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Misc. posts related to the Supreme Court and its membership

Thoughts on the Little Sisters of the Poor v. Sebelius stay

We consider the other stay being sought before Justice Sotomayor, the Little Sisters of the Poor case.

I had thought that the premise of the Sisters' case was (like the other cases in motion) "we're subject to the mandate." But having read the Application and Response, I no longer understand how this case works. The Response insists that the Sisters ARE "eligible for religious accommodations set out in the regulations," and that that the Sisters "need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan."

Sure, you say, but that's the government; the Application contests that, right? Alas, it does not. To the contrary, the Application claims certification precisely as the harm that they will suffer absent relief: "Without an emergency injunction, Mother Provincial Loraine Marie Maguire has to decide between two courses of action: (a) sign and submit a self-certification form, thereby violating her religious beliefs; or (b) refuse to sign the form and pay ruinous fines. … [T]he precise act that violates their religion … [is] 'complet[ing] a self-certification form and provid[ing] it to" the insurers. In other words, the harm that the Sisters are claiming isn't that they will be subject to the Mandate but that they will have to certify that they aren't. That's puzzling and weak.

Confessedly, this is the so-called "compromise," and I criticized it when it was announced. But now that we have before us real regulations and real plaintiffs and a real, concrete situation, I'm having a difficult time understanding the problem as it's played out in practice. I understand why requiring a Catholic organization “to contract, arrange, pay, or refer for contraceptive coverage” is a violation of conscience. But as we've seen, the government contends (and the sisters don't contest) that they aren't being asked to do any such thing, because they can opt-out by self-certification.

Well, okay, but what does that mean? As I understand 45 CFR § 147.131 (2013), when an organization opts out ("self-certifies") that it can't in good conscience “contract, arrange, pay, or refer for contraceptive coverage,” their provider must—must!—"[e]xpressly exclude contraceptive coverage from the group health insurance coverage" provided to the certifying organization and "[p]rovide separate payments for any contraceptive services required to be covered … for plan participants and beneficiaries for so long as they remain enrolled in the plan." The provider "may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee or other charge, or any portion thereof, directly or indirectly," on the certifying organization.

So what's the theory that opting out is a violation of conscience? One theory might be that if a significant number of organizations opt out, the insurance companies may fund the imposed costs by rate hikes? That was the ground on which I originally faulted the compromise, but from our vantage point today, there's a lot of "if" and "may" coming off of that theory. The injury just seems too remote and speculative to support a lawsuit against the regulation.

And in any event, the sisters rely on a different theory. They think that a 147.131(b)(4) self-certification "authoriz[es] and direct[s]" their plan provider "to provide the required coverage…." App. 8. But that's not what section 147.131(c) says. It says that certification causes a plan provider that already provides the required coverage to pay for it "themselves." (Scare quotes with one eye on the first theory mentioned.) Their theory seems to be that opting out will cause an insurance company to offer contraceptive coverage, but even if that would violate their conscience (and it's not clear why), it's incorrect, not as a matter of Catholic doctrine but as a matter of law. The insurance company is already mandated to offer the coverage; the question (and the effect of the opt-out) is whether the sisters are charged for it.

When I try to harmonize the language of the two alternatives, here's what I get: The sisters insist that they can't in good conscience “contract, arrange, pay, or refer for contraceptive coverage.” I understand. I agree. They furthermore insist that they can't in good conscience contract with an insurance provider that arranges or pays for contraceptive coverage at no direct cost to the sisters. And that, truth to tell, I just don't understand.

It's looking more and more like a case of "right case, wrong plaintiffs." Imagine that the DoE promulgates a regulation that reads as follows: "Section 1. All power companies must pay all workers a minimum of 150% of the minimum wage. Section 2. A power company incorporated in Delaware shall be exempt from section one of this regulation if it certifies in writing to the Secretary that the day that follows Monday and precedes Wednesday is Tuesday." A power company not incorporated in Delaware probably has an APA claim, cf. Motor Vehicle Manufacturer's Ass'n v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 42 (1983), and a number of them file suit. Then ConEd, a Delaware corporation, perhaps feeling left out of the fun, files suit; the government moves to dismiss insisting that ConEd doesn't have standing to challenge the mandate because it's eligible to opt out under section two. Does ConEd have standing?

I will finish with this observation. Cases such as this demonstrate the difficulty of so-called "public interest litigation." Litigation mills like Public Citizen, Becket, People for the Soviet Way and so on decide that they hate a law, seek out the most sympathetic possible plaintiffs to use as a vehicle for challenging the legislation in the courts, and then try to figure out why their handpicked plaintiff was injured. It's not hard to see why that's an attractive strategy. It makes it easier to win sympathy—so that stories like this can be written in which the government is portrayed as a big overweening bully out to get the nice little plaintiffs, and suddenly the discharge of a normal litigation function starts to look Orwellian. "The government filed a response to the plaintiff's motion! How dare they! Why do they hate the sisters?"

But the problem with the strategy is that because the lawsuit's come together out of sequence, creating the necessary nexus of injury between the chosen law and the chosen plaintiff can be tricky. When you have a plaintiff like the sisters who challenge the mandate because it violates their conscience to provide contraception, one might think that "actually they don't have to provide contraception" is a pretty good rebuttal. There are a number of cases challenging the mandate that have less sympathetic plaintiffs (Hobby Lobby, Grote, Gillardi, et al) but stronger claims.

The aftermath

Yes, three quarters of the country can be wrong; the meanings of legal texts aren't decided by polls. But which texts are law can often be decided by polls, and if the President hoped to make a cause celebre of a decision by the court to strike down Obamacare, that door would appear to have been closed by the fact that even a New York Times poll says that three quarters of the country—so read four fifths, correcting for bias—would agree with the court.

