciability holding but do proceed to examine whether appellants’ claims offer the court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.”[31] The court reasoned that partisan gerrymandering was inconsistent with both the Fourteenth Amendment’s prohibition against invidious discrimination and the First Amendment’s protection from retaliation based on political affiliation.[32] Ostensibly, League of United Latin Am. Citizens (LULAC) left Davis intact, but only because the parties did not dispute justiciability. The Davis and Vieth pluralities provide conflicting answers for whether partisan gerrymandering is justiciable. The Supreme Court’s considerable efforts in Gaffney, Bandemer, Vieth, and LULAC do not resolve whether such claims may be brought in cases involving allegations of partisan gerrymandering.[33] Gill thus presented the court with an opportunity to finally clarify the irreconcilable case law, but it remanded the case back to the district court on standing grounds before it could reach the merits.[34] Currently, the justiciability of partisan gerrymandering claims remains unclear. III. The Political Question Doctrine Must Apply to Partisan Gerrymandering Claims As a threshold issue in any partisan gerrymandering claim, the court must decide whether partisan gerrymandering is a non-justiciable political question before it proceeds with the rest of the case. The contours of the political question doctrine are poorly defined,[35] but the Supreme Court has explained that “sometimes...the law is that the judicial department has no business entertaining [a] claim...[where] the question is entrusted to one of the political branches or involves no judicially enforceable rights...Such questions are said to be ‘nonjusticiable,’ or ‘political questions.’”[36] The court has outlined six non-exhaustive, independent factors to identify such non-justiciable political questions: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. The doctrine is rooted in both “constitutional and prudential considerations,”[37] as well as “respect for the separation of powers, including the ‘proper—and properly limited—role of the courts in a democratic society.’”[38] Case law has also proscribed a nuanced distinction between non-justiciable political questions and cases with political ramifications, the latter of which remains justiciable.[39] As an initial matter, most cases are not decided by political ideology, but as a matter of law. Justices of different ideologies routinely agree with each other irrespective of political agenda. But this paper explores the “5 percent of cases that are truly difficult,”[40] rather than the 95 percent of run-of-the-mill decisions. Gerrymandering claims are often among those difficult cases because they necessarily involve issues that impact the balance of partisan power in the legislature. It has been said that for federal judges, “political elections are the devil’s domain,” and the court should remain cautious when deciding partisan gerrymandering claims.[41] The court should have held in Gill—or should hold in the future—that partisan gerrymandering is a non-justiciable political question due to (1) a lack of judicially-manageable standards for resolving the claim, (2) the proper role of the judiciary within the government, and (3) judicial hyperpartisanship that renders adjudication on the merits inappropriate. A. Partisan Gerrymandering Claims Lack Judicially-Manageable Standards The partisan gerrymandering claim in Gill presents a non-justiciable political question because the claim satisfies Baker’s second factor of “a lack of judicially discoverable and manageable standards for resolving it,”[42] and because there are “no judicially enforceable rights.”[43] First, the proposed “efficiency gap” solution is not a judicially-manageable standard. It fails to clearly identify the impact of partisan gerrymandering and is a rough approximation at best—Chief Justice Roberts calls it “sociological gobbledygook.”[44] Most notably, it fails to distinguish between so-called wasted votes caused by gerrymandering and natural causes.[45] For example, geography is a major cause of wasted votes.[46] Many urban districts overwhelmingly vote Democrat, causing wasted votes that are not the result of partisan gerrymandering.[47] Another problem is that “the efficiency gap is very noisy. It can shift back and forth from cycle to cycle” because voters can simply change their minds and side with a different political party.[48] In Gill, Judge Greisbach’s district court dissent pointed out that efficiency gaps measure “change every election based on a number of factors, including the issues raised, quality of local candidates, [waves], turnout, and other natural phenomena such as shifts in demographics.”[49] It is not hard to imagine a scenario in which voters’ partisan preferences change day-to-day if, say, a candidate receives negative publicity. Such a district might then fail the efficiency gap test because of that publicity, not the map. Second, the claim in Gill does not involve judicially-enforceable rights. Plaintiff-Appellees claim violations of the First and Fourteenth Amendments, which guarantee the rights of an individual, but the district court incorrectly focused on injuries to the Democratic Party as a group.[50] The Supreme Court correctly explained that “the associational harm of a partisan gerrymander is distinct from vote dilution.”[51] In one amicus brief, several states[52] pointed out that “the district court’s reliance on vote-dilution cases fundamentally misunderstands the difference between those claims regarding individual rights versus the novel group-based right recognized here.”[53] Justice Burger also pointed out in Davis that those who believe partisan gerrymandering is justiciable improperly “focus...not on access to the political process as a whole, but entirely on statewide electoral success...[and] whether the complaining political party could be expected to regain control of the state legislature.”[54] Many commentators and amici seem to transparently view Gill as a tool for political ends, even advocating to erode Republican power and “regain” Democratic control.[55] The logic has drifted quite far from claims about individual rights. The district court committed a logical leap from protecting individual rights to granting the Democratic party rights as a group and as a result, allowed for judicial manipulation of the balance of political power in the Wisconsin state legislature. On the other hand, the district court, Plaintiff-Appellees, and some commentators agree that judicially-manageable standards exist. The “efficiency gap” at least provides some sort of metric for courts to apply,[56] unlike previous partisan gerrymandering cases. This test also reduces the analysis to a narrow set of analytical factors, which courts should be able to handle.[57]And big-data computing can provide cutting-edge measurements that did not exist when Vieth suggested that partisan gerrymandering claims lack judicially-manageable standards.[58] Other commentators believe there are numerous alternatives that are also judicially-manageable.[59] Although the “efficiency gap” is better than any other test to date, its flaws still render it insufficient. Even if the measurement is considered reliable, the logical solution to eliminate “wasted votes” is a political system of proportional representation.[60] But the court held there is no constitutional requirement for proportional representation, and “equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best.”[61] In Davis, the court held that a lack of proportional representation is not enough to prove unconstitutional discrimination.[62] Moreover, hyperefficient “partisan symmetry” erodes the concept of voting districts altogether. The district court in Gill keenly foresaw this criticism by acknowledging the potential extremes of partisan gerrymandering, explaining that “to say that the Constitution does not require proportional representation is not to say that highly dis proportional representation may not be evidence of a discriminatory effect.”[63] Appellees instead claim they argue for “partisan symmetry” rather than proportional representation.[64] However, Chief Justice Roberts quipped that it “[sounded] exactly like proportional representation to [him].”[65] While Justice Kennedy expressed a more open mind, asking whether the most egregious instance of partisan gerrymandering might be unconstitutional,[66] the court would still be required to enforce––or at least approach––a system of proportional representation under the “efficiency gap” standard. This leads to another reason for holding that partisan gerrymandering is a non-justiciable political question: it is not the court’s place to make such structural changes to the government. B. The Supreme Court Should Not Overstep Its Proper Role Prudential considerations also suggest that court should have invoked the political question doctrine in Gill or should invoke it for future partisan gerrymandering claims. Satisfying Baker’s fourth element, it would be impossible to reach an “independent resolution without expressing lack of the respect [towards other] branches of government.”[67] The political question doctrine defines the court’s proper role within the federal government.[68] The framers of the United States Constitution did not design the judiciary as a political body;[69] they intended the court to be “insulated from the chaotic politics that consume the executive and legislative branches of government.”[70] Congress, not the court, should maintain “complete control over the amendment process,” and court decisions should not function as constitutional amendments.[71] Deciding Gill on its merits would fall outside of the court’s appropriate place within the government structure. Thirteen of the fifteen states with voting districts that fail the “efficiency gap” standard in 2018 are Republican states.[72] Implementing that standard thus reflects a willingness for the judiciary to actively reshape the nation’s balance of political power towards one party in particular. This plainly falls beyond the proper role of the judiciary—even the district court, which felt it had standing to hear the case, acknowledged that “state legislative apportionment is the prerogative and therefore a duty of the state government.”[73] Instead, the legislature is the proper forum to address partisan gerrymandering. By answering political questions such as partisan gerrymandering claims, the court would discourage the proper legislative process, almost enabling legislative dysfunction. In addition, adjudicating partisan gerrymandering claims falls outside of the framers’ designed role for the court. In the American two-party political system, partisan gerrymandering claims are inherently political, because revoking political power from one party automatically shifts power to the other party. In this respect, affirming the district court would be an undemocratic fix to a democratic problem, where judges determine the outcome of politically-divided elections—therefore creating “appointed” or “unelected” congressmembers. In Gill, the Supreme Court said it must apply a standard that “ensures that [they] act as judges, and do not engage in policymaking properly left to elected representatives.”[74] Then, in Davis, Justice Burger said “the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed.”[75] To the contrary, Alexander Hamilton in Federalist No. 78 wanted the judiciary to be the “least dangerous” political branch, whereby judges would act with “neither force nor will.”[76] And James Madison in Federalist No. 51 explained that “legislative authority necessarily predominates” the judiciary,[77] suggesting that legislative resolution to partisan gerrymandering is more appropriate than judicial resolution. But there is another possibility: maybe the court is the perfect place to address partisan gerrymandering. It’s not hard to imagine that voters and the legislature cannot properly fix the issue themselves. Citizens may not be able to vote the gerrymandering party out of office if the maps are too heavily skewed.[78] Their votes cannot fix partisan gerrymandering; their votes are defined by partisan gerrymandering. In that sense, court intervention seems appropriate because although the issue falls outside of the court’s role, the other branches either cannot or will not fix the problem. Political gerrymandering may also exacerbate partisan gridlock throughout the nation,[79] so court intervention appears appropriate to surpass a paralyzed legislature. Others are also concerned that the negative effects of partisan gerrymandering will worsen if not reversed, given the precision and influence of big data technology.[80] Although these are important considerations, they operate on the assumption that the Constitution grants a right to protection from another political party, and, even if it does, the court is able to proscribe manageable standards to protect that right. In Gill, the Supreme Court explained that its “power as judges to ‘say what the law is’...rests not on the default of politically accountable officers.”[81] On balance, it is simply improper and unworkable “to inject the courts into the most heated partisan issues.”[82] C. Judicial HyperPartisanship Renders Adjudication on the Merits Inappropriate There are legitimate concerns that the court cannot prevent its own bias and achieve an “independent resolution,” again satisfying Baker’s fourth factor.[83] Failing to invoke the political question doctrine would demonstrate a “lack of respect” for the Wisconsin state legislature, because the Justices could not redesign Wisconsin’s legislature without imposing their own ideologies. Alternatively, this piece proposes that “judicial hyper-partisanship rendering adjudication inappropriate” functions as a new factor for determining non-justiciable political questions. This proposed factor would (1) be consistent with the Baker factors, (2) function as a “prudential consideration” which is one aspect of the political question doctrine,[84] and (3) fit seamlessly into the political question doctrine’s overall purpose to ensure the proper role of the court. While this proposition deserves full discussion at another time, it highlights the fact that the court could proffer an entirely new justification for invoking the political question doctrine, since the six Baker factors are non-exhaustive.[85] Irrespective of which “factor” applies, partisan polarization is increasing at all levels of government.[86] A highly-politicized Supreme Court is relatively new, though: “before 2010, the Court never had clear ideological blocs that coincided with party lines.”[87] Authorities like Richard Posner now believe “the Supreme Court is not an ordinary court but a political court...strongly influenced in making its decisions by the political beliefs of the judges.”[88] And empirical evidence proves this. Justices now vote along party lines more frequently in politically-charged cases. Less than two percent of the court’s decisions were 5-4 between 1801 and 1940, but in 2005, this rate topped 20 percent[89] and even spiked to 30 percent in 2006 and 2008.[90] The Senate’s Supreme Court confirmation process is another indicator: the four most senior Justices on the court received less than 21 negative votes on average, while the five newest Justices received more than 40 negative votes on average.[91] The recent cases of Judge Garland, Justice Gorsuch, and Justice Kavanaugh likewise illustrate how judicial office now seems defined by partisanship from the start.[92] Hyperpartisan judicial decisions are detrimental to a well-functioning judiciary. Chief Justice Roberts has expressed concern that the increase in 5-4 decisions erodes the public’s confidence in the court “as a partisan institution,” threatening its credibility and legitimacy.