It's 4:01 a.m. and I have a final in PR in approximately four hours. In other words, it's the perfect time for me to introduce myself. I'm Survivor De Novo contestant Brian (not to be confused with Survivor Guatemala contestant Brian). PG has already said everything that needed to be said, so let's get this competition started!
Okay, I'll go ahead and say it. Hamdan.
First of all, am I the only one who thinks that the Court was probably right on the merits (are the tribunals properly authorized) but who nonetheless thinks that Scalia and Alito have some very good points in their dissent? I am not at all convinced that the Court has jurisdiction in the case after the passage of the Detainee Treatment Act. And if the tribunals are illegal only because their procedures are inadequate, I am not sure that the remedy is to shut down the tribunals, rather than to simply demand that they follow proper procedures if they intend to have their judgments respected. As Alito points out, when the Virginia trial court dneis you your Confrontation Clause right, we don't declare the Virginia judicial system unconstitutional.
But the Supreme Court rarely lets niceties stop it from reaching the merits when it wants to get there, and it got there. I don't know enough to know for certain whether Thomas is right about the flaws in the majority's analysis, so instead I'll start with another remedial question. The Court says that Article 3 of the Geneva Convention applies to the detainees, meaning that the administration's claim that it didn't have to worry about complying doesn't hold. Meaning that a number of U.S. nationals have probably violated the Geneva Convention, and are possibly guilty of violating the War Crimes Act, whose punishment can be as high as death.
Marty Lederman says that there's a due process right to rely on the reasonable opinions of government officials. Should that apply here and how far should it go? When Southern soldiers and officers left the union on the basis of the constitutional opinions issued by Southern governors and attorneys general, I don't think it violated due process to punish them for their disloyalty at the termination of hostilities. But I agree with Marty that a contrary doctrine would discourage departmentalism. So what's to be done? The cleanest result would be a blanket presidential pardon for anybody who violated Article 3 in reliance on the now-repudiated O.L.C. memos. I don't think that reliance on the memos needs to be any more protected than that. What do you guys think?
All right,, let's talk about Clark first. I agree with PG that the decision was a relief. I am not sure that the Constitution contains any sanity requirement at all, let alone the one that was at issue in this case. Clark's due process argument really came down to the 70's-era debate about state-granted rights. Clark's complaint was essentially that having created a mens-rea-type element of a crime, Arizona had to give him a chance to prove that he didn't have it (and had to give him the chance to do it in this particular way). The first response one is tempted to make is that since Arizona doesn't have to make mens rea a requirement at all (murder could be a strict-liability crime), it is entitled to define and establish proof of mens rea however it darn well pleases.
True, that response is too quick by half. At its limit, it would allow the state to avoid any constitutional procedural protection. That is why substantive due process is intuitively joined with procedural due process, for better or worse. But anyway, no need to go that far in this case. This seems to be a bang-up job by Justice Souter.
For those who find Souter overinclined to meddle in a state's punishment scheme, as judged by his Marsh dissent, today's majority opinion in Clark v. Arizona ought to be heartening. It allows states to depart from the traditional M’Naghten insanity test (of which I first heard in A Time to Kill), so a paranoid schizophrenic who killed a cop can use a psychologist's evaluation to defend himself as insane, but if it does not convince the jury of his legal insanity, he cannot use it to point to a diminished mental capacity incompatible with the necessary mens rea for first-degree murder of a police officer. Roberts, Scalia, Thomas and Alito joined the opinion in full, and I get the impression that its 39 pages might have been shortened had it been written by one of them; Souter seemed to be trying to pick up additional votes with the care and length he put into it. Breyer agreed that M'Naghten was not the constitutionally required standard, but was concerned that state law will not be applied the way Souter thinks it is being applied, and therefore wanted to remand to the Arizona Court of Appeals to clarify that it would be, rather than affirm and assume the best. (Prof. Kerr is thus not exactly right in saying that Breyer joined Souter's opinion.)
Stevens and Ginsburg joined Kennedy's dissent, which has an almost Scalian tone of annoyance with the majority, despite its self-description as "this respectful dissent":
Clark claims that the trial court erred in refusing to consider evidence of his chronic paranoid schizophrenia in deciding whether he possessed the knowledge or intent required for first-degree murder. Seizing upon a theory invented here by the Court itself, the Court narrows Clark’s claim so he cannot raise the point everyone else thought was involved in the case. The Court says the only issue before us is whether there is a right to introduce mental-disease evidence or capacity evidence, not a right to introduce observation evidence. This restructured evidentiary universe, with no convincing authority to support it, is unworkable on its own terms. Even were that not so, however, the Court’s tripartite structure is something not addressed by the state trial court, the state appellate court, counsel on either side in those proceedings, or the briefs the parties filed with us. The Court refuses to consider the key part of Clark’s claim because his counsel did not predict the Court’s own invention. It is unrealistic, and most unfair, to hold that Clark’s counsel erred in failing to anticipate so novel an approach. If the Court is to insist on its approach, at a minimum the case should be remanded to determine whether Clark is bound by his counsel’s purported waiver.Kennedy is not content with Breyer's caution as to whether Arizona law is what Souter thinks it is; he is instead quite convinced that Souter misunderstood it.
