The Right Against the Law

So state courts hand down decisions you don’t like. What do you do? If you’re on the right, try to defund the courts.

By James Traub

Tagged ConstitutionDemocracyDemocratsElectionsgerrymanderingJudiciarylawRepublicansstatesSupreme Court

Five years ago, North Carolina’s Republican-dominated legislature declared war on the state’s judiciary. The courts, federal as well as state, had overturned a stream of measures passed by lawmakers over the objection of outnumbered Democrats: a gerrymandered electoral map, a highly restrictive voter ID law, and a constitutional amendment banning gay marriage. The legislators couldn’t retaliate against the U.S. Supreme Court, but they could against the state’s own judges. They eliminated public funding for judicial races, and then they compelled all judges running for election to declare a party affiliation, making North Carolina the first state to switch from nonpartisan to partisan judicial elections since 1921. They voted to shrink the Court of Appeals from 15 members to 12, and they cut funding for the state attorney general’s office (run by a Democrat), legal aid, and emergency judges.

With the state’s Republicans currently in danger of losing their veto-proof supermajority in both houses, that war may now be reaching its climax. This past spring, Justin Burr, a conservative Republican representing rural Stanly County, convened a meeting of the legislature’s Joint Select Committee on Judicial Reform and Redistricting to introduce yet another proposed constitutional amendment, which would transfer the power to fill judicial vacancies from the governor (a Democrat) to the legislature. For too long, Burr said, vacancies had been “filled in secret from behind the iron fence of the governor’s mansion”—though no Republican had raised the subject when a member of their own party occupied the statehouse between 2012 and 2016. Joe John, a Democrat, pointed out that the state’s chief justice, a Republican, had just issued a report on court administration that recommended no change in the appointment process. “We’re not bound by that,” Burr shot back. “We’re elected by the people.” And, apparently, “a lot of people” had complained about the system. Representative John asked drily if he could be “more specific than ‘a lot.’” Burr, apparently, could not.

No one was naïve enough to think the measure had anything to do with the public will, much less transparency. Even a Republican legislator, John Blust, declared that in the General Assembly, “a few people hold all the cards, and they can make the decision.”

No matter; this November, the people of North Carolina will be voting on a constitutional amendment that would establish a “nonpartisan merit-based system” to appoint interim judges between elections. The language is so vague and anodyne that it may well pass. Marcia Morey, a Democratic representative and a former state District Court judge, told me, “I’d be very much in favor of true merit selection, but using those words as a disguise for a totally political system is so disingenuous that I’m going to fight it all the way.” Morey predicts that the members of the merit judicial selection committee “will be selected by a Republican Chief Justice, a Republican legislative majority, and the [Democratic] governor.”

Yet North Carolina is merely the tip of the spear. Legislators in Kansas have similarly responded to adverse rulings on education funding and abortion by threatening to defund the courts, to strip the Supreme Court of jurisdiction over schools, and to rewrite the state constitution to explicitly prohibit abortion. Oklahoma lawmakers are hoping to move in the exact opposite direction from their brethren in North Carolina (although for similar ends), abolishing the committee that is actually nonpartisan and has operated without complaint for half a century, and replacing it with partisan elections. In Pennsylvania, a dozen legislators moved to impeach four judges on the Supreme Court who had voted to invalidate the state’s acutely gerrymandered 2010 electoral map. Similar movements are afoot in Florida, Iowa, Missouri, and South Carolina. What these states have in common is, not coincidentally, that they are controlled by Republicans. In most of these states, the far right has passed bills that the courts have later blocked. Legislators have responded with attempts to turn the judiciary into a subordinate branch of government.

The war on judicial autonomy is not merely a sign of extreme partisanship and polarization, though of course it is that as well. It is also a leading symptom of “illiberal democracy,” or authoritarian populism. The judiciary operates as democracy’s counter-majoritarian balance wheel, defending liberal principles, inscribed in constitutions, against encroachments from the legislature or the executive branches. Populists seek to uproot these barriers in the name of the “will of the majority,” as embodied in the current legislature and the executive. That is why both Viktor Orbán and Jaroslaw Kaczynski, the illiberal leaders of Hungary and Poland, zeroed in on the high courts of their countries almost as soon as they took power. Both succeeded in gaining control over the court system, thus consolidating their mastery of the state. That is, thankfully, a much more remote prospect in the United States, both because the federal system leaves the courts highly decentralized, and because the reverence accorded to the Supreme Court makes any direct assault on it a much more dangerous gambit. Nevertheless, the willingness of the Republican congressional leadership to violate all past precedent in order to prevent the Democrats from seating a Supreme Court justice in 2016 shows all too clearly that the party will abandon even the most solemn norm in order to have its way. Donald Trump is not an aberrational figure who has warped his party out of the democratic mainstream; he is a particularly shameless champion of principles already deep-seated in the GOP.