Has the tone changed?

Greg Stohr at Bloomberg, with my emphases and comments:

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up. [So was the court; the agency lost that case--Sackett v. EPA--nine to nothing.]

. . . .

Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism ... [that he] is crossing the line that separates tough scrutiny from advocacy. ¶ “His questions have been increasingly confrontational,” said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.” [Prof. Fried has made clear in a number of appearences and interviews that he regards the challenges as risible. It's thus unsurprising that his perception would be skewed.]

. . . .

The justice has never shied away from controversy. ... In 2009, he told a college student she had posed a “nasty, impolite question” when she asked whether book tours by the justices undermined their case for banning camera coverage of arguments. [I've spent a fair amount of time trying to track down sourcing for this, and while there are ample sources giving the quote from Scalia, I have yet to find any source that records the wording of the question, and it's beyond cavil that a query that might be substantively reasonable can always be framed in a nasty, impolite manner. Without the text of the question, the criticism of Scalia's response falls flat.] ...

. . . .

Of late, Scalia’s most pointed remarks have come at the Obama administration’s expense. [Is that so? I'd like to know how you'd quantify that.]

In January, [in Sackett,] he directed his fire at Malcolm Stewart, a Justice Department attorney. Stewart was defending the EPA’s use of administrative compliance orders that demand an end to alleged environmental violations, in many cases insisting that recipients restore their land to its previous state ... [and] Scalia made his contempt clear after Stewart said that people and companies could seek to change any “infeasible” requirements. ¶ “Well, that’s very nice,” the justice said. “That’s very nice when you’ve received something called a compliance order, which says you’re subject to penalties” of $32,500 per day. [What Stewart actually said was that "every version of the compliance order said to the Sacketts [that] if you think that there are things ... in here that are wrong or compliance measures that you regard as infeasible, you're welcome to tell us." Tr. 34 ff. And as Scalia was pointing out, a right to ask an agency to reconsider an order that may be ruinous is cold comfort indeed if the agency is charging you ruinous sums of money for every day that you don't comply, including the time taken for your request to be processed. Scalia was right. Even Stewart conceded shortly thereafter that the EPA had put the Sacketts "an unattractive position." Id., at 37.] ¶ When Stewart said the EPA had modified the order at issue, dropping a requirement that an Idaho couple replant vegetation on their property, Scalia scoffed again. “It shows the high- handedness of the agency, it seems to me, putting in there stuff that is simply not required,” he said. [See ibid. "[W]hen litigation was threatened or actually brought," Scalia had noted, "the EPA modified its order: Oh, you don't have to plant the trees. Does it do this as a matter of practice, issue compliance orders that go well beyond what the what the [Environmental Protection Act] would -- would demand?" Does it not show high-handedness for an agency to issue compliance orders that go well beyond what the enabling statute demands, if that is indeed what happened?] ¶ The court unanimously ruled against the EPA in March, giving landowners more power to challenge compliance orders in court. [So clearly Scalia was way off-base, right? The EPA's position was so reasonable that it attracted support from... um... not a single justice. That's... nice.]

. . . .

With health care, Scalia’s primary target was Verrilli, the administration’s top Supreme Court lawyer. Defending the law’s requirement that Americans get insurance or pay a penalty, the solicitor general argued that uninsured people often receive care, even if they can’t pay for it, because of the “social norms to which we’ve obligated ourselves.” ¶ “Well, don’t obligate yourself to that,” Scalia said. [We have to administer the death penalty because of social norms to which we've obligated ourselves. Well, who's "we" and why are they obliging us? How does that supply a font of (or obstacle to) federal power? Does a decision by a determined minority to oblige Americans to do something supply authority for the government to do that thing? Can the obligation of a treaty in which the United States government promised another nation that it would do something that it lacks Constitutional authority to do supply the power to do it? Of course not. Scalia is right.] ¶ Later, Scalia called one strand of the government’s defense -- its contention that Congress could legally enact the law as a tax -- “extraordinary.” [So what? "Extraordinary" isn't unusual Scalian vocabulary, and while I realize that that sounds odd, it's not a contradiction when his ordinary business is to deal with extraordinary cases. This term, he called the government's argument in Hosanna-Tabor extraordinary (by the by, Justice Kagan called it "amazing"); extraordinary too was Justice Kennedy's opinion for the court in Lafler. Once, Justice Thomas' opinion for the court was extraordinary. Last term, too. And in Santos. And Scalia's not the only Justice to use that word. Or the only person at the court: Sometimes, the SG tells the court that things are extraordinary; indeed, Mr. Stewart did so in Sackett, the case mentioned above. So.] ¶ The following day, he mocked an assertion by another Justice Department lawyer, Edwin Kneedler, as the court considered what would happen to the rest of the law should a key provision mandating that most Americans obtain insurance be declared unconstitutional. Kneedler said the court should look at “the structure and the text” of the 2,700-page statute. ¶ “Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked, referring to the provision of the U.S. Constitution that bars cruel and unusual punishment. “You really want us to go through these 2,700 pages? [It's a bit late for Greg to come on all humorless having observed above that "[i]n the courtroom, he is quick with one-liners, drawing laughter more frequently than any other justice...." What does Greg want, a rimshot? Even the transcript adds "(Laughter.)" Tr. 38.]

. . . .