In some respects, I'm leery of moving away from actual insanity as one's defense against a crime. The misbegotten result "guilty but mentally ill" too often allows juries to relieve their feelings about the vileness of a crime by convicting the offender, while simultaneously acknowledging the clear inability of the convicted to appreciate what she was doing. This seems to have been what occurred in the original Andrea Yates trial. However, I don't think this is a danger in Clark's case; he wants to use evidence of his mental illness to show that he lacked the mens rea requisite for killing a police officer, which is a more grievous crime than killing someone else. Clark is not denying that he killed, only that he knew he was killing (insanity defense) and especially that he knew whom he was killing (regular-murderer-not-a-cop-killer defense).
Will asks below:
Frankly, I don't see the constitutional difference between locking somebody in a concrete cell for 5-10 years and then executing them, and locking them in a cell for 30-50 years until they die of so-called natural causes. Milbarge, PG, do you?
I couldn't let this pass. And of course, the answer to that question can be found in a couple of rhetorical questions. Is there a difference between locking someone up in a cell for 30-50 years and tarring and feathering him every day versus just locking him up? Is there a difference between locking someone up at San Quentin in beautiful Marin County versus handing him off to Yemeni authorities to dole out punishment? Is there a difference between the state announcing the date your life will end in a warrant versus the state separating you from society for the rest of your natural life? Is there a difference between a punishment scheme that has nothing to do with an individual's life span and one that does? Well, the Europeans certainly seem to think so on this last one.
Incidentally, the comment thing still sucks. If this is the case for you also, please leave a comment.
So there are really two Marshes worth talking about. Marsh One, which I tried unsuccessfully to provoke interest in, is the debate between Scalia and Stevens about whether it is worth the Supreme Court's while (or within the Supreme Court's Judicial Power) to take the case in the first place. To paraphrase Justice Stevens, Who cares if Kansas is playing fast and loose with the Federal Constitution, so long as nobody gets killed? (This argument is what I glibly and half-unfairly called "Stevens's Nullification Doctrine." No takers yet.
Marsh Two is the fight between Scalia and Souter about the death penalty, and whether or not "death is different" in a way that judges ought to take note of. [There is a Marsh Three-- the actual question presented in the case-- but I agree with PG there is little to say about it because Justice Thomas says all that needs to be said.]
First of all, Scalia probably would have done well to keep quiet on this score. If he is right that the moral status of the death penalty is irrelevant here, then why go into it, provoking the litany of blog posts, newspaper articles, academic emails and law review articles that this section of his concurrence was sure to? It seems like one argument too many, like the accused murderer who says "I wasn't there, I didn't do it, and he hit me first!"
That said. I'm not sure that PG's names below are on-point. Yes, plenty of people have been put on death row and discovered to be innocent before it was too late. The question is whether our modern safeguards (and executive clemency is a safeguard) have allowed an innocent person to be put to death. Scalia's point is that we have no good evidence that the answer is "yes".
I don't know whether PG is right that no organized group is "digging up corpses" to prove that we have executed an innocent person. If not, I can't understand why not. Surely one of the best ways for the death-penalty-as-procedurally-flawed folks to finally "change public policy on death penalty" would be to at last be able to put a face to the claim that innocent people are being killed by the government.
Now, PG, it's fair enough to point out that by narrowing the field to post-Furman executions, Justice Scalia is taking credit for death penalty reforms that he probably would oppose. But those cases are water over the dam so far as Marsh Two is concerned; given the constitutional requirements we have imposed on death penalty regimes, do those regimes kill innocent people, and if so, at approximately what rate?
Anyway, I think I will take Scalia's argument a step further and in another direction. I think it is Justice Souter that is being morally obtuse here. First of all, there is good reason to think that capital cases erroneously convict less often than non-capital felonies do. There are a number of public-interest resources, extra constitutional protections, and other hard looks that help out the capital defendant. In exchange, the capital jury is death-qualified, but errors in the death-qualification procedure can give the defendant another bite at the apple, so it's not even clear which way that cuts. See the discussion of this at Doug Berman's blog.