The United States Constitution established the judiciary as a coequal branch of government, its powers defined, albeit briefly, in Article III. This represented a sharp break with British constitutional tradition, in which Parliament stands above the judiciary and has the power to overrule judicial decisions. We know that the Framers feared an American version of the British Crown, but they were equally wary of a fully sovereign Parliament. In Federalist 78, Alexander Hamilton cites Montesquieu to the effect that “there is no liberty, if the power of judging be not separated from legislative and executive powers.” Limited government, Hamilton goes on, can be secured only through the judiciary, “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” That power was not stipulated in the Constitution, even though Hamilton claimed to find it there. Instead the Supreme Court itself embraced judicial review, as the doctrine came to be known, in the 1803 decision Marbury v. Madison.

Judicial equality and judicial review gave the courts the power to frustrate the will of the people. That was precisely their virtue for Federalists like Hamilton, who wanted a government strong enough to resist the passions of democracy. Hamilton’s great rival, the anti-Federalist Thomas Jefferson, tested those limits when he sought to impeach Supreme Court Justice Samuel Chase, a strident Federalist, in 1804. He failed, and thereafter impeachment would be reserved for high crimes and misdemeanors, as the Constitution states. Modern efforts to impeach Justice William O. Douglas and Chief Justice Earl Warren fizzled out. In 1937, FDR, frustrated by reversals of New Deal legislation, proposed to add as many as six justices to the Supreme Court. That, too, ended in ignominy. At the federal level, the principle of judicial equality has remained sacrosanct. Parties fight with ever-increasing ferocity over the individuals who will serve on the bench; not, though, over the autonomy or jurisdiction of the courts. President Trump has not even tried—not yet, anyway—to do what Republican zealots have done at the state level.

The war on judicial autonomy is not merely a sign of extreme partisanship and polarization. It is also a leading symptom of “illiberal democracy.”

But there is no disguising the undemocratic nature of judicial equality. Hamilton ingeniously defended his strong conception of the courts by saying that, since the Constitution was itself the embodiment of popular will, the courts had the sacred task of defending the people against infringements by their own agents. That has the feel of sophistry. The great legal scholar Alexander Bickel conceded that judicial review was intrinsically anti-majoritarian, and to that extent undemocratic. Whatever their respect for the Supreme Court, Bickel wrote, democratic majorities will not easily accept the “prodigious procedural safeguards” it offers to minorities. Bickel titled his famous volume on the subject The Least Dangerous Branch, borrowing Hamilton’s own term for the courts. Bickel’s ironic point was that, whatever might have seemed the case at the dawn of the republic, a branch that could overturn Jim Crow laws in the South could no longer enjoy the deference that comes with “harmlessness.”

State courts, however, enjoy neither the reverence nor the constitutional standing of the federal courts, and certainly not of the Supreme Court; they are, therefore, far more vulnerable to legislative power. For the first century of the republic, state legislators typically controlled the process of judicial appointment. Among the virtues of this system was the ease with which retiring legislators could wangle a sinecure on the state bench. Progressive reformers demanded that the power of appointment be transferred to the people through elections. North Carolina adopted a judicial election system even earlier, during Reconstruction in 1868. Nevertheless, “the courts existed at the discretion of legislatures,” according to William Raftery, a court analyst and author of “Gavel to Gavel,” a blog tracking state legislation on the judiciary. Raftery notes that New Hampshire disbanded its Supreme Court five times during the nineteenth century. What’s more, legislatures wield the power of the purse. While the U.S. Constitution states that federal judges shall be paid for their work, and that their compensation may not be diminished during their tenure, state constitutions typically contain no such proviso. Raftery has coined the word “bragency” to describe the hybrid status, somewhere between a coequal branch and an agency of the state, with which state lawmakers often assign the courts, especially at budget time. One of the leading works on the administration of state courts is aptly titled Separate But Subservient.

