Civil Rights Lawyer Hall of Famer Steve Pollak/Three different approaches to constitutional interpretation in the CFPB v. CFS

 

This week’s post is on two distinct subjects. For weeks I have planning to publish a post about the concept of a Civil Rights Lawyer Hall of Fame because of events this week commemorating the “Hall of Famer” Steve Pollak. Then last Thursday the Supreme Court issued its decision on the constitutionality on how Congress funds the Consumer Financial Protection Bureau, and I was moved to write about the three different approaches to constitutional interpretation adopted by the seven-member majority and what I find significant about that. I debated which should come first because in talking to readers of Justice Blog some prefer the posts containing legal analysis and others prefer the ones where I write on other subjects. I am going to write in order of when I first thought of the post. I am using asterisks to split the posts if you are only interested in one of them.

A few years ago, I moderated a panel about the Freedom of Information Act (FOIA). Whenever I moderate a panel and I do not know the panelists, I try to read about them. In doing my research, I found that two panelists were members of the National FOIA Hall of Fame. As a huge sports fan, I began immediately intrigued because seemingly every sport that has been around for more than a few years has a Hall of Fame. And I started to think about the concept of a Civil Rights Lawyer Hall of Fame (plenty of civil rights halls of fame exist). Halls of Fame serve to honor accomplished people. They are also a great source of discussion and controversy about who gets to select, the criteria and process for selection, and who is selected or not selected. Advocates for certain potential selections engage in passionate advocacy, sometimes for years. Even the induction speeches can be interesting. Michael Jordan’s Basketball Hall of Fame Enshrinement Speech is (in)famous because he showed the world the brutally competitive side of him who was driven by slights, real and imagined, to become the greatest (or second greatest?) men’s basketball player ever.

Given all of that, having an actual Civil Rights Lawyers Hall of Fame is probably not a good idea. As you may be aware, civil rights lawyers tend to be a passionate and argumentative lot and we have enough challenges as it is.

But I have am going to pretend there is a Civil Rights Lawyer Hall of Fame, so I can write about somebody who I think is a Hall of Famer. I am going to write about people who not only made a significant positive impact in their career but who I knew and can speak about from personal experience. I say “knew” because I am only going to write about people who have passed away. That way nobody living can complain to me about being passed over.

In February of this year. Steve Pollak passed away at the age of 95. He may not have been a household name but he was a giant in civil rights. This week is effectively Steve Pollak week as his family and friends are holding a memorial service on Saturday, May 25, at Sidwell Friends. For information, contact rbiggins5@outlook.com. The day before, the Department of Justice is holding an event honoring Steve at its Great Hall. To register to watch the event live in person or remotely, go here. The DOJ event was the idea of Kristen Clarke, who as the Assistant Attorney General for Civil Rights has some pull over there, and like me was touched by Steve. As Vice President of the Civil Rights Division Association, I am helping with the planning of the event and moderating a panel during it, so Steve has been in my thoughts in recent months.

Steve had a number of important positions in the Kennedy and Johnson administrations: special assistant to the solicitor general (the Solicitor General represents the United States before the Supreme Court), legal counsel to President Johnson’s Task Force on the War Against Poverty, first assistant to the Assistant Attorney General for DOJ’s Civil Rights Division, advisor to the president for National Capital Affairs, and finally Assistant Attorney General of the Civil Rights Division. In these positions, Steve was a key participant in many major civil rights moments of the 1960s. Here are a few:

• He assisted Attorney General Robert F. Kennedy and Deputy Attorney General Nicholas Katzenbach when James Meredith enrolled as the first Black student at the University of Mississippi in 1962;
• He played a key role in the drafting of the Voting Rights Act of 1965, then after the VRA was enacted, sued several states who retained a poll tax that was barred by the newly enacted VRA;
• He helped develop the Fair Housing Act of 1968 and drafted a section of the federal laws protecting against criminal interference with civil rights that Congress enacted as drafted; and
• He successfully argued Allen v. State Board of Elections, a seminal Voting Rights Act case, before the Supreme Court.

Steve has an extensive oral history you can find here.

Steve left federal service for good in January 1969 and was in private practice at Shea & Gardner and later Goodwin Procter until his death. His primary public service focus while in private practice was on the District of Columbia. His activities included chairing the board of the Washington affiliate of the National Lawyers’ Committee, serving as the President of the District of Columbia Bar, heading the DC Bar’s pro bono program.

Steve’s biggest public service involvement while in private practice outside of the District of Columbia was with my former organization, the (National) Lawyers’ Committee for Civil Rights Under Law, where Steve served on the board during virtually the entire time of his public practice. Steve served as a Board Co-Chair for two years in the 1970s and served on Board Amicus Committee which reviewed staff recommendations for filing amicus (friend of the court) briefs before the Supreme Court. Steve also argued an important Supreme Court case for the Lawyers’ Committee, Griffin v. Breckenridge (1971), where the Court overturned prior precedent and held that the cases involving conspiracies by private people could be brought Ku Klux Klan Act. Griffin remains an important precedent. During my last years at the Lawyers’ Committee, we brought Ku Klux Klan Act cases against the creators of robocalls designed to intimidate voters, the Patriot Front for committing vandalism intended to intimidate people of color, and the planners of the January 6 attack who actions resulted in injuries to Capitol Police officers.