Scalia described as “extraordinary” yet another administration position, this time when Verrilli urged the court to strike down Arizona’s illegal-immigration law. Scalia bristled when the solicitor general said “we have to have the cooperation of the Mexicans,” something Verrilli said the federal government could best secure without state interference. “So we have to enforce our laws in a manner that will please Mexico?” Scalia said. “Is that what you’re saying?” [Again, the point isn't objectionable, and I say that despite being somewhat sympathetic to Verrilli's argument. Verrilli argued, among other things, that generally, the foreign relations of the United States (indisputably a federal business) with a given country are or may be affected by how we treat illegal immigrants from that country, and in particular, our ability to enforce immigration laws depends (I think that's a little strong, myself) on the cooperation of the "donor" country, especially in Mexico's case. Thus, the argument goes, the United States has an interest in enforcing immigration law in a way that doesn't antagonize other countries. See Tr. 69 ff. Scalia's phrasing might have been unkind, but it wasn't unfair, unreasonable, or incorrect.]

. . . .

If the court strikes down Obamacare...

The rationale, after a fashion. After the argument, I was thinking along similar lines:

[H]ere's my devil's advocate argument about all this. No justice since Rehnquist has wanted to revisit the basic premise of the new deal revolution, which is essentially that Congress can do anything, but only four justices are willing to embrace that outcome, and so every time a case challenging congressional authority arrives, liberals can't believe it's serious (because they don't believe there are limits other than individual rights), and the conservative justices desperately search for a limiting principle that preserves the fiction that the new deal settlement doesn't make congress omnipotent (because they don't want to revisit the new deal settlement).

Now, I'm not sure that it's true that the new deal settlement essentially makes Congress omnipotent; certainly that is the proposition that Lopez denies. But in the absence of a limiting principle, it's hard to see how that isn't the upshot, so we are backed into the corner of accepting one of three outcomes: Accept Congressional omnipotence, impose (sometimes slightly artificial) limiting principles to reign in that power, or overrule Wickard et al.

No, Justice Kagan shouldn't recuse

Althouse links to the latest story urging Kagan to recuse herself from the PaPACA litigation or explain why she won't.

Kagan shouldn't recuse herself (neither should Justice Thomas, by the way) and there's really no need to explain it. The prevailing understanding of recusal is needlessly histrionic; generally-speaking, I think that judges should recuse themselves when, and not unless, they have a direct personal stake in the outcome (stocks, etc.) or a personal involvement with a private litigant (the defendant is a family member; the plaintiff killed their dog). The idea that judges should recuse themselves because they might have preexisting opinions about the legal issues in the case at bar is, in a word, fatuous. Writing for the court in Minnesota GOP v. White, Justice Scalia correctly said that

it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias."

(Citations deleted.) If anyone believes that there is a single member of the court who doesn't have reasonably well-formed ideas about the Constitutional issues at issue in these cases, and at least tentative views about the application of those principles to these cases, they're living on another planet. And so what? Nobody in their right mind believes that Justices Scalia and Ginsburg must recuse from the next abortion case down the pike simply because they have strong moral views on abortion and settled legal views on the constitutionality of abortion, so what basis is there for demanding that Kagan recuse for potentially having views that are certainly no more settled and more than likely considerably less so?

The only conceivable basis is to argue that Kagan does have a direct stake insofar as she helped create the defense that she is now called to adjudicate. (For precisely that reason, Kagan has recused in a number of cases.) But did she? An email expressing excitement that the bill might pass is hardly a smoking gun, and I see little reason to believe that we're likely to find one. Here's why: The Senate consented to Justice Kagan's appointment on August 5th, 2010; the district court ruling striking down PaPACA, Florida v. DHHS, was argued in December 2010 and handed down in January 2011; the 11th circuit affirmed in August 2011. How could Kagan participate in briefing, arguing, or strategizing in litigation that took place months after she joined the court? It is conceivable that in the spring of 2010, Kagan might have participated in general strategy meetings about potential issues that might be raised in potential litigation, but that just brings us back to the general legal views trap. I see little reason to believe that she participated in the earliest stages of the earliest actual litigation filed, and by the time that one would expect the SG's office to be involved in those cases, Kagan had joined the bench.

The calls for Kagan to recuse have nothing to do with judicial integrity, any more than do the left's recurrent calls for Scalia and Thomas to recuse from various cases. (I recall one article in which a professor seriously argued that five justices should have recused in Bush v. Gore, and what do you know, they just happened to be the five who voted for what the professor thought was the wrong result! Fancy that!) This is about stacking the deck. The left wants Thomas out to eliminate a vote against Obamacare and the right wants Kagan out to eliminate a vote for it. The court should decline the invitation to dignify such naked partisanship by responding any more than it already has.

Perry v. Perez

The case of which Perry v. Perezdecided this morning—most reminds me is Ayotte v. Planned Parenthood. Although they deal with different issues, the common thread is a particular kind of judicial minimalism. In the context of an abortion law, Ayotte cautioned courts to strike down only those parts that were problematic, leaving as much as possible of the legislature's work intact; in the context of a redistricting challenge, Perry cautions district courts that if they must draw new districts, they should take as much guidance as possible from the legislature's plans; both expect courts to walk softly and tailor carefully, "limit[ing] the solution to the problem" as Ayotte puts it.

Perry is very short and worth reading, but I'll excerpt what strikes me as the key part:

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan—even one that was itself unenforceable—“to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.” …

Section 5 prevents a state plan from being implemented if it has not been precleared. But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan. On the contrary, the state plan serves as a starting point for the district court. It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court’s own preferences.

A district court making such use of a State’s plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan.

PaPACA goes to the Supreme Court

In a nutshell, here's what the Supreme Court ordered this morning in several Obamacare-related grants. The court is going to hear several hours of argument on the following questions: (1) Is the mandate severable? (2) "Whether Congress had the power under Article I … to enact the minimum coverage provision" of PaPACA.Pet. in 11-398. (3) "[w]hether the suit … challeng[ing] the minimum coverage provision of the Patient Protection and Affordabl...e Care Act is barred by the Anti-Injunction Act…."Nov. 13 2011 Order in 11-398. (4) "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole no longer apply?"Pet. in 11-400. (citation deleted). Now you're up to speed.