Despite this vulnerability, state legislatures rarely sought to use their powers in order to encroach on judicial autonomy. Raftery explained that, when he founded “Gavel to Gavel” in 2005, he had no sense that a national movement was afoot. When I asked at what point he first noticed an ideological assault on the courts, Raftery thought back to a 2006 campaign by Fox News host Bill O’Reilly to impeach Vermont judge Edward Cashman—a Vietnam vet, a churchgoer, and a conservative—for sentencing a child molester to only 60 days of jail time. The chronology makes perfect sense: Fox News has not only driven Republicans further and further to the right, but has also played a central role in undermining the legitimacy of institutions long regarded as standing above the partisan fray, whether the courts or federal agencies or scientific organizations or mainstream journalism. And it has done so by treating such institutions as the enemy of traditionally minded Americans and the cats’ paw of liberal elites. The assault on the neutral status of the courts is only a single battle in the conservative war to demolish all structures that had once enjoyed a nonpartisan status.

The dynamic of extremist legislation followed by judicial rebuff followed by legislative revenge first arose in North Carolina in 2010, when Republicans won control of both houses of the legislature for the first time in 140 years. Like Minnesota and Wisconsin, North Carolina is a purple state not because most voters are moderates but because it is sharply split between liberals and conservatives. This was the Tea Party election, and the new crop of legislators tilted far to the right. Before they ever targeted the judiciary, the new majority did their best to disenfranchise their opponents. They redrew the state’s electoral map in a way so transparently disadvantageous to black voters that federal courts ordered them to go back to the drawing board; their next effort so transparently disadvantaged Democrats that it was overturned once again.

Election laws were changed to require voters to show photo ID, to reduce the number of polling places in key counties and to eliminate same-day registration and other procedures disproportionately used by African-American voters. A federal appeals court concluded that the law had targeted black voters “with almost surgical precision.” (The Supreme Court declined to hear the state’s appeal.) It is, of course, one of the hallmarks of the modern Republican Party that it disdains all forms of restraint in political competition, including restraints imposed by a respect for the equality of all citizens. This contempt for fair play blithely cohabits with an agenda of enforcing traditional values: North Carolina lawmakers also passed a law requiring doctors performing abortions to show women their ultrasound and discuss it in mandated detail, as well as the notorious HB2, which required individuals at state-run facilities to use the bathroom that corresponded to the gender listed on their birth certificate. The first law was overturned by the courts, the second grudgingly reversed—only under great public pressure from across the country—by the legislature itself.

Reprisals against the courts began in earnest after Republican Pat McCrory won the statehouse in 2012, removing Republican legislatures’ fear of a veto. In addition to the end of both public financing for judicial races and nonpartisan elections, legislators moved quickly to require superior courts to convene a three-judge panel, appointed by the (Republican) Supreme Court Chief Justice, to overturn state law. They designed a one-time-only “retention” election for an endangered Republican judge, giving him an up-or-down vote rather than a live opponent. One of the new three-judge panels promptly struck down the law. The campaign for legislative supremacy was well underway when, in 2016, the GOP suffered a shock: A Democrat, Roy Cooper, defeated Governor McCrory by 5,000 votes. Meanwhile, a Democrat also won the new partisan Supreme Court elections, giving the Democrats a 4-3 advantage.

But before Cooper could take office, Republican legislators convened a special session, which they used to foment a kind of legislative coup. Lawmakers awarded themselves the authority to confirm gubernatorial cabinet appointments and removed the incoming governor’s power to appoint members of the Elections Board, which controls districting and voter ID, as well as the state university system board of trustees. They gave the still-incumbent governor, the Republican McCrory, the opportunity to transfer temporary political appointees to permanent positions, and reduced the number of appointments available to the incoming administration from 1,500 to 300. This extraordinary usurpation implies that, all along, the state GOP was motivated less by a low regard for judicial independence than by an unwillingness to brook any limits on their own powers, or on their own partisan agenda.

The GOP onslaught led a Democratic North Carolina congressman to reflect that “American democracy may be more fragile than we realized.”