[93] Lawyers have also started preying on the Justices’ partisanship, as “more and more appellate litigators have come to appreciate that the federal ‘courts are a sort of untapped resource for pursuing [a political party’s] agenda.’”[94] On the other hand, maybe the court could have decided Gill on the merits without the bias seen in recent decades.[95] For example, the National Association for the Advancement of Colored People (NAACP) asserts that “gerrymandering isn’t just a political fight between the parties...‘both Democratic and Republican legislatures have used the power of the state to enact extreme partisan gerrymanders.’”[96] At least one poll shows bipartisan voter consensus against partisan gerrymandering.[97] And several Republicans—not just Democrats—publicly advocate against it.[98] For example, a group of Republicans including Arnold Schwarzenegger, John Kasich, and Bob Dole filed an amicus brief asserting that if the “Court does not stop partisan gerrymanders, partisan politicians will be emboldened to enact ever more egregious gerrymanders...That result would be devastating for our democracy.”[99] Alternatively, maybe adjudicating the merits would not have displayed a lack of respect for Wisconsin’s legislature because the current Justices are not to blame for hyper-partisanship. Decades ago, the court said that “politics and political considerations are inseparable from districting and apportionment...The reality is that districting inevitably has and is intended to have substantial political consequences.”[100] Others assert that judicial impartiality is a myth[101] and that law is unavoidably political.[102] Yet more argue that “judges are inevitably political actors, and hence their decisions are ultimately based on their ideological convictions.”[103] If partisanship is unavoidable, maybe the court should have decided Gill on its merits anyway. It is also unclear that invoking the political question doctrine actually eliminates the negative effects of a political decision. Just as adjudication on the merits favors the plaintiff’s political party and disfavors the defendant’s party, not ruling on the merits favors the defendant’s party and disfavors the plaintiff’s party. In other words, evading the merits of Gill—perhaps under the guise of the political question doctrine—is still a political maneuver.[104] Some case law demonstrates that declining to rule still yields a victor and shapes policy.[105] Nevertheless, passive political maneuvers are at least more palatable than active political maneuvers. Even if the political question doctrine is invoked as a political tool, it cannot be completely arbitrary, because Justices are constrained to provide coherent legal reasoning behind their decisions.[106] On balance, the court should have held in Gill, or should hold in the future, that partisan gerrymandering is a non-justiciable political question, because judicial hyperpartisanship renders the issue inappropriate for judicial resolution—even though there is bipartisan support, hyperpartisanship is not the court’s fault, and the political question doctrine itself resembles a political maneuver. The best advice comes from Justice O’Connor, who, looking back on Bush v. Gore, expressed regret for not invoking the political question doctrine, explaining that “maybe the Court should have said, ‘We’re not going to take it, goodbye’” and that the case “‘stirred up the public’ and ‘gave the Court a less than perfect reputation.’”[107] IV. Refuting the Alternative of Ruling on the Merits Two rationales might support the decision to ignore the political question doctrine and address the merits in Gill, neither of which were reached because the court remanded the case on standing grounds.[108] First, Gill might not involve a political question at all. The court could have held that the “efficiency gap” analysis provides a judicially manageable standard, prudential considerations are irrelevant, and hyperpartisanship will not affect the outcome. Some even argue the political question doctrine does not exist at all.[109] Second, Gill might involve a political question that the court should have addressed anyway––akin to a “justiciable political question.” The court has confronted contentious political questions before.[110] Bush v. Gore (2000) is perhaps most analogous, because it determined the outcome of a political election under the Equal Protection and Due Process clauses. There, the court ignored the political question doctrine, even though the case had high-profile and partisan implications.[111] Others argue this case taught judges the art of political manipulation under the guise of apolitical judiciousness.”[112] Thus, cases like Bush v. Gore may have set precedent for the court to ignore the political question doctrine in Gill. Regardless of the rationale for ignoring the political question doctrine, the merits of Gill implicate the Fourteenth and First Amendments. V. The Fourteenth Amendment Claim Plaintiff-Appellants claimed that partisan gerrymandering violates their Fourteenth Amendment rights.[113] The Equal Protection Clause of the Fourteenth Amendment[114] “guarantees the opportunity for equal participation by all voters in the election of state legislators.”[115] In the context of voting districts, it requires that “seats in both houses of a bicameral state legislature must be apportioned on a population basis.”[116] This protects the “one-person, one-vote” principle enshrined in the Equal Protection Clause.[117] More specifically, partisan gerrymandering “may” create unconstitutional districts if political groups (1) have been “fenced out of the political process,” and (2) have had their voting strength “invidiously minimized.”[118] The purpose is to achieve “fair and effective representation” for all citizens.[119] First, there are credible arguments that voters have been fenced out of the political process, and the alleged “wasted votes” seem to violate the “one-person, one-vote” standard. At oral argument, Justice Ginsburg focused on partisan gerrymandering’s effect of denying individuals of “the precious right to vote,”[120] expressing concern that “if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?...The result is preordained in most of the districts. Isn’t that -- what becomes of the precious right to vote?” On the other hand, it is more persuasive that partisan gerrymandering does not violate the “one person, one vote” principle, because Plaintiff-Appellants unavoidably seek damages to the Democratic party as a whole,[121] not to “one person.” Unlike the constitutional right to protection from racial gerrymandering, which specifically targets and harms individuals based on their human identity, regardless of who they vote for, partisan gerrymandering is inextricably intertwined with the outcome of a political party rather than individuals who can change their voting preference at any time. Second, Wisconsin’s map seems to satisfy Gaffney’s “invidious” requirement, because it was designed to fix future elections and “the goal of the map...was to ‘determine who’s here 10 years from now.’”[122] This “invidious” trend seems to occur in districts nationwide too, generally hurting Democrats more than Republicans.[123] Commentators note that “the Supreme Court has also picked up on the widespread agreement and has often assumed, at least implicitly, that the drawing of majority-minority districts comes at a cost for the Democratic Party.”[124] Even if partisan gerrymandering seems “invidious” towards Democrats, it is not unconstitutional unless shown to have fenced voters out of the political process. As discussed in Section III, these claims present a lack of judicially-manageable standards to make such a determination. Even if such measurements like the “efficiency gap” are accepted, their use falls outside of the court’s proper role in the government, and even if it falls within the court’s proper role, judicial hyperpartisanship makes such a determination inappropriate. Thus, adjudicating Gill under the Fourteenth Amendment inevitably circles back to the rationale for invoking the political question doctrine in the first place. A. The First Amendment Claim The plaintiffs also argued that partisan gerrymandering caused “wasted votes” and diluted voting power, “unreasonably burden[ing] their First Amendment rights of association and free speech.”[125] The First Amendment states that “Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble,”[126] and protects individuals from infringement by the states.[127] The court has held that “in the context of partisan gerrymandering...First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights,”[128] bearing resemblance to the Fourteenth Amendment’s “invidious” and “fencing out” elements. A First Amendment analysis at least semantically alleviates problems associated with the Fourteenth Amendment analysis—particularly with respect to prudential considerations and judicial hyperpartisanship. Under a First Amendment analysis, the court would ensure the voting process is fair for all voters, rather than directly comparing the “equality” of two political parties at large. Thus, the court would not have purported to analyze or manipulate the balance of partisan power in Wisconsin’s legislature. By extension, risks associated with judicial hyperpartisanship seem to disappear as well. However, the outcome would have remained the same under the First Amendment—one party wins and one party loses. Justices who wish to manipulate the balance of partisan power could still do so, just under the guise of another constitutional provision. Still, the First Amendment analysis is more appealing than the Fourteenth, because even if the court alters the balance of power, at least it will not be blatant, mitigating concerns about the court’s public reputation and the appearance of bias.[129] Most significantly, the First Amendment would not alleviate the lack of judicially-manageable standards. Measuring the effect of partisan gerrymandering under the First Amendment still requires calculations like the “efficiency gap.” Like the Fourteenth Amendment analysis, the First Amendment analysis inevitably circles back to the rationale for holding that partisan gerrymandering is a non-justiciable political question. V. The Supreme Court’s Ethical Obligations in Gill v. Whitford There aren’t any – at least, not prescribed by law. All federal judges, except Supreme Court Justices, are bound by the Code of Conduct for United States Judges,[130] which provides pertinent guidance in Gill: Canon 1 states “[a] Judge Should Uphold the Integrity and Independence of the Judiciary,” Canon 2 states “[a] Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities...A judge should not allow...political...relationships to influence judicial conduct or judgment,” and Canon 5 states “[a] Judge Should Refrain from Political Activity.”[131] The Code is further buttressed by sections of the non-binding American Bar Association (ABA) Model Code of Judicial Conduct, such as Rule 2.3, which provides that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice...including but not limited to...political affiliation.”[132] And Rule 2.4 further complements that “[a] judge shall not permit...political...interests or relationships to influence the judge’s judicial conduct or judgment.”[133] The ABA Code of Judicial Conduct does not apply to the Supreme Court, however.[134] Several Justices have stated they follow it regardless,[135] and all Justices take the Judicial Oath of Office, swearing to “faithfully and impartially discharge and perform all the duties incumbent upon [them].”[136] But the Code remains non-binding and the Oath of Office does not create an enforcement mechanism once Justices take office. The Code thus provides persuasive support for invoking the political question doctrine in Gill. Manipulating the balance of political power in a state legislature would erode the integrity and independence of the judiciary,[137] violating Canon 1. Adjudicating the merits of the claims to propel political agendas would be neither independent nor impartial, violating Canons 2 and 5. Allowing such political bias to influence the decision-making process also stands in the face of ABA Rules 2.3 and 2.4. And under Canon 5, this all would apply whether or not political agendas are the underlying motivation, simply because it would appear improper. Although the Code does not apply to the Supreme Court, the existence of scribed rules isn’t the point of ethics. As Judge Alex Kozinski puts it, “we’d all be better off in a world with fewer rules and a more clear-cut understanding that impartiality and diligence are obligations that permeate every aspect of judicial life—obligations that each judge has the unflagging responsibility to police for himself.”[138] Justices should be held to the highest moral and ethical standards, guided by their own moral compass, even if not required by rule. It’s true that if determined to do so, the Justices can find a way to apply or not apply the political question doctrine to further their political agenda in partisan gerrymandering cases––if that is their goal.[139] But if they wish to invoke the political question doctrine, ethical principles support them. Conclusion After decades of debate and contradictory Supreme Court decisions, Gill v. Whitford presented an opportunity for the Supreme Court to clarify whether partisan gerrymandering is justiciable. The court should have held that partisan gerrymandering is a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyper-partisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should have guided the Justices’ own moral compass towards the political question doctrine. Partisan gerrymandering claims, like those presented in Gill v. Whitford , can be analyzed under both the political question doctrine or the First and Fourteenth Amendments. Those analyses lead to drastically different consequences for American politics: adopting the political question analysis would ultimately favor the Republican party, while adopting the First Amendment analysis would ultimately favor the Democratic party. The prevailing analysis has the power to permanently alter the American political landscape. Endnotes [1] Gill v. Whitford , No. 16-1161 (U.S. July 2017): (“Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”); S.M., “Justice Kennedy Will Take Centre Stage during the Supreme Court’s Upcoming Term,” The Economist, August 15, 2017, https://www.economist.com/democracy-in-america/2017/08/15/justice-kennedy-will-takecentre-stage-during-the-supreme-courts-upcoming-term. [2] See Brief for Appellants, Gill v. Whitford , No. 16-1161 (U.S. July 2017). [3] Gill, 138 S. Ct. 1916. [4] Gill, 138 S. Ct. 1916. [5] Gill, 138 S. Ct. 1916. [6] “Gerrymander,” Www.Dictionary.Com , accessed January 5, 2019, https://www.dictionary.com/browse/ gerrymander. [7] Erick Trickey, “Where Did the Term ‘Gerrymander’ Come From?,” Smithsonian, accessed January 5, 2019, https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/. [8] See Thomas Wolf, “What the Briefs Say About Extreme Gerrymandering | Brennan Center for Justice,” Brennan Center for Justice, September 6, 2017, https://www.brennancenter.org/blog/what-briefs-say-aboutextreme-gerrymandering. [9] Whitford v. Gill, 218 F. Supp. 3d 837, 854 (W.D. Wis. 2016). [10] Whitford, 218 F. Supp. 3d at 854. [11] Whitford, 218 F. Supp. 3d at 853. See also Michael Li and Thomas Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case,” Brennan Center for Justice, June 19, 2017, https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case. [12] Complaint, 14–16, Whitford, 218 F. Supp. 3d 837. [13] Complaint, p. 27–28, Whitford, 218 F. Supp. 3d 837. [14] Whitford, 218 F. Supp. 3d at 910; as amended by Amended Judgment, Whitford v. Gill, No. 15-cv-421-bbc (W.D. Wis. Feb. 22, 2017). [15] Erwin Chemerinsky discussed Gill v. Whitford at a Federalist Society event the author attended in Los Angeles. See also Azam Nizamuddin, John Pcolinski, and Tim Klein, eds., “Supreme Court Review,” DCBA Brief | The Journal of The DuPage County Bar Association 30 (October 2017), https://www.dcba.org/mpage/vol301017art3. (“According to Erwin Chemerinsky...