As I've mentioned before that I find it hard to count five votes for striking PaPACA down, but I must add that if comes out 5-4, I expect to see a slew of people condemning the decision as not only a horrible mistake but in fact illegitimate. If it's struck down, the leftosphere will go berserk charging that Thomas should have recused himself, and if it's upheld, the rightosphere will go berserk charging that Kagan should have recused herself! These narratives are already in the can, folks.

Utah Highway Patrol Assn. v. American Atheists, Inc.

Justice Thomas has written a dissent from a denial of cert that's well worth a read. I must say, however, that Justice Thomas is quite the optimist if he believes that the court had "an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles." To be sure, his dissent is wonderfully written and skewers a jurisprudence that has indeed gone "hopelessly awry." At the same time, however, it seems quite obvious to me that the reason for that shambles is that the court is deeply divided, and that accordingly, barring an Owen Roberts-style switchup, each establishment case that the court decides before new appointments bring a majority for one view of the clause or another can only make the law less clear not more. That has been the experience of the last three decades (as Thomas recounts), and it is hard to imagine why it would be different now. Until that's fixed, perhaps the best policy is for the court to avoid muddying the waters even further.

Sykes v. United States

“[We consider,] for the fourth time since 2007, what distinguishes 'violent felonies' under the residual clause of the Armed Career Criminal Act (ACCA) from other crimes. We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports. ¶ As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.”" Says Justice Scalia, in dissent (citations omitted).

"It should not be surprising that the two dissents have sharply different views on how to read the statute"—

"That is the sort of thing that can happen when statutory analysis is so untethered from the text." A stinging remark from the Chief's opinion in Chamber v. Whiting.

Two interesting sovereign immunity cases in two days

After a fallow few years, it's sovereign immunity week at the Supreme Court. Yesterday, the court handed down Virginia OPA v. Stewart (per Justice Scalia, Ex parte Young allows a suit between two state governmental entities; more about that case later in the week), and today, we get Sossamon v. Texas (per Justice Thomas, states do not waive sovereign immunity if they accept federal money for the program at issue).

Neutral principles and criticisms of Justices Marshall and Thomas

Jami Floyd offers this post about Justice Thomas. Before we start, a brief reminder of neutral principles (see this post for more detail). Generally-speaking, to avoid lapsing into partisanship, one should consider specific situations through the lens of neutral principles: It's not necessarily a problem that a conclusion happens to fit your partisan needs, but it should rest on a principle you would be willing to follow in other situations to which it applies, even situations where it might hurt your interests. (For instance, tea partiers are big on the Constitution but many of them recoiled from Snyder v. Phelps.) Put another way, we must decide this case in this way because it is an instance of a more broader class of cases which are all properly decided in this way. (That's a paraphrase of Golding, Principled Decisionmaking and the Supreme Court, 63 Colum. L. Rev. 35, 40 (1963).)

The biggest problem with Floyd's piece—as with many critiques of Thomas, it seems to me—is its failure to adhere to neutral principles. Her criticisms weigh as heavily on several justices, including Justice Marshall, as they do on Thomas:

  • Was Thomas "too green" to be nominated to the Supreme Court after only a year on the court of appeal? If so, then so was Marshall, who hadn't served a day as a judge. The Solicitor General (Marshall's previous billet) is sometimes called the tenth justice, but only rhetorically, which brings us to the winsome Justice Kagan. If Thomas was too green, what on Earth can Floyd think of Kagan?
  • Had Thomas "not yet proven himself a jurisprudential thinker of the caliber required for service on the U.S. Supreme Court"? If not, neither had Marshall; being a skilled litigator on the right side of some important cases does not make one a heavy hitter as a jurisprudential thinker. We should also pause to consider the neutrality of the premise: Why would Floyd assert the importance of being a heavy-hitting jurisprude as a criterion in the first place, and would she be willing to apply it to other justices? After all, it doesn't just knock out Marshall; it would almost certainly have excluded liberal lions such as Hugo Black, William Douglas, Earl Warren, and William Brennan from service, a result I am sure she wouldn't accept. Indeed, some of the most lauded liberal justices stubbornly resisted getting lost in the weeds of heavy jurisprudential thinking; Justices Stevens and Souter, I think, regarded themselves as common law judges free of the encumbrances of grand jurisprudential theories.

At bottom, Floyd doesn't like Justice Thomas' jurisprudence. But there seems to be something more. Or rather, there's either something more or the bottom line is inartfully camouflaged. Look at this backhanded insinuation that Thomas hasn't carried his intellectual weight since his appointment:

Conservatives who would suggest that my criticism of Thomas is purely ideological should note that I have no similar criticism of Justice Antonin Scalia. … Not only was Scalia deserving of the post when nominated in 1986, after four years on the D.C. Circuit, but he has more than carried his intellectual weight ever since.

Justice Scalia isn't in the crosshairs here, so the compliments are really designed solely to highlight the contrast being drawn with Thomas. It's therefore not as clear as Floyd would have us believe that her criticisms aren't motivated in large part by ideology. Similarly, we are told that Thomas "clings" to the jurisprudential tag assigned to him, "strict constructionist." Is Thomas a strict constructionist? He doesn't call himself one, and it's hard to imagine how a strict constructionist could join the sovereign immunity cases—Alden, etc. Lay critics—and fans, for that matter—continue to label Scalia as a strict constructionist (an obsolete and faulty dog whistle for "conservative") although he isn't, so I must wonder if the same is true here. And even if Thomas is a strict constructionist, it seems bizarre to refer to someone as "clinging" to their judicial philosophy. No matter how little she might like Black's dissent in Griswold, would Floyd say that he clung staunchly to textualism?