What's worse, all of this teeth-gnashing about the death penalty means less attention to the real problem of erroneous convictions at any stage. If Justice Souter is right that our death penalty system has an error rate sufficiently high as to be morally suspect, then why not make the same claim about our prison system? Our probation system? They're different in degree, not kind.
Frankly, I don't see the constitutional difference between locking somebody in a concrete cell for 5-10 years and then executing them, and locking them in a cell for 30-50 years until they die of so-called natural causes. Milbarge, PG, do you?
I agree with PG that the dissenters in Marsh could have picked a better vehicle for their digression about error in capital cases. A concurrence in House, perhaps? But I don't agree with her that "they would have been better off to dissent straightforwardly on this and every other case upholding execution by quoting Blackmun -- 'I no longer shall tinker with the machinery of death' -- and stopping with that."
First, maybe they aren't absolutists like Blackmun became. It's amazing how far things have shifted in just the last fifteen years or so. Despite conservatives' howling about how far left Souter and Ginsburg and Breyer are, they sure aren't automatically voting against every death sentence like Marshall and Brennan did. While the Marsh dissenters are certainly quite critical of the death penalty, I haven't seen any indication they want to throw away their tinker's tools, no matter how "straightforward" that might seem.
It seems like Scalia's always darkly suggesting that those four really want to chip away at the death penalty bit by bit. And, in practice, that may be what happens with cases like Atkins and Roper. But if you're Justice who believes that, in theory, the death penalty can constitutionally be applied in some circumstances, but want to be strict in oversight to ensure that it's only applied to the worst of the worst, wouldn't your work look a lot like Souter's or Stevens's or Ginsburg's or Breyer's? What is so nefarious about that? Souter's Marsh dissent talks a lot about the moral authority for the death penalty -- the idea that it's only morally justified if it's reliable and has lots of safeguards, etc. How could anyone with a conscience write or sign on to that if he or she really believed that the death penalty lacks any moral authority at all?
Souter's dissent is all about who should have the burden when death is on the line. Whether it's at a macro level (our standing with the rest of the civilized world) or the micro level (arguing to a particular jury), it's up to those who seek death to justify it. There's nothing in that dissent that's incompatible with the idea that it can be justified, and indeed, those four have voted to uphold scores of death sentences. I just don't think they're ready to put up their toolboxes yet.
Even assuming they really do, in their heart of hearts, believe the capital system is unfixable, who says they have to say so, like Brennan and Marshall, in every death case they see? Wasn't Chief Justice Roberts heralding the virtue of minimalism not too long ago? Isn't Scalia famous for saying the Court should decide as little as possible and call it a day? True, the reliability of Marsh's conviction was beyond the scope of the discrete Kansas law at issue on appeal. But viewed in light of my justification burden analysis above, it's not too far out there.
Scalia, however, so desperately wants that "Aha, I knew it!" moment, but why should the dissenters give it to him? After all, how many federal sentences did Scalia vote to uphold without mentioning his belief from Mistretta dissent that the Guidelines were unconstitutional? Didn't cases like Jones, Apprendi, and Blakely chip away bit by bit at the Guidelines? Nowhere in those cases does Scalia huff, "I no longer shall tinker with the machinery of the Guidelines."
Maybe someday the Court will take up the second go-round of Furman, the way Grutter was a follow-up to Bakke, and the Court will have to plainly and squarely face the primary Eighth Amendment question. But until then, why can't the Marsh dissenters be death penalty minimalists?
The idea that SCOTUS should leave state courts' misinterpretions of federal law unreviewed as long as the errors are in criminal defendants' favor reminds me of a discussion I had with Will in which I tried to argue for a pro-liberty stare decisis, and so I feel quixotically compelled to attempt a defense of " Stevens's Nullification Doctrine."
This is difficult, not least because the Marsh majority correctly applied the Sixth and Eight Amendment precedents to uphold Kansas's scheme: in line with the Apprendi-Blakely reasoning, the jury rather than the judge makes determinations relevant to sentencing; in line with Furman and the more positive motivation for sentencing guidelines, once those determinations about mitigating and aggravating factors are made, the penalty is applied to everyone for whom the factors are equal or tipped toward aggravation, thereby avoiding bias at least at that stage. And as Thomas says*, that is the stage under review, not the preceding process of crime identification, arrest, indictment, juror selection, etc. I really can't find a rationale on which to defend the dissenters' stated arguments, and think they would have been better off to dissent straightforwardly on this and every other case upholding execution by quoting Blackmun -- "I no longer shall tinker with the machinery of death" -- and stopping with that.
However, I do have some names to provide Scalia, as well as a point that the dissenters did not make.