It was through the Lawyers’ Committee that I got to know Steve. I had lunch with him in my first week at the Lawyers’ Committee. I was the new Director of the Voting Rights Project and he chaired the Project’s Board Support Committee. I am a little ashamed to say now that I did not know much about Steve’s history and Steve was not one to call attention to himself. I remember him being relieved that I been hired because he was concerned that the Lawyers’ Committee was moving away from voting rights, a thought that seems funny now. Steve was consistent in what he thought the Lawyers’ Committee should prioritize — a focus on Black people and voting rights.

Steve was a constant source of support for me during my time at the Lawyers’ Committee. I could go to him when I was struggling with something, and he always gave me helpful, caring, and honest advice. At my request, I brought him in to talk with the staff about the story behind the passage of the Voting Rights Act. When my father passed away suddenly in 2008, he sent me a heartfelt note.

I think what Steve was for me, he was for many people and in deeper ways. When Kristen led the Lawyers’ Committee, she organized a panel in 2017 at the National Press Club for former Assistant Attorney Generals for Civil Rights. Of course, Steve was on that panel. After the panel ended, I saw Steve with two federal judges, David Tatel and James Robertson, both of whom led the Lawyers’ Committee in the early 1970s. At one point, I walked up to talk to the three of them. In observing the interaction amongst the three of them, Judges Tatel and Robertson treated Steve with the type of respect you would treat an elder or a hero. It made me think of Steve in a different light.

One last Steve story that epitomize one of Steve’s chief character traits — he was blunt. When Steve and Brian Landsberg stepped down as leaders of the Civil Rights Division Association a couple of years ago, they asked me to serve as Vice President. One of primary duties is to work on events, including in conjunction with the Civil Rights Division. The Department of Justice held an event in December 2022 to celebrate the 65th anniversary of the Civil Rights Division. At this time, Steve was 94. Up to about a year before this, Steve was sharp in all of dealings with him but in his last couple of years there were times you could see the effect of age. After the event, Steve called me and gave me a detailed rundown of what worked, what did not, and how the next DOJ/CRDA event could be better.

Well, Steve, the next DOJ/CRDA event is in three days, and it is honoring you. We will do our best to meet your standards. Rest in peace.

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The Supreme Court designates days that it releases opinions during its term which typically ends in late June (the justices essentially take vacation in July, August, and September — how nice is that!). Most of the decisions are issued toward the end of the term. According to ScotusBlog, the Court has issued decisions in 23 of the 61 cases in which it heard oral argument this term. The public does not know in a given day which decisions or how many decisions are going to be released on a given day. On a decision day, the member of the Court who authorized the lead opinion will verbally summarize a particular decision and then seconds later the Court release it on its website. If there are multiple decisions issued on a given day, they are issued in by order of seniority of the justice who wrote the lead opinion with the least junior justice going first and the Chief Justice going last. For interested parties this process can be dramatic as we find ourselves at 10:00 a.m. on decision days both following the ScotusBlog feed, where we get tidbits of useful information, and looking at the Court’s opinion page.

For Justice Blog, I am not going to provide a standard summary and analysis of decisions because there are people who do that for a living and do it both quickly and expertly. Instead, if there is something about a decision(s) that interests me, I will write about in the weekly post. I did not expect to be writing about any cases this week but I did find interesting and important the three views of constitutional analysis set forth in Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. (CFPB v. CFS).

The Consumer Financial Protection Bureau is an agency that was created by the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010. The CFPB has substantial authority to regulate financial entities, including banks, credit unions, securities firms, payday lenders, mortgage-servicing operations, foreclosure relief services, debt collectors, and other financial companies, with the aim of protecting consumers. Most Congresses, including the current one, would not have enacted Dodd-Frank or created the CFPB but, at that time, Congress was reacting to the financial crisis of 2008 that almost sunk the US economy, and Democrats held the Presidency, the House of Representatives, and had a near filibuster-proof majority in the Senate.

Many conservatives detest the CFPB because of what it regulates and its substantial regulatory power. In January 2018, then-D.C. Circuit judge Brett Kavanaugh issued a forty-eight page dissenting opinion in PHH Corporation v. Consumer Financial Protection Bureau, where he took the position that the provision preventing the President from firing the CFPB director during the director’s five-year term was unconstitutional. The opinion attacks the provision as a transgression on executive power and a threat on individual liberty and was one of his most well-known opinions as a judge. There is no doubt the opinion burnished his conservative credentials and may have helped him get nominated to the Supreme Court later that year. In a different challenge to the non-removal provision, a 5-4 majority of the Supreme Court (with now-Justice Kavanaugh casting a decisive vote) would rule in 2020 that the non-removal provision was unconstitutional.