So perhaps there is more here than pure disagreement. If we take Floyd at her word that her criticisms have nothing to do with ideological differences, what are they about? Senator Reid got into this same pickle a few years ago; he made the same rhetorical comparison to Scalia, but when pressed couldn't articulate anything coherent or accurate about why Thomas was more egregious. In Reid's case, it was obvious that he had a a priori opinion of Thomas that wasn't grounded on any real knowledge of the latter's work or that of the court. And what of Floyd? Reid may at least claim the excuse that he was speaking extemporaneously, but Floyd's written piece is presumptively a thought-out expression of her views. Yet the real basis for her difference with Thomas (if it is not in fact about race or ideology) is evasive. It seems to be this: Thomas holds "extrem[e]" views and is "ineffective." But these are strange arguments to make. If Floyd thinks Thomas' views are extreme and/or wrong, why would she want him to be more effective in advancing them? And while one can seriously argue that Thomas is more radical than Scalia, Floyd doesn't seem to have such arguments in mind. I get no sense that Floyd is reflecting concern for, say, Eastern Enterprises v. Apfel, Gonzales v. Raich, or Morse v. Fredrick, cases in which Thomas would go much further than Scalia. Instead, she simply fabricates an easily-disproved soundbite to support her claim that Thomas is too extreme:

While others may prefer to focus on the silence of the judge from the bench, the more salient point is the silence of his pen. Like the late Chief Justice Rehnquist before him, Chief Justice Roberts rarely assigns majority opinions to Thomas. Whether this is because of Thomas’ lack of intellectual heft (as his critics on the far left might like to assume) or because of his staunchly conservative views (my personal opinion) the result is the same: Thomas does not write for the majority very much because he cannot persuade a majority of justices to join him.

In the first instance, Floyd is wrong. (She seem to have uncritically adopted and then seriously distorted a far more modest point made by Mark Tushnet, viz. that for strategic reasons, Thomas got fewer assignments than he might have, see A Court Divided 85-86 (2006).) Chief Justice Rehnquist sought—and Chief Justice Roberts has followed suit—to assign each justice an equal number of majority opinions over the course of the term, see Rehnquist, The Supreme Court 260 (2d ed. 2004), and the numbers bear this out. Last term, OT 2009, the court issued 73 signed opinions for the court, so with nine justices, each should have written about eight. Thomas wrote eight. In OT 2008, the court issued 74 signed opinions for the court, so with nine justices, each should have written about eight. Thomas wrote nine. I could go on, but you get the point. Nor is Thomas assigned only unanimous opinions; for example, Magwood v. Patterson and 14 Penn Plaza v. Pyett were 5-4, and the lopsided 7-2 margin of Washington State Grange perhaps does an injustice to Scalia's dissent. [Update, 3/29/11: And this very term, Thomas writes for a 5-4 majority in Connick v. Thompson.]

Even if she was right, however, it is hard to see how it is Thomas fault that he is unable to persuade eight judges not of his choosing, each with strong views on the law of his position. In his 2006 commencement address at Georgetown, our fearless leader quoted from Justice Frankfurter's address Chief Justices I have Known, 39 Va. L. Ref. 883 (1953): the notion that Chief Justice Taft would soothe the court's troubled was "funny" to Frankfurter: "that Taft would just smile and then Holmes would say, 'Aye, aye, sir,' or Justice Van Devanter would say, 'For ten years I've been disagreeing with Holmes, but now that you've smiled at both of us, why we just love each other.'" And it seems much the same here. Does Floyd suppose that if Thomas would be no more extreme on the issue of abortion than Scalia, and would just smile more sweetly at Justice Ginsburg, that he could persuade her to join him more often in abortion cases? Just yesterday, I was quoting from Minn. GOP v. White: "even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Justices arrive on the Supreme Court with legal views that may not be amenable to being changed—and besides, wasn't one of Floyd's criticisms precisely that he wasn't a judicial thinker of Supreme Court caliber? The two criticisms are incoherent: a judge who has a carefully thought out position is even less likely to be able to "deal" with justices who do not share his or her views.

For all these reasons—the factual errors, the dubious points and insinuations, the ad hoc standard by which she judges Thomas without any indication that she would apply it neutrally—Floyd's piece fails. All that emerges clearly is that Floyd, like Senator Reid, has a strongly negative opinion of Thomas, whether in fact based on race or ideology, and that like Reid, she is uncomfortable just saying so. Instead of bouncing back and forth between various "top ten slams on Clarence Thomas," it would be more honest and more effective to frankly acknowledge the real source of her beef with Thomas—no matter what it is. If it is his extremism, make that point, and make it clearly.

Finally, almost as a postscript, I will add this. There are legitimate criticisms of Justice Thomas. One that I saw recently (sorry, I don't have a link handy) had some bite in it: Thomas' silence at oral argument, the authors argued, denies litigants the opportunity to address his concerns. That is a good criticism; twenty years ago, Judge Easterbrook wrote: "Just as parties may choose the terms of their contract, they may choose the subjects of their litigation. Resolving a case on a ground not presented denies the parties this autonomy and increases the risk that an uninformed opinion will impede rather than promote commerce. It is hard enough to navigate when the court sticks to questions fully ventilated by counsel." Frank Easterbrook, Afterword: On Being a Commercial Court, 65 Chi. Kent L. Rev. 877, 880 (1989), but cf. United States v. Skoien, 587 F.3d 803 (7th Cir. 2010) (en banc) (Sykes, J., dissenting). David Karp has a useful article applying this problem to Thomas, and Thomas himself sometimes recognizes that this can be a problem—see, e.g., Powell v. Nevada, 511 U.S. 79, 87 (1994) (Thomas, J., dissenting), or his brief concurrence in Carhart. I do not propose to resolve the issue, but I do note that critics like Floyd would do well to press on serious, concrete issues like these rather than glamorous rehashings of Anita Hill and amorphous (and, it would seem, disingenuous) worries about whether Thomas is effective enough in advancing his views.