Kirk Bloodsworth; Alejandro Hernandez; Rolando Cruz; Verneal Jimerson; Dennis Williams; Robert Miller; Ron Williamson; Ronald Jones; Earl Washington; Charles Irvin Fain; Ray Krone; Nicholas Yarris; Ryan Matthews. All of these men were charged with murder, given the death penalty and later exonerated through the use of DNA testing. Frank Lee Smith died of pancreatic cancer on death row before his exoneration. Some had no previous criminal record and have had none since; several of their DNA tests also revealed the actual perpetrators.
I got their names from the Innocence Project, which chiefly occupies itself with trying to get wrongfully convicted people out of prison, not with exonerating the dead. Scalia declares that if an innocent person had been executed, "we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby." But the abolition lobby, as such, is occupied in trying to change public policy on death penalty. Relatively few members of it are digging up corpses to match their DNA against that found at a crime scene. Even those who are working to exonerate living prisoners are rarely those prisoners' trial or original appeal attorneys, and certainly not prosecutors nor judges.
Scalia's assurance that our contemporary justice system essentially guarantees that only the guilty are executed is founded on the rather obvious ground that one cannot be exonerated without the participation of the justice system; someone must consent to review the case in some way before the convicted can be freed. But the administrators of the justice system are not particularly noteworthy for their enthusiasm about reconsidering convictions once the statutory requirements have been fulfilled. After a trial and the standard appeal, defendants are supposed to be hurried along to the electric chair, particularly since the trend in 1990s state and federal legislation was to minimize appeals.
This is a bit reminiscent of the debate going on about Scalia's citation in his Hudson v. Michigan opinion of Samuel Walker's book Taming the System: The Control of Discretion in American Criminal Justice. The book supposedly claims that police departments improved their behavior after the Warren Court's rulings in Miranda and Mapp. Scalia quotes Walker's saying there were “wide-ranging reforms in the education, training, and supervision of police officers” without mentioning the part about those reforms having been a result of Supreme Court intervention. Pointing to the results of liberals' work as proof that liberals are being silly in worrying about the stuff they're working on is a reliable way to piss us off.
* "But the availability of DNA testing, and the questions it might raise about the accuracy of guilt-phase determinations in capital cases, is simply irrelevant to the question before the Court today, namely, the constitutionality of Kansas’ capital sentencing system. Accordingly, the accuracy of the dissent’s factual claim that DNA testing has established the “innocence” of numerous convicted persons under death sentences -- and the incendiary debate it invokes -- is beyond the scope of this opinion." Reading the neglected majority opinion in Marsh reminded me how simple and almost elegant Thomas's writing often is; an introductory law school course could do worse than to have new students begin with his opinions, rather than the 19th century monstrosities that leave 1Ls convinced that they'll never understand The Law.
Will wonders if the Roberts era will be characterized by more pure error correction decisions from the Court. It's dangerous to call a handful of cases a trend, but there are signs pointing in that direction. Prof. Berman offers some thoughts for why Recuenco may be more than that, but I don't see any great urgency for taking Marsh, Brigham City, or (especially) Youngblood, except that a majority of the Justices seemed to want to correct an error.
On the other hand, error correction is a lot of what the Court normally does anyway. As Goldstein noted, the Court reverses about 75% of the time anyway. Not all of those cases involve circuit splits or tremendously important issues. I think it would be more noteworthy if the Court started taking more cases just to affirm as nationwide policy a lower-court decision it thinks is right. (What would we call the opposite of "error correction"? "Correctness affirmance"?)
Much has been made of the shrinking Supreme Court docket (including by me here), but I don't think the Court should simply find some make-work just to appear busy at budget time. Obviously, it's hard to harness nine different cert philosophies into a coherent system, so we're probably always going to see some idiosyncratic grants. But I would rather the docket stay small if there's no compelling need for the Court to hear more cases. And I'm not convinced that pure error correction is enough to justify that. I'm okay with an "error-plus" calculus, which in practice seems to be what the Court uses about 75% of the time. I'm even kind of okay with "it's a Ninth Circuit case" being a valid "plus-factor" because an error in that circuit affects about a fifth of the nation's population. But with all the issues it could be deciding, the arguments for hearing cases like Marsh and Brigham City seem lacking. If this is indeed a trend, I'm not enthusiastic.
Changing the subject, Tom Goldstein considers the effects of the O'Connor/Alito switch on the re-argued cases. And Prof. Filler at the Co-Op yesterdaysuggested that we wouldn't have seen the fireworks in Marsh with O'Connor on the bench because she wouldn't have signed on to Souter's innocence argument, which provoked Scalia's ire. Reading Kennedy's opinion last week in Rapanos, I realized he's now the only Justice with any real tie to the west, and that O'Connor might have waxed even more rhapsodic about dry river beds and flash floods in the desert. (Kennedy cited the Los Angeles River.) Will and PG, do you have any thoughts about O'Connor's impact on this term, either before or after she left the Court?