‘There is really no issue more important than whether partisan gerrymandering should continue.’”). [16] Nizamuddin et al, “Supreme Court Review.” (“Gill v. Whitford is a case which may have implications far beyond Wisconsin.”). [17] See, e.g., Wolf, “What the Briefs Say About Extreme Gerrymandering”; Gill, 138 S. Ct. at 1934. [18] S.M., “Justice Kennedy Will Take Centre Stage”; Gill, 138 S. Ct. 1916. [19] See Gwynne Skinner, “Misunderstood, Misconstrued, and Now Clearly Dead: The ‘Political Question Doctrine’ as a Justiciability Doctrine,” Journal of Law and Politics 29 (May 28, 2014): 427. [20] See Marbury v. Madison, 5 U.S. 137 (1803). [21] Baker v. Carr, 369 U.S. 186, 209–10 (1962). [22] Gaffney v. Cummings, 412 U.S. 735, 754 (1973). [23] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [24] Gaffney v. Cummings, 412 U.S. at 754. [25] Davis v. Bandemer, 478 U.S. 109, 143 (1986). [26] Davis v. Bandemer, 478 U.S. at 125. [27] Davis v. Bandemer, 478 U.S. at 152 (1986). (O’Connor, J., concurring). [28] Vieth v. Jubelirer, 541 U.S. 267, 281 (2004). [29] See Vieth v. Jubelirer, 541 U.S. at 306 (Kennedy, J., concurring); at 317 (Stevens, J., dissenting); at 343 (Souter, J., dissenting); at 355 (Breyer, J., dissenting). [30] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414–15 (2006). [31] League of United Latin Am. Citizens v. Perry, 548 U.S. at 414. [32] League of United Latin Am. Citizens v. Perry, 548 U.S. at 461. (Stevens, J., concurring in part and dissenting in part). [33] Gill, 138 S. Ct. at 1929. [34] Gill, 138 S. Ct. at 1931. (“We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”) [35] See generally Chris Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton,” The Yale Law Journal 123, no. 1 (October 2013), https://www.yalelawjournal.org/comment/theres-no-such-thing-as-a-political-question-of-statutory-interpretation-theimplications-of-zivotofsky-v-clinton; Louis Michael Seidman, “‘The Secret Life of the Political Question Doctrine’ by Louis Michael Seidman,” 37 J. Marshall L. Rev. 441-480 (2004), accessed January 5, 2019, https://scholarship.law.georgetown.edu/facpub/563/. [36] Vieth v. Jubelirer, 541 U.S. 267, at 277. (Internal citations omitted). [37] Though unclear, some argue the political question doctrine has evolved to “eliminate judicial consideration of the prudential aspects of the political question doctrine or severely limit the application of Baker’s second factor—a lack of judicial standards.” Jared Cole, “The Political Question Doctrine: Justiciability and the Separation of Powers,” CRS Report (Congressional Research Service, December 23, 2014), https://fas.org/sgp/crs/misc/R43834.pdf, 24. [38] Cole, “The Political Question Doctrine,” 1. See also Charles A. Wright and Arthur M. Miller et al., “§3534.1 Political Questions—Political Issues and Separation of Powers,” in Federal Practice and Procedure, 3rd ed., vol. 13C, 2015. (The political question doctrine is derived from “the conclusion that in the separation of federal powers, certain matters are confined to the political branches”). [39] Baker v. Carr, 369 U.S. 186, at 217. (“The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’”). See also Cole, “The Political Question Doctrine”; Gill, 138 S. Ct. at 1931. (“It is important to distinguish the political question doctrine from cases presenting political issues. Courts adjudicate controversies with political ramifications on a regular basis...The political question doctrine applies to issues thatcourts determine are best resolved within the politically accountable branches of government—Congress or the executive branch.”). [40] Neal Devins and Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court,” Supreme Court Review 2016 (January 30, 2017), https://papers.ssrn.com/abstract=2432111. (Citing Nomination of John Roberts, 109th Cong, 1st Sess. (Sept 22, 2005), in 151 Cong. Rec. 21032 (remarks of Senator Obama)). [41] Ronald K.L. Collins and David K. Skover, The Judge: 26 Machiavellian Lessons (Oxford, New York: Oxford University Press, 2017), 94. [42] Baker v. Carr, 369 U.S. 186, at 217. [43] Vieth v. Jubelirer, 541 U.S. 267, at 277. [44] Oral Argument Tr. at 40, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts). [45] Nate Cohn and Quoctrung Bui, “How the New Math of Gerrymandering Works,” The New York Times, October 3, 2017, sec. The Upshot, https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-mathof-gerrymandering-works-supreme-court.html, https://www.nytimes.com/interactive/2017/10/03/upshot/howthe-new-math-of-gerrymandering-works-supreme-court.html. [46] Cohn and Bui, “How the New Math of Gerrymandering Works.” [47] Cohn and Bui, “How the New Math of Gerrymandering Works.” [48] Cohn and Bui, “How the New Math of Gerrymandering Works.” [49] See Whitford v. Gill, 218 F. Supp. 3d at 964. (Greisbach, J., dissenting). [50] Whitford v. Gill, 218 F. Supp. 3d at 853. [51] Gill, 138 S. Ct. at 1938. [52] Note that all of these states except Nevada voted Republican in the 2017 presidential election. See Brief for the States of Texas, Arizona, Arkansas, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Oklahoma, South Carolina, and Utah as Amici Curiae in Support of Appellants, Gill v. Whitford, No. 16-1161, 3. [53] Brief for the States of Texas et al., Gill v. Whitford, No. 16-1161, 2. [54] Davis v. Bandemer, 478 U.S. at 158. (Burger, J., concurring). [55] Michael Li and Thomas P. Wolf, “Supreme Court Has Historic Chance to End Extreme Gerrymandering,” The American Prospect, June 21, 2017, https://prospect.org/article/supreme-court-has-historic-chance-endextreme-gerrymandering. (“Extreme [political gerrymandering] maps...account for at least 16 and maybe 17 seats in the Republican majority in the House of Representatives. That’s a sizeable chunk of the 24 seats Democrats would need to regain control of the House in 2018.”). [56] Whitford v. Gill, 218 F. Supp. 3d at 944. [57] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [58] See Wolf, “What the Briefs Say About Extreme Gerrymandering.” (Stating there are “two factors [that] would narrow down the range of potentially unconstitutional maps to just a handful this cycle”). [59] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [60] Whitford v. Gill, 218 F. Supp. 3d at 904. (“In a purely proportional representation system, a party would be expected to pick up votes and seats at a one-to-one ratio.”). [61] See Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts) (“Proportional representation . . . has never been accepted as a political principle in the history of this country.”). See also League of United Latin Am. Citizens v. Perry, 548 U.S. at 419. [62] Davis v. Bandemer, 478 U.S. at 132. [63] Whitford v. Gill, 218 F. Supp. 3d at 906. [64] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [65] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [66] Oral Argument Tr. at 26, Gill v. Whitford, No. 16-1161. [67] See Baker v. Carr, 369 U.S. at 217. [68] See Baker v. Carr, 369 U.S. at 278. [69] See, e.g., Alexander Hamilton, “Federalist No. 78: The Judiciary Department,” May 28, 1788, http://avalon.law.yale.edu/18th_century/fed78.asp. [70] Lucas Rodriguez, “The Troubling Partisanship of the Supreme Court,” Stanford Politics (blog), January 7, 2016, https://stanfordpolitics.org/2016/01/07/troubling-partisanship-supreme-court/. [71] Wright and Miller et al., “§ 3534.1 Political Questions—Political Issues and Separation of Powers.” [72] Cohn and Bui, “How the New Math of Gerrymandering Works.” [73] Whitford v. Gill, 218 F. Supp. 3d at 883. [74] Gill v. Whitford, 138 S. Ct. at 1923. (Emphasis in original). [75] Davis v. Bandemer, 478 U.S. at 145. (Burger, J., concurring). [76] Hamilton, Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (“The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”). See also Collins & Skover, The Judge. [77] James Madison, “The Federalist #51,” February 6, 1788, http://constitution.org/fed/federa51.htm. [78] Li & Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case.” [79] A bipartisan group of 36 members of Congress, “have decried partisan gerrymandering as ‘a substantial cause of the dysfunction of contemporary politics.’” “Bipartisan Support for Whitford | Brennan Center for Justice,” Brennan Center for Justice, accessed January 6, 2019, https://www.brennancenter.org/bipartisansupport-whitford. [80] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [81] Gill v. Whitford, 138 S. Ct. at 1929. [82] Davis v. Bandemer, 478 U.S. at 145. (O’Connor, J., dissenting), (emphasis added). [83] Baker v. Carr, 369 U.S. at 217. [84] See Zachary Baron Shemtob, “The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm,” The Georgetown Law Journal 4 (2016): 1013-7. [85] See Baker v. Carr, 369 U.S. at 217. [86] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [87] Devins and Baum, “Split Definitive,” 301. [88] Richard Posner, “The Supreme Court Is a Political Court. Republicans’ Actions Are Proof.,” Washington Post, March 9, 2016, https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-courtrepublicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98-4b3d9215ade1_story.html. (Discussing Republicans senators’ decision to not consider President Obama’s nominations to the Supreme Court). [89] Rodriguez, “The Troubling Partisanship of the Supreme Court”; David Paul Kuhn, “The Incredible Polarization and Politicization of the Supreme Court,” The Atlantic, June 29, 2012, https://www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/. [90] Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [91] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [92] Jessica Yarvin and Daniel Bush, “Is the Hyper-Partisan Supreme Court Confirmation Process ‘the New Normal’?” PBS NewsHour, September 13, 2018, https://www.pbs.org/newshour/nation/is-the-hyper-partisansupreme-court-confirmation-process-the-new-normal. [93] Jeffrey Rosen, “The Supreme Court Has a Legitimacy Crisis, But Not For the Reason You Think |,” New Republic, June 11, 2012, https://newrepublic.com/article/103987/the-supreme-court-has-legitimacy-crisisnot-the-reason-you-think. But other studies suggest Justice Roberts may be wrong on this point, because most Americans don’t know or understand the political allegiances of the Justices. [94] Collins & Skover, The Judge, xiii. [95] See Devins & Baum, Devins and Baum, “Split Definitive,” 314. [96] Wolf, “What the Briefs Say About Extreme Gerrymandering.” Note also, this is not completely correct. See Cohn & Bui, “How the New Math of Gerrymandering Works,” (showing that nearly all maps violating the “efficiency gap” are Republican districts). [97] Li & Wolf, “Supreme Court has Historic Chance to End Extreme Gerrymandering.” (“The most recent Harris poll shows that 74 percent of Republicans, 73 percent of Democrats, and 71 percent of independents believe that politicians shouldn’t have a hand in drawing lines that benefit them.”). [98] See generally Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering.” [99] Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering. [100] Gaffney v. Cummings, 412 U.S. at 753. [101] Collins & Skover, The Judge, 15. [102] Collins & Skover, The Judge, xii–xiii. (“Law is political. . . . Whatever the political stripes, the charge is always the same: Judge-made law has become politicized.”). [103] Cass R. Sunstein, “Moneyball for Judges,” The New Republic, April 10, 2013, https://newrepublic.com/article/112683/moneyball-judges. [104] See Shemtob, “The Political Question Doctrines”; Madison, “The Federalist #51.” [105] Collins & Skover, The Judge, 33. [106] Shemtob, “The Political Question Doctrines,” 1027. [107] Jeffrey Toobin, “Justice O’Connor Regrets,” The New Yorker, May 6, 2013, https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. [108] Gill v. Whitford, 138 S. Ct. at 1937–38. [109] See Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation,” 143–44. [110] See D.C. v. Heller, 554 U.S. 570, 603 (2008). See also Collins & Skover, The Judge, 71: (“Originalism, textualism, historicism—they were all isms perfectly suited to Justice Scalia’s conservative constitutional jurisprudence.”). [111] Collins & Skover, The Judge; Cole, “The Political Question Doctrine,” 94. [112] Collins & Skover, The Judge, 102. [113] Complaint, p. 24–27, Whitford v. Gill, 218 F. Supp. 3d 837. [114] “Constitution of the United States - Amendment XIV” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [115] Reynolds v. Sims, 377 U.S. 533, 565–66 (1964). [116] Reynolds v. Sims, 377 U.S. at 568. [117] Whitford v. Gill, 218 F. Supp. 3d at 844. See also Reynolds v. Sims, 377 U.S. at 558. [118] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [119] Reynolds v. Sims, 377 U.S. at 565–66. [120] Oral Argument Tr. at 24, Gill v. Whitford, No. 16-1161. (Questioning by Justice Ginsburg). [121] See, e.g., Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. (“Extreme partisan gerrymandering is also contrary to core democratic values because it enables a political party to win more legislative districts.”) (emphasis added). [122] Whitford v. Gill, 218 F. Supp. 3d at 853. [123] See Cohn & Bui, “How the New Math of Gerrymandering Works.” [124] Adam B. Cox and Richard T. Holden, “Reconsidering Racial and Partisan Gerrymandering,” The University of Chicago Law Review 78, no. 2 (2011): 560. [125] Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. [126] “Constitution of the United States - Amendment I” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [127] Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). [128] Vieth v. Jubelirer, 541 U.S. at 314. [129] See Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [130] The Code omits the Supreme Court from coverage. See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts, 1973, https://www.uscourts.gov/judges-judgeships/code-conduct-unitedstates-judges. (“This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.”). [131] “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. [132] American Bar Association, “Model Code of Judicial Conduct,” August 16, 2018, https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/. [133] American Bar Association, “Model Code of Judicial Conduct.” [134] See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. [135] “Supreme Court Justices and the Code of Conduct,” Judicature 95, no. 4 (2011). [136] “Text of the Oaths of Office for Supreme Court Justices,” supremecourt.gov, accessed January 6, 2019, https://www.supremecourt.gov/about/oath/textoftheoathsofoffice2009.aspx. [137] See discussion supra Part III.C. [138] Alex Kozinski, “The Real Issues of Judicial Ethics,” Hofstra Law Review 32, no. 4 (January 1, 2004), https://scholarlycommons.law.hofstra.edu/hlr/vol32/iss4/1, 1106. [139] Kozinski, “The Real Issues of Judicial Ethics,” 1105. (“A judge can appear to act ethically and still betray his responsibility in essential respects, and in ways that no one will ever know about.”). Bibliography Adam B. Cox, and Richard T. Holden. “Reconsidering Racial and Partisan Gerrymandering.” The University of Chicago Law Review 78, no. 2 (2011): 553. American Bar Association. “Model Code of Judicial Conduct,” August 16, 2018. https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/. Beverly R. Gill, et al., Appellants v. William Whitford, et al., No. 16–1161 (United States Supreme Court June 18, 2018). “Bipartisan Support for Whitford | Brennan Center for Justice.” Brennan Center for Justice. Accessed January 6, 2019. https://www.brennancenter.org/bipartisan-support-whitford. “Code of Conduct for United States Judges | 69 F.R.D. 273.” United States Courts, 