The role of argument

Reporting on a speech by Justice Sotomayor, James Warren writes:

She was also willing to admit that oral arguments before the court -- even after she and colleagues have done substantial homework on an individual case -- are enormously influential in how she winds up in voting. Other colleagues, such as Justice Antonin Scalia, may often depict matters, such as constitutional questions, as rather straightforward, given their pre-existing interpretation of the constitution.

Well, not quite. Here's what Our Hero had to say about oral argument last year:

[A] lot of people have the impression that it's just a dog and pony show. That in fact, you know, "I read a 60-page brief by the petitioner, a 60-page brief by the respondent, a 40-page reply brief, very often an amicus brief by the solicitor general. Sometimes dozens of other amicus briefs, not all of which I will read. I have underlined significant passages, I have written at best nonsense in the margin. What can somebody tell me in half an hour that's going to make a difference?" And the answer is that it is probably quite rare, although not unheard of, that oral argument will change my mind. But it is quite common that I go in with my mind not made up. I mean, a lot of these cases are very close, and you go in on the knife's edge. Persuasive counsel can make the difference. There are things you can do with oral argument that cannot be done in a brief. You can convey the relative importance of your various points.
. . . .
And the brief cannot answer back when I write 'nonsense' in the margin. And you can ask counsel, you know, "Counsel, is there some reason why this point is not nonsense?" And sometimes they can tell you. So I'm a big proponent of oral argument. I think it's very important and you'd be surprised how much probing can be done within half an hour—an awful lot.

(My emphases.) To be sure, there are easy cases; Justice Scalia does not go into oral argument in an abortion case on the knife's edge—but neither does Justice Sotomayor, and if you think otherwise, I have a bridge to sell you. Warren's contrast fails, I think.

"what has been taken away from him has been taken away from us all"

The path forward on PaPACA, redux

As in the Virginia case, the plaintiffs in the Florida case challenging Obamacare are eager to skip the court of appeals and go directly to the Supreme Court. Is the idea that the Supreme Court stands ready to wade in and strike this thing down? I find that hard to believe. As I said in November:

it's hard to count to five for striking it down.

Let's start with four votes to uphold that we can be certain of: it's just inconceivable to me that [any of Justices] Breyer, Ginsburg, Sotomayor, or Kagan are closet federalists. That leaves the conservative bloc and Justice Kennedy:

  • Thomas has by far the clearest path to striking it down. His concurrences in United States v. Lopez and Gonzales v. Carhart and his dissent in Gonzales v. Raich, to name but a few, make his skepticism about modern commerce clause doctrine clear in many words and few.
  • Scalia has work to do before he can join a majority in striking down Obamacare. He must distinguish his concurrence in Raich, where he agreed with the majority that Congress can regulate intrastate commerce and even noncommercial intrastate activity so long as those regulations are integral parts of a larger regulation of interstate commerce and the broader regulatory scheme couldn't function without those restrictions. It's a fascinating case which really highlights the differences between Scalia's federal and Thomas', and I think he can distinguish Obamacare from the Controlled Substances Act at issue in Raich. The mandate to engage in interstate commerce is truly novel, and in my own opinion fatal. At any rate, the point is that Scalia has some work to do, but can ultimately be counted as a vote against Obamacare.
  • Alito's concurrence in United States v. Comstock suggests that he has more sympathy for federalism than does Roberts, who joined the majority in that case. At issue was whether 18 USC § 4248 (which authorizes federal courts to protract the release of certain mentally ill and sexually dangerous prisoner by ordering their civil commitment) exceeded Congressional power. The court said no, and in quite sweeping language; Alito qualified his support but Roberts did not. And neither of them are natural opponents of federal power, having spent their entire careers working for the feds. It is to be hoped that they are Rehquistian on these issues; neither has yet shown it.
  • Lastly, there's Kennedy, whose federalism is hard to predict. On the one hand, he wrote the turgid yet correct Alden v. Maine, and joined the sovereign immunity cases. On the other hand, he joined the more sweeping Stevens opinion in Raich, and his concurrence in Lopez suggests a pragmatic federalism that, as I said, is hard to predict. …

The bottom line for me is that we can only be certain of one vote; we can be fairly sure of two votes, we can hope for three (T, S, A). But Roberts and Kennedy, it's really tough to see which way they come out in this case.

I'm hopeful that the court will strike it down, and I think it should do so even assuming the validity of current doctrine, but I see little reason to be confident that it will.

Meanwhile, the Senate Judiciary Committee yesterday held what Senators euphemistically call a "hearing" (a title carried over, presumably, from distant days when anyone listened) on the Constitutionality of Obamacare, and as Sen. Grassley drolly observed, one might think the usual order would be to hold such a hearing before passing the bill. One thing amused me and one frustrated me.

The amusement was in the repeated assertions that today's critics must be wrong about the potential for overreach if Obamacare is accepted because yesterday's critics were wrong about the potential for overreach if the new deal/great society was upheld. Are they kidding? Yesterday's critics were correct; absent the overreach they condemned, there would have been no overreaching Obamacare for us to criticize. Sen. Leahy went on to describe Obamacare as a capstone of sorts on the long brick-by-brick construction of the liberal-envisaged state; he didn't put it quite that way, but I agree, and I see that enterprise as mistaken from the ground up.