Any thoughts on Gonzalez-Lopez, the right to counsel of choice case from Monday? Another nail in the "Scalito" coffin, after Zedner, the Speedy Trial Act case in which Scalia criticized Alito's use of legislative history? (Note that I argued here that any talk of a "rift" between the two after Zedner was hogwash.) Prof. Althouse offers some thoughts here. I never expected Alito to be nothing more than a Scalia clone, of course. I'm not sure I'm convinced by Scalia's opinion here, though.
Milbarge, you make a good point that the cert-grant in Marsh (and to a lesser extent Brigham City and Recuenco) look more like error-correction than the resolution of a deep conflict among the lower courts. So I wonder if you think we might be entering a new era with the Roberts Court-- the era of error correction.
As you pointed out, Roberts has suggested that the Court might take more cases. Roberts himself has said that the Supreme Court ought to "dispose" of those cases that it does take on the narrowest ground possible. In Youngblood, the Court essentially held that a lower court should re-decide a case even though no intervening fact had changed. It looks to me like Roberts is trying to move the Court toward a model of error-correction.
If so, would that be a bad thing?
Watch out, folks. I'm about to make a textualist argument.
I have a conservative law school friend who, whenever we argue over abortion or other privacy rights, fumes, "Show me where in the Constitution you find the word 'privacy'!" I like to reply, "Show me where you find the words 'sovereign immunity'!" But if you look, Article I does state that Congress should establish uniform bankruptcy laws. So, it's more than just a "policy," as Will asserts; it's a constitutional directive to Congress that is clearly at the expense of the states. Why is it so hard to fathom that a policy gleaned from the Eleventh Amendment in Hans could be trumped by an explictly enumerated power? (Okay, to be fair, the concept of state sovereign immunity is older than Hans, and I'm not disputing its existence; mainly I'm just gigging Will. I just think he's giving short shrift to Congress's bankruptcy responsibility by calling it a mere "policy" when it at least shows up in the Constitution.)
A few more thoughts below the fold.
I'm still not sure what to make of what Will calls the Stevens Nullification Doctrine. After the Brigham City case, I thought Stevens was just being persnickety about the Court taking piddly little cases. I know I was frustrated when they agreed to hear Marsh, given how few people it would affect when so many more important issues are out there. So I'm not surprised he voted against cert.
On the merits of his one-way rachet idea for state courts interpreting the federal constitution, I guess I have to agree with Will that the state courts are technically making legal error if they use an over-expansive reading to benefit criminal defendants. But the Court has always said it doesn't sit merely to correct errors. I wouldn't draw a bright-line rule like Stevens seems to want, but really, what's the big deal in taking these cases? So what if some or all of the states think the Supreme Court is too stingy (or, more likely, wrongly predict how stingy the Court will be once it takes up the issue)? In so many other areas of the law, we entrust state judges to interpret the federal constitution, and even give them a great deal of deference. (Stone v. Powell comes to mind.) If the states are such great laboratories, why not see how they deal with the federal constitution and reap the benefit of their collective insight? Okay, so you may get some loon in Alabama who wants to repeal the Supremacy Clause. But it seems like the other Justices are just as realist if they only care about correcting errors when defendants win in the state courts.
As for whether Will is making a tempest in a teapot, I think it depends on whether this idea will outlast Stevens's tenure on the bench. Am I correct that he's been alone in all these opinions? Yes, these solo dissents can launch a thousand law review articles, but Stevens doesn't have long to build any votes for it. So why bring it up now? Where did it come from? I have to wonder (pure speculation) if the new Justices have significantly shaken up the cert discussions, and Stevens finds it necessary to air his disagreements publicly. I seem to recall Roberts saying at his confirmation hearings that he thought the Court could take more cases; maybe these are the kind of cases he meant. Or, since Stevens is the only Justice who isn't in the cert pool, maybe one of this term's clerks has a bee in his or her bonnet!
Also, I can't resist defending myself from PG below. Of course there's a federal policy in favor of uniform treatment of bankruptcy. The question is whether a policy in favor of uniformity can trump an enumerated or unenumerated constitutional right, in this case the nasty but well-entrenched right of a state not to be sued for damages without its consent. (A right that is best understood a right not to have judgments entered against it without personal jurisdiction, as Caleb Nelson has shown in the Harvard Law Review.)
The answer is no. To my knowledge nobody suggests that bankruptcy's policy in favor of uniformity enables it to decide cases without due process, although surely individualized process is sometimes at war with uniformity too.