1973. https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges. Cohn, Nate, and Quoctrung Bui. “How the New Math of Gerrymandering Works.” The New York Times, October 3, 2017, sec. The Upshot. https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-math-of-gerrymandering-works-supreme-court.html, https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-math-of-gerrymandering-works-supreme-court.html. Cole, Jared. “The Political Question Doctrine: Justiciability and the Separation of Powers.” CRS Report. Congressional Research Service, December 23, 2014. https://fas.org/sgp/crs/misc/R43834.pdf. Collins, Ronald K.L., and David K. Skover. The Judge: 26 Machiavellian Lessons. Oxford, New York: Oxford University Press, 2017. “Constitution of the United States - Amendment I.” United States Senate. Accessed January 6, 2019. https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. “Constitution of the United States - Amendment XIV.” United States Senate. Accessed January 6, 2019. https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. Devins, Neal, and Lawrence Baum. “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court.” Supreme Court Review 2016 (January 30, 2017). https://papers.ssrn.com/abstract=2432111. “Federal Practice and Procedure, Wright ... | Legal Solutions.” Accessed January 6, 2019. https://store.legal.thomsonreuters.com/law-products/Legal-Encyclopedias/Federal-Practice-and-Procedure-Wright--Miller/p/100028918. “Gerrymander.” Www.Dictionary.Com . Accessed January 5, 2019. https://www.dictionary.com/browse/gerrymander. Hamilton, Alexander. “Federalist No. 78: The Judiciary Department,” May 28, 1788. http://avalon.law.yale.edu/18th_century/fed78.asp. Kozinski, Alex. “The Real Issues of Judicial Ethics.” Hofstra Law Review 32, no. 4 (January 1, 2004). https://scholarlycommons.law.hofstra.edu/hlr/vol32/iss4/1. Kuhn, David Paul. “The Incredible Polarization and Politicization of the Supreme Court.” The Atlantic, June 29, 2012. https://www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/. Li, Michael, and Thomas Wolf. “5 Things to Know About the Wisconsin Partisan Gerrymandering Case.” Brennan Center for Justice, June 19, 2017. https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case. Li, Michael, and Thomas P. Wolf. “Supreme Court Has Historic Chance to End Extreme Gerrymandering.” The American Prospect, June 21, 2017. https://prospect.org/article/supreme-court-has-historic-chance-end-extreme-gerrymandering. Madison, James. “The Federalist #51,” February 6, 1788. http://constitution.org/fed/federa51.htm. Michel, Chris. “There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton.” The Yale Law Journal 123, no. 1 (October 2013). https://www.yalelawjournal.org/comment/theres-no-such-thing-as-a-political-question-of-statutory-interpretation-the-implications-of-zivotofsky-v-clinton. Nizamuddin, Azam, John Pcolinski, and Tim Klein, eds. “Supreme Court Review.” DCBA Brief | The Journal of The DuPage County Bar Association 30 (October 2017). https://www.dcba.org/mpage/vol301017art3. Posner, Richard. “The Supreme Court Is a Political Court. Republicans’ Actions Are Proof.” Washington Post, March 9, 2016. https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-court-republicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98-4b3d9215ade1_story.html. Rodriguez, Lucas. “The Troubling Partisanship of the Supreme Court.” Stanford Politics (blog), January 7, 2016. https://stanfordpolitics.org/2016/01/07/troubling-partisanship-supreme-court/. Rosen, Jeffrey. “The Supreme Court Has a Legitimacy Crisis, But Not For the Reason You Think |.” New Republic, June 11, 2012. https://newrepublic.com/article/103987/the-supreme-court-has-legitimacy-crisis-not-the-reason-you-think. Seidman, Louis Michael. “‘The Secret Life of the Political Question Doctrine’ by Louis Michael Seidman.” 37 J. Marshall L. Rev. 441-480 (2004). Accessed January 5, 2019. https://scholarship.law.georgetown.edu/facpub/563/. Shemtob, Zachary Baron. “The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm.” The Georgetown Law Journal 4 (2016): 1001. Skinner, Gwynne. “Misunderstood, Misconstrued, and Now Clearly Dead: The ‘Political Question Doctrine’ as a Justiciability Doctrine.” Journal of Law and Politics 29 (May 28, 2014): 427. S.M. “Justice Kennedy Will Take Centre Stage during the Supreme Court’s Upcoming Term.” The Economist, August 15, 2017. https://www.economist.com/democracy-in-america/2017/08/15/justice-kennedy-will-take-centre-stage-during-the-supreme-courts-upcoming-term. Sunstein, Cass R. “Moneyball for Judges.” The New Republic, April 10, 2013. https://newrepublic.com/article/112683/moneyball-judges. “Supreme Court Justices and the Code of Conduct.” Judicature 95, no. 4 (2011). “Text of the Oaths of Office for Supreme Court Justices.” supremecourt.gov. Accessed January 6, 2019. https://www.supremecourt.gov/about/oath/textoftheoathsofoffice2009.aspx. Toobin, Jeffrey. “Justice O’Connor Regrets.” The New Yorker, May 6, 2013. https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. Trickey, Erick. “Where Did the Term ‘Gerrymander’ Come From?” Smithsonian. Accessed January 5, 2019. https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/. Wolf, Thomas. “What the Briefs Say About Extreme Gerrymandering | Brennan Center for Justice.” Brennan Center for Justice, September 6, 2017. https://www.brennancenter.org/blog/what-briefs-say-about-extreme-gerrymandering. Wright, Charles A., and Arthur M. Miller. “§ 3534.1 Political Questions—Political Issues and Separation of Powers.” In Federal Practice and Procedure, 3rd ed. Vol. 13C, 2015. Yarvin, Jessica, and Daniel Bush. “Is the Hyper-Partisan Supreme Court Confirmation Process ‘the New Normal’?” PBS NewsHour, September 13, 2018. https://www.pbs.org/newshour/nation/is-the-hyper-partisan-supreme-court-confirmation-process-the-new-normal.

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown Journal of Philosophy, Politics & Economics Volume IV, Issue I scroll to view articles Volume IV Issue I Philosophy Authenticating Authenticity Authenticity as Commitment, Temporally Extended Agency, and Practical Identity Kimberly Ramos Can Pascal Convert the Libertine? An Analysis of the Evaluative Commitment Entailed by Pascal’s Wager Neti Linzer The Growing Incoherence of Our Higher Values Aash Mukerji The Necessity of Perspective A Nietzschean Critique of Historical Materialism and Political Meta-Narratives Oliver Hicks Read More Politics The Unchurching of Black Lives Matter The Evolving Role of Faith in The Fight for Racial Justice Anna Savo-Matthews From Bowers to Obergefell The US Supreme Court’s Erratic, Yet Correct, Jurisprudence on Gay Rights Sydney White Predictive Algorithms in the Criminal Justice System Evaluating the Racial Bias Objection Rebecca Berman Read More Economics God Save the Fish The Abyss of Electoral Politics in Trade Talks––a Brexit Case Study Eleanor Ruscitti The Black Bourgeoisie The Chief Propagators of “Buy Black” and Black Capitalism Noah Tesfaye Breaking Big Ag Examining the Non-Consolidation of China’s Farms Noah Cohen Read More Applications for JPPE Now open! See Available Positions

Aash Mukerji The Growing Incoherence of Our Higher Values Aash Mukerji Nihilism is perhaps the most commonly misunderstood notion in Friedrich Nietzsche’s writings. Not only do many wrongly believe Nietzsche to advocate for nihilistic behavior, but many also see nihilism as the loss of all value and synonymous with the belief that everything is meaningless and valueless. In reality, Nietzsche defines severe nihilism as “the conviction of the absolute untenability of existence when it comes to the highest values that are acknowledged”(1). For Nietzsche, nihilism thus does not necessarily reduce the individual to a living lump of ennui. Rather than lacking all value judgements, Nietzsche portrays nihilism as a condition characterized by the absence of justifiable higher values. This supposed depletion in justification comes from Nietzsche’s infamous assertion of the death of God; Nietzsche held that modern science has made “belief in the Christian God unbelievable” (2). Nietzsche believed that without divine reasons to cherish our higher values, we would ultimately lose them entirely. Moreover, Nietzsche characterizes nihilism primarily as a cultural phenomenon—the societal loss of higher values precedes and causes the affective individual symptoms of nihilism. Nietzsche sees this cultural wave of nihilism as a looming threat; he predicts that humanity is on the brink of succumbing, to becoming nothing more than a group of “last men” Last men are characterized by the aforementioned deficiency in higher values, effectively rendering them incapable of justifying any goals that do not immediately benefit them (3). Nietzsche makes the impending nature of nihilism clear in Zarathustra , where the titular character is confronted by a chorus of individuals who actually wish to become last men (4). Nietzsche’s assertion of the imminence of nihilism was something of great interest to me as it seems that, even in the last two hundred odd years, our higher values have not been lost entirely. Nonetheless, I was not ready to entirely discount Nietzsche’s worries concerning our higher values, and this paper discusses a different manner in which our relationship with them may be deteriorating. In the wake of the death of God, what we are losing may not be our higher values themselves, but instead the unifying principles that require consistency and soundness among them. I will argue that we are progressing towards a world where our higher values are maintained but do not necessitate coherence in order to inform and justify our actions. Indeed, some incoherent higher values evidently already enjoy primacy over other kinds of values. I will attempt to demonstrate this by showing that, though contemporary society has preserved various higher values, individuals and communities frequently act in ways that conflict with those values without recognizing any logical inconsistency. This implies that what is missing from our higher values is the necessity for harmony with our actions and the other values we hold. In this paper, I will discuss some ideologies maintained today that seem to fit the characterization of higher values but conflict with our day-to-day activities and other values. I will attempt to supply some explanation for what causes this incoherence both through a Nietzschean lens and through the analysis of media culture within the framework of Jean Baudrillard. I believe both perspectives provide valuable insight into the mechanics of what is going on. Throughout this paper, I essentially seek to prove that we have retained our higher values but are losing their coherence and structure. First and foremost, we must establish some higher values that have been preserved. In my view, the most prevalent ones seem to be the political and social ideologies we subscribe to individually and culturally. For this paper, I will primarily consider liberalism and conservatism in America as typical instances of these types of values. To distinguish higher values from other more standard values, I will make use of the criteria detailed by Katsafanas in his paper, “Fugitive Pleasure and the Meaningful Life: Nietzsche on Nihilism and Higher Values.” These criteria include demandingness, tendency to generate tragic conflicts, regular induction of strong emotions, professedly great import, exclusion of other values, and propensity for creating communities (5). As far as I can tell, political ideologies seem to instantiate all of these criteria. They are certainly demanding; liberals and conservatives both generally see their chosen credo as the “correct” way to live and believe that it is immune to any sort of compromise. For either group, their ideology does not (in theory) allow them to be frivolous with their moral and political choices or to deviate from the prescribed guidelines is often perceived as a violation of some sort of ethical code. When conflict between our political ideologies and other higher values is acknowledged, such discord is often seen as tragic. For instance, nearly everyone has heard of individuals that have experienced, or have themselves experienced, intense strife with family members due to political disagreements. Family, as a general construct, is widely treated as a higher value. Familial bonds are demanding insofar as compromising them is seen as betrayal of the highest degree, they induce powerful emotions, acting for the sake of one’s family is seen as sufficient to explain most actions, family is often presented as taking priority over all other pursuits in life (to the point of being exclusionary), and family, of course, instantiates strong communities. So, when we experience conflicts between our political ideology and our family, such conflicts are nothing short of agonizing. Is it morally permissible to cut off one’s family members because they are conservative or liberal or libertarian? Is the gap in ideology something so forceful that it ought to trump deep familial bonds? Such questions are not easy to answer (for most) and the dilemma one finds oneself in when faced with them is most definitely viewed as a tragic one. Even if one is not sold on the status of family as a higher value, there are numerous others that can be substituted to illustrate my point. Here I will include a brief clarification that will prove important further on in this paper: The conflict between higher values must be acknowledged. My characterization of political ideology as a higher value relies partially on the notion that if one identifies a conflict between one’s political ideology and another higher value, then such conflict will be viewed as tragic. However, should one have an unrecognized logical conflict between one’s ideology and another higher value for whatever reason (for instance due to growing incoherence in our higher values), then this trait does not go unfulfilled merely because such a conflict goes unnoticed. Elicitation of strong emotions when it comes to political ideology needs no lengthy justification. One merely needs to survey the landscape of almost any social media platform to witness the masses loving, hating, condemning, and worshiping political figures. Likewise, it seems obvious that we believe political ideology is more important than the vast majority of things in our lives. At their core, ideologies such as liberalism and conservatism exist to function as banners of the things we value most in life. For the strong liberal or strong conservative, the very essence of what it means to live a good life is often synonymous with their dogma. Lastly, it is needless to say that political ideology has become exclusionary in nature and is prone to instantiate powerful communities. This phenomenon is represented best by the American political system where, by being part of one community, you are by default excluded (and often even looked down upon) by rivaling groups. As people increasingly and overwhelmingly define themselves and others based on their choices in politics, one’s ideology is commonly seen as central to one’s character. The intense political polarization that has resulted from this is testament to just how exclusionary political ideology has become and how robust the coalitions formed based on such ideology can truly be. Thus far, I have endeavored to establish political ideologies as common examples of higher values that are still held by people today. From here, I aim to show that such higher values are not being lost, but rather becoming increasingly incoherent. To this end, I would invite my reader to consider how party politics works in America. Generally speaking, the Democratic Party is meant to model liberalism and represent liberal people, and, conversely, the Republican Party is supposed to model conservatism in action. But can we confidently say that those values are