The war on the powers of the state’s Democratic governor continues. The legislature has placed a constitutional amendment on the ballot that would so diminish his powers over state boards that even former Governor McCrory called it “a blatant power grab.” Legislators have also sown a new crop of bills targeting the judiciary. In June 2017, Justin Burr tweeted out new maps he had devised for judicial districts which would have forced several African-American judges to compete against one another. In September, the maps were incorporated into legislation without input from either the judiciary or from Democrats. That may have been too brazen even for some of Burr’s colleagues; the legislation was scrapped in favor of separate bills redistricting the state’s two largest counties; both passed. Republicans also rolled out half a dozen new bills connected to the “merit selection” plan, including one novel proposal to hand the power to fill vacancies on the Court of Appeals to the political party of the departing judge. That, presumably, would not count as nonpartisan merit selection. Or perhaps it would.

This astonishing onslaught led David Price, a veteran Democratic congressman from North Carolina, to reflect that “American democracy may be more fragile than we realized.” Simply put, the state’s legislative leaders failed to accept the principle of the separation of powers upon which American democracy is founded. Or rather, they believed that their party’s majority status trumped the permanent prerogatives of the other branches. And they plainly regarded the judiciary as subordinate. Marcia Morey, the Democratic legislator, says that her Republican colleagues frequently remind critics like her that the state constitution characterizes the three branches as “separate but distinct” rather than separate but equal.

It’s important to acknowledge that while the GOP legislators may have bent existing law, they did not technically break it, any more than Mitch McConnell did by blocking Obama’s nomination of Merrick Garland. What they violated was not a law, but a norm—an unspoken consensus around a principle that makes democracy possible, or prevents democracy from degenerating into pure majoritarianism. In How Democracies Die, political scientists Steven Levitsky and Daniel Ziblatt describe this norm as “institutional forbearance”: an agreement not to use formal institutional powers in a way that might damage the system itself. They use the dramas of Merrick Garland and of the North Carolina legislature as textbook examples of the failure of that norm. And they point out that liberal democracies are ultimately founded not on democratic laws but on the willingness of citizens to live in the spirit of those laws. The Weimar Republic did not fall because of errors in the Weimar constitution, but because political leaders abandoned liberal norms in the hour of need.

I had hoped to ask Republican legislators why they had carried out their campaign against the judiciary, but none of the half-dozen figures I contacted, including Justin Burr, returned my calls or emails. An assistant to Senator Dan Bishop, the cochairman of the Select Committee on Judicial Reform and Redistricting, said that the senator “did not accept the premise of your interview.” Since I had written that I wanted to ask Senator Bishop about the conflict “between legislatures and courts who legislators see as overreaching,” I was left to infer that Bishop does not, in fact, believe that the courts are overreaching. Perhaps he just wants them to do the bidding of Republicans.

It is in the blithe trampling of norms once considered sacrosanct that one most clearly sees the link between events in the United States and Eastern Europe. During the first term in office of Poland’s populist Law and Justice party (PiS), between 2005 and 2007, the Constitutional Tribunal struck down a series of laws passed by the new Parliament. When the party returned to power in 2015, it immediately set about both forcibly reshaping the court’s membership and drawing its teeth, just as the North Carolina GOP had done. The government canceled the appointment of five new judges for the court, replacing them with loyalists. When the current judges refused to seat the newcomers, Polish President Andrzej Duda went ahead and swore them in anyway. Since the old guard retained a bare majority, Parliament then adopted a measure that required a two-thirds vote for binding decisions. In 2017, Parliament passed legislation giving the government direct control over the judiciary and the Supreme Court. This summer, a new law setting the retirement age for the court at 65 provided a pretext for the government to fire 27 of the 72 judges, including the chief judge, who was so outraged that at first she defied the government by continuing to show up at work. The European Parliament responded by initiating a lawsuit against Poland for violating the requirements to protect the rule of law.

While in Warsaw in the spring of 2016, I spoke to Ryszard Terlecki, the head of the Law and Justice’s parliamentary caucus and a confidante of party leader Jaroslaw Kaczynski. Terlecki insisted that it was Poland’s previous government, under the liberal Civic Platform party, that had seized control of the media and the courts (which in fact it had not done). Law and Justice was simply taking them back. Yet Terlecki did not appear to accept the difference between the ruling party and the state, nor the liberal premise of neutral institutions governed by law rather than by ideology or party. Politics, for him, was a war of ultimate values; Law and Justice was Poland’s legitimate ruler, Civic Platform a fraud. How then, I asked, could he possibly accept the idea of political compromise? Terlecki laughed dryly. “What kind of compromise do you mean?” he asked. “There’s no need for one.”