Fascinating stuff issued from the Supreme Court today. Milbarge, PG, I'm sure you and I will disagree about Randall v. Sorrell (the Vermont campaign finance case) in due time. (While I think Eugene Volokh's defense of Buckley is the most compelling one I have read, I think the entire Vermont regime was probably unconstitutional, and that Thomas, Scalia, Kennedy, and Stevens are right that at this point the Buckley framework has led to more errors than it is worth.)
In the meantime, I think that the opinions to read are Justice Scalia's concurrence in Marsh as against Stevens's dissent in Marsh and in Recuenco. This debate, which I have previously discussed back at Crescat, is whether the Supreme Court ought to be taking cases from state supreme courts when those courts make an arguably-erroneous interpretation of the federal constitution, but any error would benefit the criminal defendant. Justice Stevens's position is that there is no point in taking those cases, because no harm is done if a state court decides to use federal law to let somebody go free. Scalia's response is that rights talk can cut both ways. If state supreme courts are taking the federal Constitution's name in vain, then that is a legal error too. I almost hoped Scalia would mention "active liberty".
It seems to me that Justice Stevens is way off base here. Stevens is right that until the early 20th century, the Judiciary Act didn't give the Supreme Court jurisdiction to hear appeals in cases like this-- where the state court used the federal constitution to strike down a state law or practice. But what that meant was that when a contested question arose, the Supreme Court wasn't able to hear the case and resolve the issue until some state, somewhere, had upheld the law. If the state courts were united, then the Supreme Court couldn't stop them even if they were totally wrong. This also meant that a case frequently couldn't reach the Court until a great deal of momentum had built up on the other side of the question. Now if one thinks that striking down laws is generally a good thing, and the Court should err on the side of increasing activism, this posture may make some sense. But to most scholars at the time, this seemed crazy, which is what prompted Walter Dodd and others to lobby for the reform of the Judiciary Act. Which, thank heavens, we now have.
So now Justice Stevens wants to bring back as a doctrine of comity what Congress has eliminated as a doctrine of jurisdiction. I think the idea is almost as bad. [It is true that state courts have license to protect individual rights against state intrustion via broad interpretation of the state constitution, and as a general rule I think there is nothing at all wrong with that. State constitutions have different histories, texts, and animating purposes than the federal one, and as I mentioned once at the Conglomerate, the institutional posture of state supreme courts may rightly give them reason to be less deferential to the legislative and executive branches than the federal courts are.]
But indifference between what source of law (federal constitution or state) is used to produce the same result is legal realism at its worst. It is bad first of all because it makes it too easy for judges to play shell-games with those who make law. The people of Kansas retain control over the Kansas Constitution, and can amend it to correct judicial mistake. The Eighth Amendment to the Federal Constitution is, for all practical purposes, out of play. It is bad second of all because it misunderstands the nature of the judicial process-- to resolve disputes by applying legal rules derived from texts or the common law, not to look around for a rule to justify one's preferred result.
But I'm rambling. PG, Milbarge, what do you think of the Stevens Nullification Doctrine? Or am I making tempests out of teapots?
Among monkeys, anyway.
With regard to Milbarge's question about the state of sovereignty, I put limited stock in Rehnquist's Hibbs opinion -- too many cynics have convinced me that it was damage control on how the liberal + O'Connor majority could have extended the holding had he not joined them and assigned the opinion to himself. Indeed, it's the half-presence of O'Connor in this term that I find more significant; inasmuch as she wasn't entirely reviled by conservatives, it was generally for her commerce clause jurisprudence.
Though Milbarge deems Marshall v. Marshall overrated and Will nominates Central Virginia Community College v. Katz for underrated, both cases involve a conflict between the federal authority over bankruptcy and a state's power (in Marshall over probate, in Katz to refuse being sued). Will says the latter "held-- quite implausibly given the caselaw-- that Congress can use an Article 1 enumerated power to abrogate state sovereign immunity." Viewed more in terms of the weight of that enumerated power, "[t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States," however, the caselaw seems more favorable.
Rehnquist pulled seven votes in Tennessee Student Assistance Corp. v. Hood with a dodge: "Because we conclude that a proceeding initiated by a debtor to determine the dischargeability of a student loan debt is not a suit against the State for purposes of the Eleventh Amendment, we affirm the Court of Appeals' judgment, and we do not reach the question on which certiorari was granted." Souter and Ginsburg concurred with "I join in the Court's opinion, save for any implicit approval of the holding in Seminole Tribe of Fla. v. Florida." (I'm not a big fan of the don't-give-the-state-a-wedgie rationale either -- Seminole's protection of sovereignty is better justified because the state acted in a purely regulatory capacity rather than as an employer, buyer, seller, provider of facilities, etc., and therefore was in its dual-government role* -- but let it go.) Thomas, with Scalia joining his dissent, refused to let Rehnquist sidle by and declared that the suit in question was pursued adversarially rather than by the Bankruptcy Court's in rem jurisdiction, so the state's sovereignty and almighty dignity was implicated and must be defended.