the basis upon which each party unerringly acts? I have instead found their condition to be best described by the ideas of Baudrillard, whose framework I will use to illustrate what is going on. Of contemporary society, Baudrillard says: “Abstraction is no longer that of the map, the double, the mirror, or the concept. Simulation is no longer that of a territory, a referential being, or a substance. It is the generation by models of a real without origin or reality: a hyperreal. The territory no longer precedes the map, nor does it survive it. It is nevertheless the map that precedes the territory - precession of simulacra” (6). In short, rather than our values and ideals informing the models we use to structure society, the models have begun to determine our values. In this case, instead of political parties typifying our liberal or conservative ideals, it seems increasingly true that the parties are influencing and warping our values. If we accept this Baudrillardian understanding, it seems evident that what retains vital importance in modern society is not our higher values themselves but the models that now precede them. This account also explains why incoherence of higher values seems to be on the rise; we still perceive our higher values to be what drives our society forward, even though this is not the case, which causes a disconnect between the individual and the weight of their own values. In addition, because our models have started to inform our values, we are no longer able to distinguish which actions we take on behalf of a higher value and which we take on behalf of a mere imitation of one. Even worse, the solution is no longer as simple as critically analyzing our values in order to discriminate between which ones are legitimate and which ones are mere simulacra; our genuine higher values have started to emulate the misshapen versions of them embodied by our models. The Baudrillardian fall from grace notably has two distinct steps: First, the models of our values (in this case our political parties) seem to operate completely independently from, and often in contradiction with, our actual values. Second, in a more sinister fashion, our values themselves are altered in a manner that breeds incoherence and an inability to grasp the inconsistencies in our beliefs. This transmutation occurs, on Baudrillard’s account, through media culture (7). This fits nicely with my argument, as it seems overwhelmingly obvious that the media is now inextricably entwined with politics, meaning our political ideology is especially susceptible to modification by mass media. For those readers who are skeptical about the weight Baudrillard and I are assigning to media culture, I will justify this further on in this paper. For now, however, I will provide some evidence that the process I have just described is in fact reflective of our society. First, consider America’s involvement in the ongoing conflict between Israel and Palestine. For the fiscal year 2021, the Trump Administration sought $3.8 billion to support Israel’s military spending (8). Theoretically, this should be a big concern for Republicans. Since the reduction of taxes and minimization of governmental scope are undoubtedly two of the main goals of conservatism, and purportedly the Republican Party, it seems as though the Party ought to support decreasing tax-funded aid to Israel. And yet, studies show that the vast majority of Republicans believe that Trump has “struck the right balance” in dealing with the Israeli-Palestinian conflict (9). As we can see, even if reducing our financial assistance to Israel is in the best interests of conservatism, self-identified conservatives consistently act contrary to this because that is what their party leaders convey to them. A Republican might object to this characterization, on the grounds that America has a responsibility to intervene in areas where it has deemed human rights violations are occurring. But if that is the case, then how can the Republican simultaneously support the construction of a border wall designed to prevent persecuted Latin Americans from fleeing for their lives? (10). The significance of all this is that the status of our higher values, in relation to their models, becomes dubious. This issue seems to mimic the first step quite clearly in our Baudrillardian process. The U.S. support of Israel is but one example of this phenomenon wherein actions resulting from our models are completely separate from the actions that would normally be dictated by our higher values. Next, let’s discuss an example of the second step of the Baudrillardian framework. Firearm legislation is another controversial issue in America at the moment, with various groups holding drastically different positions on whether one has the right to bear arms. Through this issue, I hope to demonstrate the ways in which the incoherence of higher values can lead to illogical stances on both ends of the political spectrum. When it comes to gun control, conservatives are generally in favor of fewer restrictions. This is largely consistent with core conservative beliefs, such as minimizing government input on private lives and preserving the liberties provided by the second Amendment. As a matter of fact, widespread gun ownership is not only morally permissible but even necessary , many conservatives say, in case the state ever decides to infringe on the rights of its citizens or coerce them without due cause. For the conservative, guns are thus a mode through which the individual can retain power over the state. So far, nothing seems wrong. But issues arise when other beliefs, supposedly in line with the same brand of conservatism, are added to the mix. While retaining this belief in the need, and indeed the moral right, to protect oneself from an unjust state as one sees fit , conservatives in America today are also associated with the position that it is unpatriotic and morally reprehensible to kneel during the anthem or otherwise protest the brutality and violence that occurs through the arm of the state, i.e., the police. It seems to me that simultaneously holding these two beliefs is something that is very difficult, if not impossible, to maintain. And yet, these are often considered standard conservative and Republican positions in our society. Contemporary liberals do not fare much better when their higher values are analyzed in this context. For the liberal, government institutions in America have a long history of systemic racism and oppression of minorities and lower classes. Such institutions thus ought to be overhauled or rectified, the logic goes, in order to form a society that reflects more liberal values. Yet at the same time, there is a common liberal view that guns are instruments of death and should be withheld from all except government employees who require them for their job, such as police officers and military personnel. But this view seems to remove an opportunity for the individuals oppressed by the state to gain power, and instead places that power squarely in the hands of the oppressors. The liberal cannot have their cake and eat it too; to believe that the police should be defunded because of their routine violence against the people they ought to be protecting, and simultaneously believe that the state should have full authority and exclusive control over all firearms, seems problematic at best. Even if the liberal attempts to avert this problem by going even further and asserting that nobody should own a gun, then a similar problem arises. It is still the same oppressive and racist state that takes guns away from people. It is still the same state that ultimately retains the power in this scenario. These are just some ways in which our higher values have begun to show signs of incoherence. Unlike our first step, this second step is no longer just a matter of us acting in line with our models while wrongly believing that they are reflections of what we ultimately value. If we could stop after the first step, there would still be a dim hope of redemption. If one can be shown the inconsistencies between their values and the actions of their party, it seems as though they can revise their mode of life. But the incoherence of the second step is far more deadly. Our higher values themselves are being changed; they are becoming muddled and losing intelligibility rapidly. Recommitting oneself to one’s values when faced with inconsistency is already exceptionally difficult but refashioning one’s values when faced with complete incoherence is even more demanding. Gun control is just one example of this, but these types of discussions all beg the same question: Are conservatives and liberals determining what their party stands for, or is it their parties that are deciding what the ideology stands for? It may be, in the words of Baudrillard, “no longer a question of imitation, nor duplication, nor even parody. It is a question of substituting the signs of the real for the real” (11). This Baudrillardian diagnosis of society is explained by many factors, but primary among them is the rise of media culture. Overwhelmingly, the types of media we consume has come to define what it means to be social in our culture. The interactions we have with friends, family members, significant others, strangers, all are determined by the media we absorb. Take romantic encounters, for instance. The ways in which we decide how we ought to act towards our partners, what sort of romantic gestures are considered socially acceptable, what kind of boundaries we set, are all largely, if not entirely, defined by what we have seen in social media, films, television, advertisements, and so on. One need look no further, Baudrillard says, than to observe that, “whoever is underexposed to the media is desocialized or virtually asocial” (12). Such a state of affairs would be fine, of course, if most forms of media faithfully represented and depicted our higher values, but the opposite seems to be the case. Consider the social phenomena commonly referred to as “virtue signaling” or “performative activism.” In particular, let us contemplate the cases in which one virtue signals without actually doing much to pursue that virtue. In cases like these, many remain unaware of their hypocrisy and nonetheless believe that they act virtuously when, in fact, they are merely presenting the facade of virtue. The mere posting of a black square on one’s Instagram account without any further action to support African American communities comes to mind as a relevant example of this. One might say that all individuals who engage in such signaling do so consciously—they are aware that they are “faking it” in order to achieve popularity, acceptance into a social group, or something of this nature. But this seems like an overly pessimistic claim, and I would characterize the phenomenology of such individuals differently. I would argue that most people that act in these ways genuinely believe that they are pursuing their ideal of a virtuous life. They do not recognize that their virtues (which are closely related to, if not synonymous with, their higher values) are not informing their actions. Rather, they are acting according to the media-warped model of what it means to instantiate that virtue. To make this more concrete, take the notion of equality to be a higher value or virtue that one strives towards. If equality was truly what was informing the behavior of the virtue signaling person, then such a person would seemingly recognize that their actions are not satisfying that higher value. Thus, it seems much more likely that what the virtue signaler is motivated by is not the pure higher value of equality, but rather an incoherent version of it altered by media culture. The people who post black squares on their Instagram and then go about their daily life feeling excellent about their stand against police brutality and institutionalized racism certainly feel as if they have higher values (e.g., equality, liberalism), but such values have been rendered incoherent. The proof of this incoherence is of course that their higher values are (even partially) satisfied by trivial actions that provide no substantive change in one’s way of life or the world. In addition, as referenced earlier, such people do not experience the tragic feelings that are meant to accompany conflict between higher values because they do not recognize that such conflict exists in the first place. We can perhaps judge from the outside that there seems to be an objective disconnect between these people’s purported higher values and their actions, but the growing incoherence of their values prevents the perpetrators themselves from coming to the same conclusion. At this juncture, one might object that if our higher values have become so vacuous that they can be fulfilled by such superficial action, then it is likely that they are not higher values at all anymore. In this regard, it would seem that we have ultimately returned to Nietzsche’s hypothesis and lost our higher values entirely. To this I would reply that these incoherent higher values may very well be vacuous, but they retain their status, nonetheless. Political ideology, for instance, still instantiates all the higher value criteria, as I have discussed. What this shows is that our immediate societal condition is distinct from that of the last man. We still have the capacity to cherish things in all the right ways and set goals for ourselves beyond immediate gratification, it is just that the things we cherish and the goals we set may be severely distorted. Now that we have touched on how our current situation is different from the last man, a question naturally arises: What would Nietzsche say about the state of our political ideology? When it comes to politics, Nietzsche is remarkably silent. Try as one might, it is rare to find Nietzsche discussing political ideology at great length. Though he is often found criticizing democracy as a “conspiracy of the whole herd against [its] shepherd,” this does not amount to much in the form of a distinct political structure (13). We also get some cryptic allusions to the merits of a natural order-based caste system in The Antichrist , but this discussion seems less about the desirability of the castes and more about how even this sort of ideology is preferable to the life-negating belief system that characterizes Christianity (14). Rather than focusing on political structures in service of the many, it seems like Nietzsche was more interested in particular individuals that could serve as paragons of vice or virtue. Napoleon is an oft-cited example of someone Nietzsche admired very much, going so far as to name him one of the “profound and largeminded men of [the] century” (15). But Nietzsche’s view of Napoleon as a higher man could justify an entire paper by itself, and such analysis is not particularly relevant to our discussion of higher values. Rather than present Nietzsche’s (scarce) ideas on political ideology, it seems more fruitful to examine how concepts like the death of God might have led to our current predicament. Nietzsche, of course, saw the loss of higher values as a direct result of the absence of a divine entity able to furnish our choices and goals with meaning. But what may be more potent than the loss of objective meaning is the loss of the structure installed by that divinity. Organized religion generally aims to provide a clear system concerning the fulfillment of our higher values. It lays out, for instance, what constitutes a sin, how to worship properly, and so on. Ergo, religion serves to enforce a uniformity between our actions and our values. It is fundamentally designed not to allow individuals to both violate their own higher values and escape with a morally sound conscience. But without religion, this necessity for consistency between our higher values and our behavior is