There is, indeed, no need to create space for minorities of any kind, political or ethnic, if democracy means nothing more than majority rule. In that regard, Jaroslaw Kaczynski speaks with a clarity that even North Carolina’s most fearless legislators cannot muster. “In a democracy,” he said in a 2016 speech, “the sovereign is the people, their representative in Parliament and, in the Polish case, the elected president. If we are to have a democratic state of law, no state authority, including the Constitutional Tribunal, can disregard legislation.” That is a working definition of authoritarian populism.

I was reminded of this speech when I spoke recently by phone to Cris Dush, a Republican legislator from central Pennsylvania, who pointed out to me that John Locke, in his Second Treatise On Government, asserted that “the first and fundamental positive law of all Commonwealths is the establishing of legislative power.” Dush might not share Jaroslaw Kaczynski’s view that democratic legitimacy rests solely with the legislature, but he certainly views it as primus inter pares. That is why Dush moved this past March to impeach four Democratic judges on the Pennsylvania Supreme Court who overturned the electoral map devised by a Republican majority in 2011. The Republicans had so ingeniously gerrymandered the map that in 2012, 2014, and 2016, Republicans won 13 of 18 congressional races, despite taking barely half the vote. The state court ruled that the map “clearly, plainly, and palpably” violated Pennsylvania’s constitution. And the state Supreme Court declined to hear the case on appeal. Nevertheless, Dush and the 11 colleagues who joined him found the decision so egregious as to be worthy of impeachment, the nuclear weapon in the legislative armory.

Dush told me that he accepts the principle of judicial review, including at the state level, but was simply outraged when the court imposed its own map, which he regarded as “a blatant power grab from the people and the people’s representatives.” In the face of such usurpation, Dush says, “the only option that the legislature has in order to hold the judiciary in check is the impeachment process.” Yet the court drew up its own map only after legislators took what was at best a half-hearted crack at redrawing the one under dispute, which Democratic Governor Tom Wolf then rejected as still too partisan. Perhaps more to the point, the new map is highly likely to add more Democrats to the state’s congressional caucus. That would seem to be the unavoidable consequence of greater fairness. Dush, however, sees only partisan warfare. Pennsylvania has partisan Supreme Court elections; the Court there has five Democrats and two Republicans. The Democratic majority, Dush alleges, “set the whole thing up to have the result they did.”

Pennsylvania, however, is not North Carolina. The Republican leadership seems to treat the separation of powers as a settled fact. House GOP Majority Leader Dave Reed was quoted as saying that while he differed with the ruling, “Disagreement over the outcome of any particular case should not be grounds for impeachment.” Dush attributes this reticence not to principle but to calculation: Members who are attorneys, including his own leadership, fear appearing before judges they have tried to impeach, or may themselves “be looking to move up to the higher bench positions.”

In Kansas, by contrast, the executive has joined forces with the legislature to punish the courts for the temerity of engaging in judicial review—something more closely akin to the Poland model. Under arch-conservative Governor Sam Brownback, elected in 2011, Kansas carried out a radical experiment in low-tax, low-spending government. After the legislature made deep cuts to school funding, the Kansas Supreme Court ruled in 2014 that the budget ran afoul of the constitutional obligation to provide adequate school funding. The ruling provoked a slew of bills threatening to remove the Supreme Court’s jurisdiction over funding. Senate leaders proposed a raft of constitutional amendments asserting that school funding is “exclusively a legislative power,” and “shall be shown due respect by the other branches if government.” In an act of straightforward blackmail, Governor Brownback then proposed a law restricting the powers of the Supreme Court, which the legislature passed, later threatening to defund the courts if they found that law unconstitutional. The threat may have hit home: In June the Supreme Court ruled that, though levels of school financing remain inadequate, the state could take another year to fix the problem.