I wonder whether there was a "See, I told you so" moment between the Hood dissenters and Kennedy in conferencing about Katz, as he joined them along with Chief Justice Roberts. O'Connor stuck by the dodgy memory of former Chief Justice Rehnquist in joining Steven's opinion, which said, "The relevant question is not whether Congress has 'abrogated' States’ immunity in proceedings to recover preferential transfers. The question, rather, is whether Congress’ determination that States should be amenable to such proceedings is within the scope of its power to enact 'Laws on the subject of Bankruptcies.'"
Thomas is right to politely call bullshit on this further attempt to avoid the Eleventh Amendment problem, but he is wrong to cast Katz as solely a question of sovereignty and therefore decided by the Seminole precedent. The Court's specific jurisprudence on bankruptcy is relevant as well, and weighs in favor of a policy toward uniform treatment of commercial creditors. In Marshall**, the Court managed unanimous agreement that the history of a "probate exception" to the federal courts' authority was dubious; the majority in Katz got something similar for the provenance of states' being excepted from bankruptcy rules.
* Obviously this is a very fact-specific and O'Connoresque distinction. For example, in Pennsylvania v. Union Gas, the majority made the superficial determination that Congress was just treating the state like any other "owner or operator," cheerfully ignoring that the tar accident occurred while the state was engaged in flood control efforts, not while it was running a coal plant. Hoffman fits here as well, because the state was in its capacity as a taxing authority, something only a sovereign could do. In Katz, by contrast, the state entities were engaged in regular commercial transactions with a bookstore, buying and selling just as a private college would.
** Bleak House got yet another mention in Stevens's Marshall concurrence, footnote 2. And footnote 5 of Stevens's Katz opinion made me smile. "The legislation widely acknowledged to be the first English bankruptcy statute, 34 & 35 Hen. 8, ch. 4, §1 (1542), contained a provision explaining that the statute was needed to deal with the growing number of debtors who, after 'craftily obtaining into their Hands great Substance of other Men’s Goods, do suddenly flee to Parts unknown.'"
The Court issued five new decisions this morning; Howard has lotsa links here.
I'm still trying to wade through the Vermont campaign finance case to see if I can claim even partial credit for my prediction. I said that the Court would issue a muddled opinion requiring complicated vote-counting, and that's what happened. And the Court didn't go so far as to say that the states can't enact any limits on contributions (just that the ones Vermont did were too low). Of note, we now have at least four votes to overrule Buckley v. Valeo. I need to re-read this one, though.
Other interesting developments this morning include Justice Stevens spending a lot of time in a couple of cases (Recuenco and Marsh) discussing his theory of state court protection of federal rights for criminal defendants, and whether the Court should take a different approach when it's the state appealing instead of the defendant. Will has discussed this notion recently, so I expect him to add some more this week. The must-read opinion today, though, is Justice Scalia's staggering concurring opinion in Marsh. More on that later, as well.
Finally for now, our Slate forbears have started their discussion here, with Dahlia Lithwick asking Walter Dellinger what's so great about unanimity. After last week and this, we might better ask, What unanimity?
The More Things Change (1986) - The International Court of Justice decides in Nicaragua v. United States that the U.S. had violated international law by supporting Contra guerrillas in their war against the Nicaraguan government and by mining Nicaragua's harbors. The U.S. refused to abide by the Court's decision, on the basis that the court erred in finding that it had jurisdiction to hear the case, and withdrew its declaration accepting the Court's compulsory jurisdiction. Undeterred, 15 years later the ICJ finds against the U.S. in the LaGrand Case.
A few brief thoughts in response to Milbarge's post below.
Gonzales v. O Centro Espirita is one of my candidates for a most-underrated case. It undoes half of the damage some people thought was done by City of Boerne v. Flores, when the Court struck down the Religious Freedom Restoration Act on enumerated-powers grounds. O Centro says that RFRA is alive and well, laws that substantially burden religious exercise must meet strict scrutiny, and the say-so of the litigating branch of the DOJ is not enough to count as a compelling state interest. (Neither is the say-so of a few folks in the state department about our treat obligations.)
O Centro is also big for what it might signal about the Supreme Court's attitude towards vice policy. To establish a compelling state interest sufficient to justify criminalizing a religious sacrament, the state has to show that the drug in question is harmful in the circumstances in question. It's not enough that Congress declared it to be harmful across the board. Of course, since a huge number of these drugs really aren't very harmful, that's going to make it very difficult for government litigators to prove that they are harmful in the particular cases at hand. Basically O Centro forces the government to prove on an individualized basis what isn't even true on a generalized basis, which may end up poking some holes in the current broad-blanket attitude towards the criminalization of the consensual ingestion of substances.