damaged. There is no eternal damnation, no divine punishment, no karmic justice to threaten us to maintain such cohesion, and so we lose it. What all of these topics have in common, from virtue signaling to contradictory stances on gun control, is the apparent inconsistency in the higher values that allow such behaviors to take place. Ultimately, I would suggest that the path the individual in contemporary American society has taken is distinct from the condition of the last man that Nietzsche fears. Higher values persist, as I have endeavored to show, but the logical consistency required to fulfill them properly seems to be rapidly deteriorating. Nevertheless, if one wishes to remain compatible with Nietzsche’s theory, then we could perhaps frame the current state of society as merely one of the final steps on our inevitable trajectory to becoming last men. After all, it does seem plausible that the degeneration of the coherence of our highest values will eventually lead to the loss of them entirely. Such an understanding does raise some concerns, however, as discarding our higher values (“believing in their untenability” as Nietzsche puts it) seems to require one to be aware of their unintelligibility. Insofar as we have reached a state where our higher values no longer even need to be consistent in order for us to act on them, one can wonder whether we will ever collectively reach a position where we realize the inconsistencies exist so deeply in our higher values that they must be abandoned altogether. Still, there is certainly a Nietzschean argument to be made that there must be a limit to how incoherent our higher values can get before we rid ourselves of them in disgust. As it stands now, even though our higher values have garnered significant incoherence, they can still be said to represent us faithfully for the most part. For example, though issues like gun control demonstrate some glaring problems that require rectifying, I would argue American liberals and conservatives still tend to largely act on the values at the core of their ideology. Single-payer healthcare is a good instance of this: Liberals largely support it on the basis of their beliefs about equality and human rights, while conservatives largely do not because it would result in less individual freedom and greater taxes (16). Thus, though I have spent the majority of this paper painting quite a dismal picture, our higher values do not seem close to collapsing entirely. We may not have to resign ourselves to the fate of the fabled boiling frog, insofar as the coherence of our higher values continually gets worse without us noticing. One could certainly make a compelling case that when the incoherence gets to a stage where it overwhelms the proper functioning of our higher values, we will desert them. At such a juncture, it appears we would have no choice but to become last men. At any rate, if one is really committed to the Nietzschean hypothesis, one could call the state we are currently inhabiting that of the “penultimate man” (or better yet penultimate person, for the sake of inclusivity and alliteration). Endnotes 1 Friedrich Nietzsche, et al., Writings from the Late Notebooks , (Cambridge University Press, 2016), 205. 2 Friedrich Nietzsche and Walter Kaufmann, The Gay Science: With a Prelude in Rhymes and an Appendix of Songs: Translated, with Commentary by Walter Kaufmann, (Random: 1974), 343. 3 Friedrich Nietzsche, et al, Nietzsche: Thus Spoke Zarathustra , (Cambridge University Press, 2006), 129. 4 Ibid, 130. 5 Paul Katsafanas, “Fugitive Pleasure and the Meaningful Life: Nietzsche on Nihilism and Higher Values: Journal of the American Philosophical Association,” Cambridge Core , (Cambridge University Press, 2015), 9-11. 6 Jean Baudrillard and Sheila Faria Glaser, Simulacra and Simulation , (University of Michigan Press, 2019), 2. 7 Glenn Yeffeth, Taking the Red Pill: Science, Philosophy, and Religion in the Matrix , (Benbella Books, 2003), 74. 8 U.S. Foreign Aid to Israel , Congressional Research Service, 2020, fas.org/sgp/crs/mideast/RL33222.pdf. 9 “U.S. Public Has Favorable View of Israel's People, but Is Less Positive Toward Its Government,” Pew Research Center - U.S. Politics & Policy , 2020, www.pewresearch.org/politics/2019/04/24/u-s-public-has-favorable-view-of-israels-people-but-is-less-positive-toward-its-government/ . 10 Suzanne Gamboa, et al., “Why Are so Many Migrants Crossing the U.S. Border? It Often Starts with an Escape from Violence in Central America,” NBCNews.com , 2018, www.nbcnews.com/storyline/immigration-border-crisis/central-america-s-violence-turmoil-keeps-driving-families-u-s-n884956 . 11 Baudrillard andGlaser, Simulacra and Simulation , 2. 12 Ibid, 55. 13 Friedrich Nietzsche, The Antichrist, (Auckland, NZ: Floating Press, 2010), 67. 14 Ibid, 57. 15 Friedrich Nietzsche, Beyond Good and Evil , (New York, NY: Dover Publications, 1998), 256. 16 Bradley Jones, “Increasing Share of Americans Favor a Single Government Program to Provide Health Care Coverage,” Pew Research Center , 2020, www.pewresearch.org/fact-tank/2020/09/29/increasing-share-of-americans-favor-a-single-government-program-to-provide-health-care-coverage/ . Bibliography Baudrillard, Jean, and Sheila Faria Glaser. Simulacra and Simulation . University of Michigan Press, 2019. Gamboa, Suzanne, et al. “Why Are so Many Migrants Crossing the U.S. Border? It Often Starts with an Escape from Violence in Central America.” NBCNews.com , NBCUniversal News Group, 22 Oct. 2018, www.nbcnews.com/storyline/immigration-border-crisis/central-america-s-violence- turmoil-keeps-driving-families-u-s-n884956. Jones, Bradley. “Increasing Share of Americans Favor a Single Government Program to Provide Health Care Coverage.” Pew Research Center , Pew Research Center, 30 Sept. 2020, www.pewresearch.org/fact-tank/2020/09/29/increasing-share-of-americans-favor-a-single- government-program-to-provide-health-care-coverage/ . Katsafanas, Paul. “Fugitive Pleasure and the Meaningful Life: Nietzsche on Nihilism and Higher Values: Journal of the American Philosophical Association.” Cambridge Core , Cambridge University Press, 22 Sept. 2015, www.cambridge.org/core/journals/journal-of-the-american- philosophical-association/article/abs/fugitive-pleasure-and-the-meaningful-life-nietzsche-on- nihilism-and-higher-values/449B756CD8E5DC8139A701AC195F33F8. “Most Border Wall Opponents, Supporters Say Shutdown Concessions Are Unacceptable.” Pew Research Center - U.S. Politics & Policy , Pew Research Center, 21 Aug. 2020, www.pewresearch.org/politics/2019/01/16/most-border-wall-opponents-supporters-say- shutdown-concessions-are-unacceptable/. Nietzsche, Friedrich. Beyond Good and Evil . Dover Thrift Editions. New York, NY: Dover Publications, 1998. Nietzsche, Friedrich, and Walter Kaufmann. The Gay Science: With a Prelude in Rhymes and an Appendix of Songs: Translated, with Commentary by Walter Kaufmann . Random, 1974. Nietzsche, Friedrich, et al. Nietzsche: Thus Spoke Zarathustra . Cambridge University Press, 2006. Nietzsche, Friedrich, et al. Writings from the Late Notebooks . Cambridge University Press, 2016. Nietzsche, Friedrich Wilhelm. The Antichrist. Auckland, NZ. Floating Press, 2010. U.S. Foreign Aid to Israel . Congressional Research Service, 16 Nov. 2020, fas.org/sgp/crs/mideast/RL33222.pdf. “U.S. Public Has Favorable View of Israel's People, but Is Less Positive Toward Its Government.” Pew Research Center - U.S. Politics & Policy , Pew Research Center, 30 May 2020, www.pewresearch.org/politics/2019/04/24/u-s-public-has-favorable-view-of-israels-people-but- is-less-positive-toward-its-government/. Yeffeth, Glenn. Taking the Red Pill: Science, Philosophy, and Religion in the Matrix . Benbella Books, 2003. Previous Next

Editorial board Foreword Volume I Issue I Introducing the inaugural issue of JPPE The ambition to start an international, interdisciplinary, academic journal of philosophy, politics, and economics was one that emerged as much as a consequence of a desire to take a new approach to undergraduate scholarship as it was motivated by an affinity for an old idea: ‘philosophy, politics, and economics’ (PPE). PPE is famously a product of the University of Oxford, which, in the 1920s, began to amalgamate the three disciplines into a single degree that could provide a strong, yet broad foundation for future policymakers. And in this regard, the program succeeded. Many major British politicians and public figures—from the Labour Party’s Ed Miliband to Former Prime Minister David Cameron to Christopher Hitchens—studied PPE at Oxford. It is important when considering the emergence of PPE, however, to recall the relative radicalism of the concept at the historical time period in which it emerged. Just as the Russian Revolution came to a close and the First World War left Europe devastated, the United Kingdom began to experience high unemployment. It was in this context of political strife, growing inequality, and seemingly insurmountable threats to global peace and human livelihoods that PPE emerged as a concept that could help spur the thoughtful ethical, political, and economic decisions that might affect positive change. And yet, despite the success of Oxford’s PPE program and the stunning propensity of the program’s top graduates to take seat in British Parliament today, it has not crossed the Atlantic to achieve the same popularity. Much of this is a consequence of a particularly English affinity for generalists; however, whatever the reason, this Journal holds that the failure for PPE to take off in the United States has been a shame. Though PPE has been criticized at times as an academic experience that produces broad knowledge as opposed to deep knowledge, the interdisciplinary program is, at its core, the single most effective tool to analyze modern circumstance as a social scientist. Brown University, to its credit, has seen nascent developments in PPE programming. Every year, students look to pursue Independent Concentrations that mimic Oxford’s program, and the Philosophy, Politics, and Economics Society, which, like this Journal, is sponsored by the Political Theory Project, highlights this growing trend. We created the Brown University Journal of Philosophy, Politics, and Economics to encourage the growth in PPE-related academic work on Brown’s campus and, most importantly, to provide young people with a space to debate and put forth academic arguments that can kindle the discussions that ultimately transform communities and entire democracies. In achieving in this end, our Journal dedicates itself to five guiding principles. First, we value interdisciplinary understanding. By shifting toward a more broad approach to social sciences, the debates, which are too often compartmentalized, are made more accessible and inclusive. In each issue of JPPE, we aim to highlight the best economic arguments alongside the best philosophical and political arguments. This could for instance illustrate, at once, the ways in which a discussion of the minimum wage can be understood as a question of economic efficiency and as a question of political feasibility, as well as a moral proposition that asks important questions about the permissibility of income inequality. What results from this is not a dearth of deep knowledge, but rather a broad understanding in which the sum is greater than each of its individual parts. The bold idea of this Journal stems from a belief that the lenses of philosophy, politics, and economics are not only useful to considering contemporary circumstance. They are all essential. Second, we value diversity. In order to create a space that effectively reflects the character of contemporary debate among young people, as well as the issues most motivating the next generation of leaders and thinkers, it is essential that diversity of views and backgrounds are highlighted. As a non-partisan publication, we strive to highlight a range of political arguments so long as they are rigorous, thoughtful, and conceived in good faith. And though our Journal selects submissions name-blind, we are committed to promoting an inclusive environment for all our employees, welcoming staff members regardless of ethnic origins, gender, religious beliefs, disability, sexual orientation, or age. This doesn’t just make us a more responsible organization, it makes us a better journal. Third, we value academic rigor. As an academic publication, we are committed to publishing the highest levels of student scholarship, and we require that submissions be well written, well argued, well researched, and innovative. In creating this Journal, however, our publication’s founders recognized the limits of undergraduate experience and knowledge as a means to assess the quality of scholarship. For this reason, our Journal is peer-reviewed, receiving guidance and feedback on what essays to publish from a team of over 25 eminent scholars. Fourth, we value free thinking and original arguments. Though many essays we receive are pieces that have been written for a classroom environment and thus may be confined to answer a particular array of questions in a smaller paradigm than academics might, we have been consistently impressed by the unique ideas students have put forth. It is the aim of our Journal to highlight these pieces of original analysis, which are too often tucked away into the cupboards of forgotten undergraduate work. Fifth, we value and desire to play an integral part in stimulating global leadership among young people. Though we are an academic publication, we aspire to influence discussions among undergraduates that can help spur re-evaluation, action, and change. In placing an emphasis on global leadership, we recognize that the real value of our Journal comes less through the answers our authors provide than through the discussions they encourage and the audacity of the ideas they propagate. The inaugural issue of our Journal you are now reading perfectly reflects our five guiding principles. In “A More Perfect Union”, for instance, the author encourages readers to more closely analyze the relationship between liberalism and national unity, pondering how a liberal democracy should best understand its relationship to patriotism. And in the “Latent Effects of Cannabis Legalization”, we publish original research on the criminalization of marijuana and its disproportionate effects on black communities. This edition also features pieces from two significant American leaders: Providence Mayor Jorge Elorza and Louisville Mayor Greg Fischer. Both mayors are important figures on the frontlines of local policy that seeks to make economic growth in the 21st century more inclusive and competitive, reducing the barriers to entry and ordinances that too often discourage participation in the American economy and in our democracy. We asked both mayors to highlight their achievements on this front not only as a means to highlight examples of effective local policy implementation, but also in order to more profoundly integrate the literature of future leaders with the work already being done by current leaders. We believe that all of these elements have helped us put forth a powerful combination of essays, and we hope JPPE will be a place where young people can go to consider new ideas and offer innovative solutions to addressing today’s ethical, economic, and political challenges. Our team is united by a shared love of argument, problem solving, and a deeply felt desire to help contribute to conversations that can so greatly impact livelihoods. And in a time where the world is rapidly changing, as forces like technological disruption, globalization, climate change, and political polarization threaten to vastly alter our human experience this century, young leaders will undoubtedly be called upon to develop new ideas to solve the challenges we face. JPPE aims to both facilitate and be a part of this great conversation.