But the struggle between a right-wing legislature and a court that defends constitutional principles—or in any case what it regards as constitutional principle—cannot be confined to any one issue. In 2015, the Kansas legislature passed a law prohibiting the most common surgical technique used for second-trimester abortions. A district court ruled that the law violated the state constitution’s implicit guarantee of the right of women to choose, a ruling later upheld before the state appeals court and now on the docket of the Supreme Court. Abortion is, of course, burning ground, and current Governor Jeff Colyer and the legislature have vowed to rewrite the state constitution in order to explicitly ban it should the Supreme Court uphold the lower court rulings.

Micah Kubic, executive director of the Kansas ACLU, argues that, even as the state legislature has sought to delegitimize the courts as “partisan players,” Kansans still regard them as “objective and neutral.” Kubic offers as evidence the 2016 retention election—an up-or-down vote—for five Supreme Court judges, four of whom were the targets of an expensive campaign by conservative groups. All four judges handily retained their seats.

Liberal political theorists, since the time of James Madison, and later Tocqueville and Mill, have warned of the dangers of runaway majoritarianism. If liberal democracy is to continue to flourish, its adherents must be prepared to defend neutral institutions, even the very idea of neutrality, against populists who would reduce all of political life to the will of the majority. Yet counter-majoritarian institutions like the courts cannot permanently sustain democratic support if they are seen as protecting minorities at the expense of majorities. In The Least Dangerous Branch, Alexander Bickel describes how very carefully Supreme Court justices have unspooled their most sensitive decisions with an eye to the Court’s ongoing political legitimacy. That is hardly a hypothetical concern. Popular anger at the civil rights movement and defendants’ rights decisions of the 1960s drove many traditional Democrats out of the party’s ranks; more recent decisions on abortion, gay marriage, and other controversial questions of personal morality have helped further fuel the culture war that rages all around us. Liberal judicialism implies a Hamiltonian distrust of the public. Populists like Donald Trump can go to town on that condescension. Indeed, in The People v. Democracy, the liberal political theorist Yascha Mounk writes that liberals have helped provoke the populist backlash by seeking refuge in the courts and other sanctuaries, against the public will.

The war on judicial autonomy is one symptom of that backlash. The Kansas legislature would not be threatening to reduce the judiciary to beggary if the courts were not seeking to set the proper level of state spending on education. It is not unreasonable to ask ourselves: Just how confident should we be of their competence to do so, or of their level of sophistication about the relationship between school spending and academic outcomes? Even the great holy war over abortion has begun to look increasingly Pyrrhic. The fact that abortion is adjudicated by the Supreme Court rather than in legislatures, state and national, has turned every Supreme Court nomination into a life-and-death battle, has vastly exacerbated national polarization, and quite possibly got Donald Trump elected President.

That’s a very high price to pay. Nevertheless, liberals have been prepared to pay that price in order to safeguard precious rights. Depending on judicial protection has been a good bet for liberals for at least the last half-century; yet now the returns are diminishing while the costs are not. We are about to see the advent of a profoundly conservative Supreme Court that may be prepared to overturn settled precedent on key questions—including abortion. Donald Trump will salt deeply conservative judges throughout the federal bench, even if he loses in 2020. In other words, the judiciary has become a great deal friendlier to conservatives than it once was.

What should liberals do? The first thing, clearly, is to fight for the rule of law rather than men, the great neutral principle embedded in liberal society. That contest must be waged not as a battle cry of liberals seeking to defend liberal outcomes against conservatives, but as a bipartisan pledge of faith in the separation of powers guaranteed by the Constitution.

But liberals should also reconsider their bias in favor of the courts. Whatever their defects, legislatures are instruments of popular representation. Americans would surely feel better about their democracy if their legislatures were not so paralyzed that the courts had to serve as tie-breaker. While the short-term cure for divisive figures like Justin Burr is to fight every effort to compromise judicial autonomy, the long-term cure is for Democrats to wage more effective political campaigns than they have in recent years in the state legislatures and wrest from the conservatives the ability to shape law. Perhaps Donald Trump will hand liberals a blessing in disguise: By taking judicialism for the right, he has forced them to embrace the forgotten virtues of parliamentarism.

Read more about ConstitutionDemocracyDemocratsElectionsgerrymanderingJudiciarylawRepublicansstatesSupreme Court

James Traub is the author of True Believer: Hubert Humphrey’s Quest for a More Just America, which will be published in February.  

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