The frustration was that the entire discussion—at least, until I could take no more and went outside to clear up the mess—proceeded from the assumption that existing commerce clause doctrine is correct. Raich and Wickard were invoked ad nauseum, and to my delight, so was Southeastern Underwriters, albeit not by name. That stipulation is understandable, because the court is likely to decide this case within the perimeter of existing doctrine, whichever way it comes out. (Cf. the Scalia-Alito altercation in NASA v. Nelson.) Nevertheless, this
"hearing" was nothing but theater, a pep rally held to play to the C-SPAN gallery, and for that reason, I lament that nobody even mentioned the obvious: That Wickard and its progeny were wrongly-decided, and if one happens to believe this act is consistent with doctrine, that is an indictment of the doctrine not an affirmation of the act. Volumes have been written on the problems with modern commerce clause doctrine, and we need not rehearse it here; Justice Thomas' opinions in Lopez and Raich are good starting points. For now, I only add that our current predicament shows why those cases should not only be regretted as water over the dam but overruled. While I agree that Obamacare is unconstitutional even within the existing doctrinal framework, the fact that the question is even close (as Prof. Fried's comments show that it is) shows what a misadventure we are on, splitting the hair ever thinner. I would prefer that we forthrightly acknowledge what is plainly obvious: that modern commerce clause doctrine has become a loophole allowing Congress to regulate virtually everything, and it should be closed. I agree with the observation of Justice Thomas in Lopez (quoting Jones & Laughlin) that we must "refashion a coherent test that does not tend to 'obliterate the distinction between what is national and what is local and create a completely centralized government.'" The Court must always be keenly aware of the danger to federalism from the overgrown and all-grasping prerogative of the national legislature. (The allusion is to Federalist 48.)

It was also truly astonishing to hear M'Culloch quoted by Obamacare supporters, apparently oblivious to what they were reading. Supporters of Obamacare skim from it the famous dictum "[l]et the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate are Constitutional." But that isn't what M'Culloch says, and that ersatz dictum has led to all manner of mischief. What Marshall wrote is this: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional" (emphasis added). It is too obvious to credit dispute that a means which transforms Congress' limited powers into a plenary power (cf. Federalist 45) is consistent with neither the letter ("necessary and proper") nor, still less, the spirit of our federalist constitution (e.g. Younger v. Harris, 401 U.S. 37, 44-45 (1971) (Black, J.); Texas v. White, 7 Wall. 700, 725 (1869); US Term Limits v. Thornton, 514 U.S. 779, 838-39 (1994) (Kennedy, J., concurring)). To say that the only restraints on Congressional authority are those of the bill of rights, as three of the panel and several senators indicated yesterday, is to say that the unamended Constitution does not limit Congressional authority. Stripped of its rhetoric, the proponents' position is absurd, a mockery of the framers.

Meanwhile, yesterday's Senate vote reminds the nation that we are three Senators and one President away from repealing Obamacare. Keep piling on the pressure, and remember that we cannot have a frivolous candidate in 2012.

The grist for the mill

Jonathan Bernstein is unimpressed with Virginia v. Sebelius; he "do[es]n't think it matters a whole lot what the lower courts do." (HT: Adam Serwer).

It matters some. Bernstein is correct that if the case comes before the Supreme Court, the lower courts' dispositions won't decide the case. Nevertheless, which arguments are raised or forfeited below, and what is or isn't in the record, can shape the outcome and remedy of a case. Cf., e.g., Baze v. Rees or Crawford v. Marion County.

More importantly, Bernstein forgets that what the lower courts do matters a great deal for whether the case comes before SCOTUS in the first place. If the courts of appeal are unanimous in rejecting the challenges—in this case, if the fourth circuit reverses—there's no circuit split and no federal statute struck down, making the case uncertworthy. And because neither side wants to take the case, they won't. Only if a court of appeals says the law is no good will the court "have to" hear the case. And in turn, how the district court rules can frame how the court of appeals responds. For example, the district court in the proposition 8 case tried to insulate the decision from reversal by gaming the standard of review, resting the decision on factual determinations (reviewed for clear error, e.g. United States v. Knows His Gun, 438 F.3d 913, 917 n.2 (9th Cir. 2006)), rather than legal (reviewed de novo).

Accordingly, while I tend to agree that decisions in district courts are oversold when characterized as "victories" or "losses," they certainly matter, if not because of what they decide, then because of what they feed into the hopper.

The insufferable wrongness of Bush v. Gore-o-phobia

Jeff Toobin is still whining about Bush v. Gore. At the outset of his latest ennui-inducing screed, he argues that because important Supreme Court cases tend to be cited a lot in the decade after they're decided, the court's failure to do so amounts to its indictment of Bush.

But there's a simple reason why watershed cases are frequently cited in the ensuing years. The court typically decides a narrow point of law with broad implications; this naturally provokes a flood of litigation, and the courts spend years thrashing out the consequences of the decision. It happened after Brown; it happened after Roe; it happened after Apprendi and Booker; it happened after Twombly (which, as Judge Posner noted in Smith v. Duffey, "fast bec[ame] the citation du jour in Rule 12(b)(6) cases"); and it's happening now in the flood plain of Heller. And it should be obvious that the broader the scope of the decision, the more viable litigants with viable claims there will be, producing more lawsuits, which in turn produce more circuit splits on more questions, requiring more Supreme Court intervention, producing more cases which (naturally) cite the index case.