Author Name < Back The Relationship Between Education and Welfare Dependency Aiden Cliff Abstract Several studies have described the correlation between welfare dependency and factors such as welfare conditionality, gender, and high school or college graduation rates. Using Annual Social and Economics Supplement Data (ASEC) from 2009 through 2019, downloaded from sources such as IPUMS CPS, this paper crafts an OLS regression model to find the relationship that years of completed education have on welfare dependency status. This paper concludes that there is a negative correlation between higher education levels and lower participation in the welfare system, with the completion of one additional year of schooling suggesting a decrease in the probability of needing welfare by 0.1%. While this correlation is small, it is still statistically significant in the linear probability model due to a large sample size (n = 145,431). After adding other explanatory variables, such as measures for race, biological sex, and employment status to control for endogeneity, further regressions confirm that there is still a statistically significant negative relationship between education and welfare dependency. These results suggest that policymakers should focus on educational subsidies over welfare subsidies to increase social mobility. I. Introduction Education is often referred to as an essential mechanism in promoting social mobility (Haveman, 2006). However, the rising costs of education in America have forced many individuals to require more income to pay off student loans. As a result, families who are enrolled in welfare programs are spending a larger portion of their income on student debt, correlated with an increased reliance on such welfare programs and a positive feedback loop that makes it more difficult to climb out of welfare dependency (Johnson, 2019). In addition, most welfare programs have substantial requirements that, rather than helping recipients to get out of poverty, restrain recipients from escaping the welfare system (Rupp et al, 2020). This, and other societal pressures, have forced lots of students to put a pause on their education and work at low-skilled jobs with minimal pay, keeping them reliant on welfare programs (Johnson, 2019). This vicious cycle will only cause more people to remain trapped within welfare programs, preventing them from escaping poverty and improving their livelihoods. Previous studies have shown that education levels are correlated with the probability of a welfare recipient returning to welfare in the future (London, 2008). Other studies have also shown how changes in the welfare system have improved welfare recipients' education qualifications and subsequently their employment opportunities (Hernaes, 2017). London’s (2008) study focused on how attaining a higher educational degree allows welfare recipients to improve their employment opportunities, reduce their welfare dependency, and reduce their overall family poverty levels by 63%. Meanwhile, Hernaes et.al (2017) found that more conditionality in welfare programs helped Norwegian teenagers from welfare-recipient families reduce their reliance on welfare programs; and lower the country’s high school dropout rate by 21%. In addition, Pacheo & Maloney (2003) found that intergenerational welfare participation differs between genders due to family characteristics such as household size and parents’ welfare dependency. As a result, young females tend to have lower educational attainment and are nearly two times as probable of relying on welfare in the future when compared to their male counterparts (Pacheo et al, 2003). Based on the insights offered by the studies above, this paper aims to contribute to this field by investigating the hypothesis that years of schooling completed reducing the probability of receiving welfare in the future. Factors of endogeneity will also be analyzed through the implementation of explanatory variables such as race (Courtney, 1996), sex (Bakas, 2014), number of children (Arulampalam, 2000), marital status (Hoffman, 1997), hours worked (Bick et al, 2018) and employment status (Arranz, 2004) into the regression model. These variables were chosen due to past publications finding possible links between this psychographics and demographics to welfare benefits. Preliminary hypotheses predict that there will be a negative relationship between the education level attained and the probability that an individual will receive future welfare. Using simple and multi-linear OLS regression analysis and the IPUMS-CPS annual data from 2009-2019, it has been observed that individuals with more years of schooling completed are less likely to be on welfare in the future. Data was chosen from this period because the American economy was beginning to recover from the 2008 Financial Crisis during this time. This allows us to observe correlations between education levels attained by individuals and whether they ended up in welfare programs more clearly. This paper will be presented as follows: Section II will cover previous research on how welfare conditionality, gender, and education levels affect welfare dependency. Section III will present information on how this data was obtained and explain the data-cleaning process along with the types of variables used throughout this paper. This section ends with explanations of how the data is verified through the four OLS assumptions. Section IV will cover econometric methodology which includes alternate functional forms explored and additional X-Variables tested through multiple regression along with methodologies we’ve used to control the endogeneity of independent and explanatory variables to ensure the fairness of the regression model. Section V highlights the results, the sample regression line, and statistically significant information regarding the regression analysis. Section VI contains the paper's conclusions where the results are evaluated and put into context within the field. The paper concludes with section VII, the appendix, where all tables, figures, diagrams, and supporting calculations are represented for reference. II. Literature Review The literature works that are presented here serve as important foundations in the field and provide extensive insight into the relationship between welfare dependency and education levels, along with how other variables might affect this relationship. The study conducted by Hernaes et al. (2017) found that the strict welfare conditionality, linking welfare to certain characteristics or traits in Norwegian welfare programs, has reduced welfare dependency while increasing the high school graduation rate among Norwegian welfare recipients. In the process, they used a logarithmic regression model (LRM) and regressed a dependent dummy variable that identifies welfare recipients who are 21 years old onto an independent variable that consists of family characteristics such as parent’s education background and cumulative income, to control for endogeneity. The study resembles this approach because the dependent variable that they’ve used is also a dummy variable that indicates welfare recipients. In addition, the study used other explanatory variables, in particular the recipient’s parental background, to control for the endogeneity of those variables on the probability of returning to welfare. However, Hernaes et al. (2017) emphasizes how family background affects teens’ probability of returning to welfare in the future through explanatory variables that focus on family characteristics. Whereas this study focuses more on how other individual characteristics such as education level, labor condition, and family status of the welfare recipient have affected the welfare recipient’s probability of returning to welfare programs in the future. Notably, a previous study indicated that there is a correlation between welfare recipients who have obtained a higher education degree with reducing their reliance on welfare programs, but only if they receive additional financial aid to support their college expenses. London (2006) uses data such as college attendance, college graduation rate, and personal characteristics, such as extraversion and race demographics, to predict the welfare recipient’s three outcomes: employment, return to aid, and poverty status. By controlling influencing factors that change over time – such as the rate of college enrollment – and making sure all omitted variables, – such as familial culture and personal motivation – are factored into the result, the study employs instrumental variable econometric models to calculate predictions. The study found that “college attendance, more than graduation, is an important predictor of future employment. At the same time, college graduation better predicts the probability of returning to aid or being poor within five years of leaving welfare” (London, 2006, p. 491). Specifically, the study quoted “college graduation rather than enrollment without graduation has an effect on recidivism, and only in the five-year interval” (London, 2006, p. 489). Their findings support this hypothesis that the education level a welfare recipient attains is crucial to the probability of returning to welfare in the future. Despite the similarities in the use of variables to investigate the issue, predicting the probability of return to welfare using college graduation and attendance is only a part of this study’s objectives. The study also conducts an investigation into how college graduation and attendance affect employment opportunities and family poverty levels. Another earlier study showed that genders might have different levels of welfare participation and education attainment. Pacheco & Maloney (2003) learned that females “have an estimated intergenerational correlation coefficient that is more than double that for males.” (Pacheco & Maloney, 2003, p. 371). The study uses simple regression models and inputs such as the number of years in formal education completed by age 21, family background characteristics (parent’s education qualifications and the number of children in the household), and the proportion of years where parents obtain welfare benefits to produce their findings. In addition, Pacheco & Maloney (2003) found that female welfare recipients whose families have a history of welfare dependency tend to remain in welfare programs. The study uses the same regression model to offer insight into how familial and cultural forces affect male and female probabilities of returning to welfare in the future. Nevertheless, Pacheco & Maloney (2003) offered insight into how gender might have altered the relationship between education levels and probability in return to welfare. III. Descriptive Statistics All of the raw data was downloaded directly from the CPS portion of the IPUMS website, which is a reputable federal source for time series and cross-sectional data. Annual Social and Economic Supplement Data (ASEC) from 2009 to 2019 was downloaded. These years were selected to obtain the most up-to-date data while also analyzing enough observations to create the best regression analysis possible. Twenty-one variables were analyzed within these years, the most important of which were EDUC and INCWELFR, the two variables that were altered and then used for the regression analysis. These variables were raw and included nearly 150,000 observations over the 11 years. The data was meticulously cleaned before running any regressions to test the hypothesis. The first variable cleaned was EDUC. The raw EDUC variable could hold any coded value from 1 to 125. These coded values did not reflect the true years of schooling any individual had, so a new variable was created: EDUC_REV, to accurately reflect the true years of schooling each individual has completed. The values for this new variable were generated using the observations for the EDUC variable alongside the specific numeric code utilized by CPS. For example, an individual who has obtained a high school diploma through 12 years of completed education would receive a value of EDUC=73 within the CPS data set. The data was cleaned so this specific value would now be EDUC_REV=12. This cleaning procedure was used for all possible levels of education within the data set. Individuals who were too young to receive any education at all were also removed from the data set (they were identified through EDUC=1 in the original data set). The focus then shifted toward the INCWELFR variable from CPS. This variable measures the dollar value of the income an individual receives from any source of government welfare benefits. In this study, the focus is on the effect that education has on the reception of welfare at all, not the amount of welfare that was received. This means the analysis is valid if an individual receives any form of welfare payments, and not focusing on the actual dollar value of said payments. So, for this reason, another new variable was created: WELFARE. This variable is a dummy variable that gets its values from the information in the INCWLFR variable. If the individual receives no form of welfare they will be assigned INCWLFR=0 in the data set. This same individual would be assigned a value of zero for the newly created variable (WELFARE=0 when INCWLFR=0). However, if an individual receives welfare in any form, regardless of the amount, they will be assigned a value of one for the new variable (WELFARE=1 when INCWLFR>0). Any individual who was not eligible to receive welfare in any form was denoted by INCWELFR=999999. These observations, many of which were individuals under 18, were removed from the data set to generate a less skewed, and more accurate, sample. Additional variables were also analyzed for the multiple regression analysis. These variables tested the effects of not only education, but also employment status, income, hours worked, marital status, gender, and number of children on the reception of welfare. These variables were used to try and control for endogeneity within the model and are further described in Table 1 of the appendix . Before the new variables could be put through a proper regression analysis, the four assumptions of an Ordinary Least Squares Regression Line had to be tested. If all of these assumptions hold true then the estimators of b1 and b2 would be BLUE (Best Linear Unbiased Estimators) and all of the calculations done through STATA would be completely accurate. The first OLS assumption is that the expected error within a sample will be zero. This is noted as E[WELFARE_RES/EDUC_REV]=0 and this does hold true in this sample. The 95% confidence interval for WELFARE_RES does include zero so it is likely that the expected value of the error is zero and therefore the first OLS assumption is met. The second OLS assumption is that the data is homoscedastic. This is noted as Var(WELFARE_RES/EDUC_REV)=Sigma^2. However, since the dependent variable is a dummy variable, this regression takes the form of a linear probability model (LPM). By definition, every linear probability model has heteroscedastic data. Therefore, the second OLS assumption is not met. The third OLS assumption is that the data is free of clustering. This is noted as Cov(WELFARE_RES_i,WELFARE_RES_j)=0, meaning that the value of WELFARE for one value does not directly influence the value of any other observation within the data set. This influence usually occurs when two observations are within the same geographical unit. While there is no way to test if any observations are within the same geographical unit (such as the same household) due to confidentiality, the sample size is large enough and pulls from each region almost equally, so it would be extremely unlikely for any two observations to come from the same household. Therefore, for the sake of the regression, the third OLS assumption will be met. The fourth and final OLS assumption is that Y is normally distributed. This was tested by creating a histogram for WELFARE and seeing if it roughly resembled a bell curve. When this was done, it was obvious that the data was not normal. This is apparent through a multitude of factors but is most clearly shown by the high skewness, a value of over 16. Therefore, it was concluded that welfare was not normally distributed. However, since the sample size consists of 145,431 observations, the central limit theorem (CLT) is met. So, while the fourth OLS assumption failed to be met for this particular regression, it will not have a significant impact on the regression since the sampling distribution for WELFARE will still be normally distributed. In conclusion, the regression met two of the four OLS assumptions. Therefore, while the regression analysis will not be BLUE, it will still be significant since it is free of serious sampling errors. IV. Econometric Methodology While this paper mainly focuses on the linear probability model and the effect that education has on welfare dependency, other functional forms that could better fit the regression analysis were also considered to develop a more thorough analysis. This was done through the experimentation of the functional forms that the independent variable took. While the previous section discussed the linear form of EDUC_REV, exponential and logarithmic forms of this variable were also considered. The independent variable was only altered since the dependent variable is a dummy variable. Altering