Conservatives, with the help of conservative judges, have not stopped in trying in weaken the CFPB. CFPB v. CFS was a challenge to the CFPB’s 2017 Payday Lending Rule. The challenge had been unsuccessful in the district court. On appeal to the Fifth Circuit Court of Appeals, a conservative panel rejected all of the Plaintiff’s arguments but one, but that one was a doozy. The court cut off the CFPB at the knees by holding that the mechanism used to fund the CFPB, which was not directly from Congress but from the Federal Reserve, violated the Appropriations Clause of the Constitution. The Fifth Circuit decision left the future of the CFPB in limbo and a good deal of its enforcement work was frozen in place.

The Supreme Court was not willing to go as the Fifth Circuit and voted 7-2 to reverse the Fifth Circuit. The decision has obvious significance of the existence and operation to the CFPB. That being said, I did not find the result surprising given that several agencies have been funded not directly through Congress but through another federal agency and there is no precedent of the Court finding fault with that. Constitutional interpretation begins its text and there is nothing in the text of the Appropriations Clause (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”) that suggests what Congress did violated the Clause.

What I did find interesting was the different methods of constitutional interpretation adopted in the three opinions made up in the seven-member majority. Justice Thomas wrote the majority opinion. This opinion looked to three sources for constitutional interpretation: “the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification.” In other words, anything that happened after the 1790s is irrelevant. This is the extreme originalist view first espoused in the Supreme Court by Justice Scalia followed by Justice Thomas and Alito. I will admit to being a critic. Think about if we ordered other aspects of our lives by confining ourselves to the way people approached life in the 1780s and 1790s. Beyond that, rights in the 1790s were quite different than that of today — slavery, women had few rights, etc.

But in the current jurisprudential climate, lawyers working on constitutional interpretation cases have to go back to that time. I will give you an example. On a case before the Court that I worked on, the lawyer arguing on our side and I went to the Department of Justice for the moot of the lawyer from the Solicitor General’s Office. The lawyer I was with had worked in the Solicitor General’s Office and so before the moot, we went to the DOJ library and she asked the DOJ librarian to bring out a 18th Century dictionary so we look up the 18th Century definition of a word that was central to our case. The librarian came back with a box with the fragile dictionary inside and we looked up the word. This is what arguing before the Supreme Court has become.

In CFPB v. CFS, there was a separate concurring opinion written by Justice Kagan that Justices Sotomayor, Kavanaugh, and Barrett joined. Though the opinion makes clear that Justice Kagan and the others joined the majority opinion in full, it added that it was also appropriate to long settled and established practice may have “great weight” in constitutional interpretation and the opinion goes on to discuss how Congress has applied the Appropriations Clause throughout U.S. history. The significance here is that Justices Kavanaugh and Barrett seem to be signing on to a view on constitutional interpretation that is not frozen at the time the constitutional provision was adopted. It would appear that a majority, the four justices that signed on to this opinion, and the one I am getting to next, are not what I am calling extreme originalists.

Justice Jackson wrote a concise three-page concurring opinion and that opinion, and one sentence in particular, is what I find most intriguing. She opines that there is no need to go beyond the text of the Appropriations Clause because nothing in the Clause forbids how Congress decided to fund the CFPB: “In my view, nothing more [than the text] is needed to decide this case.” The focus of the opinion is the courts should not tie the hands of the two political branches without good reason. My attention was drawn especially to this sentence:

The Constitution was “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted).

 

I, among others, am looking for one or more left-of-center justices to set forth a theory of constitutional interpretation that is clearly articulated and a rallying point. I am part of a small group of progressive litigators that have been talking about these issues and one of the phrases we have discussed is “enduring Constitution.”

Justice Jackson’s citing of McCullough and that sentence is hardly revolutionary. But that is part of my point. The idea of an enduring Constitution that adapts to the times goes back to 1819 and, at times in the Court’s history, has been a core part of constitutional interpretation.

Compare that to the humble beginnings of originalism. Justice Scalia first articulated his theory of originalism in an opinion in a 1995 dissent where his primary source was not a court decision but, I kid you not, an 1823 private letter from Thomas Jefferson:

The question posed by the present case is not the easiest sort to answer for those who adhere to the Court’s (and the society’s) traditional view that the Constitution bears its original meaning and is unchanging. Under that view, “[o]n every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” T. Jefferson, Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed. 1904).

And look where we are thirty years later, when the Court is citing 13th Century practices in holding there is no constitutional right to abortion.

Perhaps Justice Scalia’s greatest “success” has been taking originalism from essentially nothing to the center of gravity in how the Court interprets the constitution. I think Justice Jackson is taking proactive steps to steer it back.

I may be reading too much into Justice Jackson’s opinion and a lawyer who practices more in the Supreme Court than I has told me so much in a group discussion. But in less than two terms on the Court, Justice Jackson has shown signs that she may be the Supreme Court Justice I have been waiting for in my legal career. This opinion is another sign, and I am excited.