For obvious reasons, however, none of that applies to Bush. Bush concerned an unusual context (a Presidential election), and while it can and has been generalized to apply to elections more broadly, e.g. Coleman v. Franken, 762 N.W.2d 218 (Minn. 2009); Stewart v. Blackwell, 444 F.3d. 843 (6th Cir. 2006); Fruitlands v. Todd, 279 F.3d 1204 (10th Cir. 2002), that is still a very small constellation of cases, and an even smaller number of certworthy cases. What's more, elections cases are less likely to go the distance. In low-profile elections, the stakes are typically too low for sustained litigation (who goes to the Supreme Court over a mayoral race?), while in high-profile elections, huge pressure is brought to bear on the litigant to stop being a sore loser and concede.

By contrast, after Brown, just about every African American family in the south had a cause of action, Roe at least theoretically supplied a cause of action to every woman and abortion provider in states with abortion laws, and Heller did the same for people who own guns in political units with gun control laws. And Twombly and Iqbal have a potential catchment of every defendant in a civil case. Small wonder, then, that these cases invited lots more litigation, and smaller yet that the Supreme Court hasn't cited Bush. As I've said before, while "[t]he court's docket is described as discretionary, … [it] might better be called à la carte: the court gets to pick from among the cases presented to it," and there simply haven't been any certworthy cases appealed to the court involving Bush.

Lastly, a nit that must be picked. Toobin continues: "What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives." But this is legerdemain, and banal legerdemain at that. To the extent Toobin is arguing that the five's perceived political preferences line up with the candidate favored by their vote in Bush, the same may be said with no less force about the four. And why is he shy about pointing out the obvious: What made the dissents in Bush v. Gore so startling was that they relied on positions wildly in tension with the judicial philosophies of their authors. (The same can be said of the five only by forking strawmans of their philosophies.) Toobin is simply regurgitating the kind of mindless one-sided cant about Bush that Ann Althouse persuasively demolished in The Authoritative Lawsaying Power, 61 Md. L. Rev. 508 (2002). He would do well to familiarize himself with it.

Of two John Pauls

John Paul Stevens offers a critique of the death penalty, framed as a review of David Garland's new book on the subject, Peculiar Institution. Among other things, Garland argues that the growth of unquestioned state power and centralization in Europe allowed "criminal justice bureaucrats and national parties in Europe … [to] impose[ ] abolition despite popular opposition," whereas over here, "abolitionists found the … bureaucracy and the relatively weak national parties inadequate to the task of overriding public support" for the death penalty. Predictably, Stevens says this with a note of lament.

Nevertheless, while an unhappy camper, I am in the Stevens camp, at least so far as ends are concerned. (I reject his willingness to impose that result by judicial activism—his dissent in Baze v. Rees, for instance). John Paul II writes in Evangelium Vitae:

[T]o kill a human being, in whom the image of God is present, is a particularly serious sin. … [Yet there are] situations in which values proposed by God's Law seem to involve a genuine paradox. This happens for example in the case of legitimate defence, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence. The demanding commandment of love of neighbour, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: "You shall love your neighbour as yourself" (Mk 12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self. …

Moreover, legitimate defence can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State. Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.

This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is to redress the disorder caused by the offence. Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime ….

It is clear that for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. … If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.

(Footnotes, section number, and some citations and internal quotation marks omitted.) When this teaching is accorded the appropriate deference, see Lumen Gentium, no. 25, its interpretation of the fifth commandment hits with irresistible force. This might not be so if I felt able to offer a strong (or at least viable) counterargument, but I do not. While I agree with Justice Scalia that there is a relevant distinction between the scope of moral actions available to the state as compared to individuals, I read Evangelium Vitae as proposing something akin to the least restrictive means test: the death penalty is only permissible when and to the extent that (1) the penological goals served are essential and legitimate and (2) society has no other viable (or at least practical) means of fulfilling them.

There may be situations in our past and elsewhere in the world where these conditions obtain, but here and now, they appear unlikely and uncommon. Accordingly, so far as the death penalty is concerned, and without prejudice to extraordinary situations: as a juror I would not be able to impose it; as a legislator I would probably vote to repeal it; and as a governor with clemency power, I would typically commute any death sentences imposed before or during my tenure. The Magisterium is not served à la carte.

HT: Howard.

The outcome of the SarbOx litigation: narrow but right.

Today's decision in Free Enterprise Fund v. PCAOB is certainly correct as a matter of law; even the dissent has an air of resigned pro forma about it. While it will provoke a storm of crocodile tears and faux outrage among the usual suspects, however (or at least would do were it not overshadowed by the blockbuster McDonald v. Chicago), it is actually very modest and limited--perhaps too limited--in its remedy, as Prof. Bainbridge explains.

An angle on the Arkansas election which hadn't occurred to me

Well done, MJ. First the setup:

Ater the Supreme Court handed down its now-infamous Citizens United decision in January, many legal and political observers warned the ruling would unleash a torrent of corporate cash into American elections. … Just as predicted, campaign ads that would previously have been illegal are now airing in key midterm election races. But the players funding those ads aren’t the ones you might expect. It turns out that some of the first groups to exploit Citizens United aren't corporations, but labor unions.

In recent weeks, the American Federation of State, County, and Municipal Employees (AFSCME) and the AFL-CIO have begun to use the new Citizens United rules to promote their preferred candidates in closely fought contests, such as Lt. Gov. Bill Halter's challenge to Sen. Blanche Lincoln in Arkansas' Democratic Senate primary.

And now the pitch: "labor unions threw serious campaign muscle behind [Lincoln challenger Bill Halter, taking] … full advantage of … Citizens United…." Yet Halter lost. Indeed, not only did the union spending unleashed by Citizens United fail to put their man over the top, it failed to oust an incumbent in a viciously anti-incumbent election cycle. So much for the doomsayers! Elections are decided by votes, not dollars.

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