the value of the variable will not generate any different results since its domain is limited to {0,1}. Other explanatory variables, and the results they produced, are summarized in Table 5 of the appendix. While all of the functional forms tested would have produced statistically significant interpretations that support the hypothesis, although their interpretations would have been different, the original regression was still the most accurate for this particular data set. Other functional forms included EDUC_REV in quadratic, cubic, and log forms. These functional forms are used to emphasize the effects of EDUC_REV in order to match the data points. The original is the most accurate because it has the highest R-Squared value, a measure of how well the data points fit the linear regression line. These R-Squared values can be found in Table 5 but the linear model has the highest value of .0014. Since the linear regression between WELFARE and EDUC_REV has the most accurate regression line relative to the data set, this regression model was the basis from which all conclusions were drawn. Interaction terms were also analyzed by creating the term EDUC_UNEMP which was EDUC_REV multiplied by UNEMPLOYED. By using this interaction term, the possible effect of EDUCATION on WELFARE varying with UNEMPLOYED can be studied. The regression showed that when UNEMPLOYED is 0, the likelihood of WELFARE is constant plus b2. When UNEMPLOYED is 1 then the likelihood of being on WELFARE increases. This means that individuals who are unemployed are more likely to be receiving benefits from welfare. The motive that drives this is individuals who are unemployed do not receive any form of compensation or income outside of their welfare payments. Slope and Intercept dummy variables are additional variables added to this study. In this situation, the intercept dummy variable is UNEMPLOYED. The presence of UNEMPLOYED is represented with a 1 and causes an increase in the intercept, which translates to an increase in the probability of welfare. When describing this relationship on a graph there are two parallel lines and the difference between them is caused by the slope dummy variable. Both lines have the same slope and the probability gap of being on WELFARE remains the same at all levels. This is not the main difference between someone who is unemployed and someone who is employed. This supports the claims made through interaction term analysis in the previous paragraph. However, while the simple regression analysis supports the hypothesis, there could be other confounding variables that underlay such correlation seen between WELFARE and EDUC_REV. If these possible confounding variables are correlated with both WELFARE (controlling for EDUC_REV) and EDUC_REV, then it could make EDUC_REV an endogenous variable, indicating that EDUC_REV does not necessarily cause the decrease in the probability of an individual on welfare. To test this claim, a multiple regression analysis was run, including both EDUC_REV and a variety of other possibly confounding variables, for their possible effects on WELFARE. The results showed that the three variables with the largest effect on WELFARE were BLACK, MALE, and UNEMPLOYED. These are variables created within the data set describing an individual's race, gender, and employment status, respectively. All of these are strong contenders for possible confounding variables and the true reason the regression effect on welfare was observed, and therefore put EDUC_REV at risk of being an endogenous variable (Courtney, 1996; Bakas, 2014; Arranz, 2004). A full list of the additional X-Variables tested along with the multiple regression output can be found in Table 10 . That being said, this is not enough evidence to conclude that education levels are definitely an endogenous variable when describing the probability of receiving welfare. These possible confounding variables could be further analyzed if a more in-depth regression analysis was performed in future studies. V. Results After the data had been completely cleaned and verified for OLS assumptions, the regression of EDUC_REV on WELFARE was run. This regression showed the noncausal effect that years of completed education have on the probability of receiving welfare. If the hypothesis holds true, the Least-Squares Regression Line should have a negative slope, denoting that the more years of education an individual completes, the less likely it is that the individual receives welfare. The output for the regression analysis, as well as the full, scatter plot showing the Least Squares Regression Line for EDUC_REV against WELFARE, can be seen in Table 8 and Table 9 of the appendix. However, these figures can be summarized by the equation for the sample regression: WELFARE_hat = b1 + b2 EDUC_REV t-statistic = -14.27 WELFARE_hat = .015 - .001 EDUC_REV n = 145,431 (SE) (8.08e-4) (5.68e-5) p-value = 0 *** The most important value within the sample regression line for the hypothesis is -.001, or the slope of the regression line denoted as b2. Since b2 is a negative value, there is a negative correlation between the number of years of completed schooling (EDUC_REV) and the reception of welfare (WELFARE). While this value seems too small to have any real effect, it is still statistically significant. This is because the 99% confidence interval for b2 does not include zero because the standard deviation is extremely close to zero based on the large sample size. A hypothesis test at the critical level of .01 was also run to see if the value generated for b2 could be equal to zero. This test gave a critical value for b2 of -14.27 and a probability of B2 being equal to zero of zero. These results lead to the conclusion that it is statistically significant that as EDUC_REV increases, WELFARE decreases within the regression. In conclusion, while increases in education could have a small effect on the probability of relying on welfare, it is still a statistically significant effect. However, this does not prove that increases in education will decrease the probability of relying on welfare since ceteris-paribus does not hold true for this collected data set and a causal relationship is not established. This regression analysis supports the hypothesis that as an individual's education increases, the probability that said individual will rely on welfare as a source of income decreases (since b2 is a statistically significant negative number). By applying these findings, it was determined that as an individual’s years of completed schooling (EDUC_REV) increases by 1 year, the probability that the individual will receive welfare (WELFARE as a dummy variable) decreases by .001 or 0.1%. This is because the slope of the linear regression model, with a dependent dummy variable, is -.001 and the functional form analyzed is a linear probability model. While this relation is not inherently strong, and years of completed schooling do not have a large impact on the probability of receiving welfare, it is still statistically significant. Within the regression, b1 is also statistically significant. The value of b1 in this sample regression line is .015, or an applied .15%. By applying this value to the context of the study, it was found that the probability of an individual receiving welfare given that they have completed zero years of schooling is .15%. This number is positive so it is technically feasible and within the domain of the study. However, it is extremely unlikely that an individual has received zero years of schooling and is also eligible to receive welfare (Stephens, 2014). For this reason, the value of b1 was not a focus within these results. VI. Conclusion As stated above, this study shows a minor, yet the statistically significant, effect of EDUC_REV on WELFARE. These results indicate that there is evidence to support a possible relationship between higher levels of completed education and lower chances of an individual receiving welfare in the future. The thought process behind this regression is that individuals with higher education are more likely to land better jobs and therefore make more money, thus decreasing their need for welfare. While focusing on the simple regression model for the majority of the paper, important results when controlling for endogeneity through a multiple regression model were also found. This multiple regression analysis was performed while controlling for multicollinearity. Since none of these variables share a strong correlation (r > .8) with each other, it is okay to run a regression model with all of these X-Variables. The full correlation results can be seen in Table 11 of the appendix. AIC, BIC/SC, and R_Squared were also analyzed and are summarized in Table 12. Since the multiple regression model has more X-Variables, it has a larger potential to explain any variation in Y and is likely to be a better fit for the data. Even with the introduction of these additional X-Variables, the initial variable tested in the multiple regression analysis, EDUC_REV, was still statistically significant, as seen in Table 10 . Thus, even with controls for endogeneity, there is still a statistically significant negative correlation between the highest level of completed education and the probability of receiving welfare, only strengthening this paper’s claims. In relation to previous studies in part II, this study aligns with London’s (2006) conclusion that welfare recipients who have received a higher education degree have a lower probability of receiving welfare in the future, with the assumption that both genders fit into the conclusion. However, to what extent education attainment is beneficial to both genders and race remains questionable since the data lacked suitable information to investigate how omitted variables might have affected the relationship between the education level attained and the probability of receiving welfare. This paper has also failed to reproduce the findings that Pacheco & Maloney (2003) found. This paper did not control the age and time of welfare received by the recipient, whereas Pacheco & Maloney (2003) did. In addition, Pacheco & Maloney (2003) factors in the background of the welfare recipient’s parents, such as their income received from welfare, educational background, and race. This study, on the other hand, did not factor family characteristics into the regression model. This paper also failed to reproduce the results that Hernaes et. al (2017) produced because the nature of the data is different from Hernaes et. al (2017). First, Hernaes et. al’s (2017) dataset had the location of each welfare recipient’s municipality. The location variable allows Hernaes et. al (2017) to determine whether the welfare recipient was in a municipality that has stricter welfare policies or not. Second, Hernaes et. al (2017) was able to capture each municipality’s level of conditionality through survey responses collected in a report by a research institute. These are some of the features that the data, unfortunately, do not possess. This paper supports the theory that there is a correlation between the highest level of education completed and the probability of receiving welfare. Thus, more educated individuals are less likely to be dependent on welfare. In a broader context, policymakers could use this information to find more effective means for increasing social mobility, rather than investing heavily in welfare payments. Since there is possibly an inverse relationship between education and welfare, the federal government could create a new program to subsidize education rather than simply making payments to disadvantaged citizens. This would provide an economic incentive for individuals who were previously on welfare to attend school, making the entire nation more educated and more productively efficient as a result (Brown et al, 1991). However, while this paper could be used from a policy perspective, there are some drawbacks. The relationship between education and the probability of welfare is not proven to be causal after this analysis. This is because the ceteris-paribus condition does not hold true throughout the data and regression. In addition, this dataset has a limited scope regarding population characteristics. The dataset indicates the highest education level attained by the individual but does not indicate when they achieved that education. For example, some individuals might have dropped out of high school during their youth and returned to complete their high school degree after a long period of time. If that information is also provided in the dataset, that would open new frontiers on how education-level attainment influences the probability of receiving welfare. Before any change is enacted, especially on a governmental level, first proving a causal relationship would be recommended. This paper merely lays the framework for possible studies regarding welfare analysis in the future. This paper did support the hypothesis that as education levels rise, the probability that an individual becomes dependent on welfare decreases. Through the regression analysis, it was determined that there is a small, yet statistically significant, difference that education has on the probability of receiving welfare in the future. This trend could be utilized by policymakers to stimulate education as a means of reducing welfare dependency, creating a population that is not only less dependent on welfare payments, but more educated, and more productive as a result. Note: see "Full Editions," Volume IV Issue I for appendix. VIII. References Arranz, Jose Ma, and Muro, Juan. "Recurrent Unemployment, Welfare Benefits and Heterogeneity." International Review of Applied Economics . 18, no. 4 (2004): 423-41. Arulampalam, W. "Unemployment Persistence." Oxford Economic Papers . 52, no. 1 (2000): 24-50. Bakas, Dimitrios, and Papapetrou, Evangelia. "Unemployment by Gender: Evidence from EU Countries." International Advances in Economic Research. 20, no. 1 (2014): 103-11. Bick, Alexander, Fuchs-Schündeln, Nicola, and Lagakos, David. "How Do Hours Worked Vary with Income? Cross-Country Evidence and Implications." The American Economic Review. 108, no. 1 (2018): 170-99. Brown, Phillip, and Lauder, Hugh. "Education, Economy and Social Change." International Studies in Sociology of Education. 1, no. 1-2 (1991): 3-23. Cliff, Aiden, Rupp, Matthew, Lieng, Owen. “ A Study on the Relationship Between Education and Probability to Receive Welfare Assistance.” Boston University (2020): 204 Courtney, ME. "Race and Child Welfare Services: Past Research and Future Directions." Child Welfare. 75 (1996): 99. Gooden, S. (2000). Race and Welfare. Journal Of Poverty , 4 (3), 21-24. https://doi.org/10.1300/J134v04n03_02 Haveman, Robert, and Timothy Smeeding. "The Role of Higher Education in Social Mobility." The Future of Children 16, no. 2 (2006): 125-50. Accessed April 28, 2021. http://www.jstor.org/stable/3844794 . Hernæs, Ø., Markussen, S., & Røed, K. (2017). Can welfare conditionality combat high school dropout. Labour Economics , 48 , 144-156. https://doi.org/10.1016/j.labeco.2017 . 08.003 Hoffman, Saul. "Marital Instability and the Economic Status of Women." Demography 14, no. 1 (1977): 67-76. Johnson, D. (2019). What Will It Take to Solve the Student Loan Crisis. Harvard Business Review. Retrieved 29 April 2020, from https://hbr.org/2019/09/what-will-it-take-to-solve-the-student-loan-crisis . Kim, Hwanjoon. "Anti‐Poverty Effectiveness of Taxes and Income Transfers in Welfare States." International Social Security Review. 53, no. 4 (2000): 105-29. London, R. (2005). Welfare Recipients' College Attendance and Consequences for Time-Limited Aid. Social Science Quarterly , 86 , 1104-1122. https://doi.org/10.1111/j.0038-4941.2005.00338 . London, R. (2006). The Role of Postsecondary Education in Welfare Recipients' Paths to Self-Sufficiency. The Journal Of Higher Education , 77 (3), 472-496. Retrieved 28 April 2020, from https://www.jstor.org/stable/3838698 Pacheco, G., & Maloney, T. (2003). Are the Determinants of Intergenerational Welfare Dependency Gender-specific. Australian Journal Of Labour Economics , 6 (3), 371-382. Retrieved 28 April 2020, from https://www.researchgate.net/ publication/46557521_Are_the_Determinants_of_Intergeneration al_Welfare_Dependency_Gender-specific Stephens, Melvin, and Yang, Dou-Yan. "Compulsory Education and the Benefits of Schooling." The American Economic Review. 104, no. 6 (2014): 1777-792.

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown Journal of Philosophy, Politics & Economics Volume IV, Issue II scroll to view articles current issue Philosophy Interpersonal Remembrance and Mnemonic Wronging Andrej Gregus Shoring Against Our Ruin An Investigation of Profound Boredom in our Return to Normal Life Virginia Moscetti Unwitting Wrongdoing The Case of Moral Ignorance Madeline Monge Read More Politics Refuting the myth of progressive secularism An Analysis of the Legal Frameworks Surrounding Religious Practice in France and Bahrain Bridget McDonald Ronald Reagan and the role of humor in American movement conservatism Abie Rohrig Read More Economics The relationship between education and welfare dependency Aiden Cliff Against the Mainstream How Modern Monetary Theory and the Myth of Millionaire Tax Flight Challenge Conventional Wisdom Justin Lee Read More Applications for JPPE will resume in the fall! See Available Positions