Of course, I'm enough of a realist not to imagine this attitude will hold for long; the deference shown toward Congressional factfinding last term in Raich is just one recent example. And I'm also not sure that this attitude is the proper legal posture for the Supreme Court to take. But it seems to me that simultaneously showing that the Religious Freedom Restoration Act has teeth, and that the government is not going to get a blank check where drugs are concerned, are two very big deals.
Central Virginia Community College v. Katz is my other candidate for an under-rated case, since it held-- quite implausibly given the caselaw-- that Congress can use an Article 1 enumerated power to abrogate state sovereign immunity. Even the lawyer who argued the case was positive that he was going to lose. Justice O'Connor's switch-in-time is a much bigger deal than the Court's decision in Georgia; it would be a bigger deal if she were still on the Court. Even Linda Greenhouse forgot about the case when she was reporting on sovereign immunity.
So many cases are over-rated that it's hard to know where to begin.
Thanks to PG and Will for joining me on this little adventure. And thanks to PG for hosting the whole shebang over here.
I thought about titling this post, "Light This Candle." That was what Alan Shepard said when he was ready to blast into space. He also said, ""Please, dear God, don't let me f*** up," which also seemed appropriate given that I always manage to mangle these MT blogs (I'm a Blogger guy). And then I realized, even though this is something of a kick-off post, we're really discussing the end of a very eventful Supreme Court term and trying to wrap it up with some kind of synthesis. I tried for some kind of "burning the candle at both ends" metaphor, and finally just gave up. So that explains the boring post title, which is certainly less evocative than PG's.
Anyway, we're now less than twelve hours away from the moment when the buzz in the majestic court room will die down, and the gavel will bang, and the marshal will call the court to order, and the Justices will file in and take their seats. The Chief Justice will inform the listeners that a certain Justice will announce the decision in a pending case, and that Justice will finally end the suspense. On rare occasions, a dissenting Justice will add a few words. And they'll continue that way until they get through the day's business. The Chief Justice will announce a recess, the gavel will bang, and the Justices will file out. It's pretty amazing to think how much the law can change, how many lives will be impacted, how the balance of power between the branches of the federal government, and between the states and the national government, will shift, all in the span of a few minutes.
And then, of course, people like us will spend many more minutes trying to digest what just happened.
We're still waiting on decisions in about ten cases. SCOTUSBlog has a list here. I think two of these, the terrorism tribunals case (Hamdan) and the Texas redistricting case (LULAC v. Perry), will get the most attention in the media, with the insanity defense case (Clark v. Arizona) also garnering some notice. That's not to say they're the only important cases. But a case like Clark is simply going to be more accessible than, say, Recuenco, the Booker follow-up.
There are certainly times when the cases that get lots of attention don't really warrant it, and vice versa. I'd like to start our little endeavor here by asking PG and Will for their thoughts on this term's most overrated and most underrated decisions (however they'd like to define those terms). For overrated, my suggestions are Gonzales v. Oregon (interpretation of the Controlled Substances Act re: physician-assisted suicide) and certainly Marshall v. Marshall (the Anna Nicole Smith case). Not that those cases are insignificant, but I thought the interest they received was outsized. For underrated, I'd offer Jones v. Flowers (a due process/notice case I discussed here). I'll try to find time to explain my choices later in the week.
I'd also like to ask what the state of the states' sovereign immunity is these days? The late Chief Justice Rehnquist spent three decades building something of a federalism revolution on the Court. Maybe he backed off a little bit in Hibbs, the FMLA case, but it's still a considerable legacy. Do cases from this term like Katz and U.S. v. Georgia (the Bankruptcy Act and ADA Title II, respectively, abrogate soveriegn immunity) mean the movement is receding a bit? Or am I reading too much of a trend in these cases? After all, Gonzales was a victory for the states, right? So where do we stand?
I'll try to come up with some more meta-term questions later this week, and will do my best to tackle whatever Will and PG throw at me. For now, I'll venture a few predictions for this week at the Court. SCOTUSBlog notes here that both Tom Goldstein and Miguel Estrada predict that Justice Stevens is writing the opinion in Hamdan, so who am I to disagree? I think a lot of people saw the two newest Justices as President Bush's effort to build a Court that would be favorable to his arguments in the legal battles of the war on terror, so I'm looking forward to seeing what Chief Justice Roberts or Justice Alito have to say in Hamdan.
I predict a 4-1-4 split in LULAC, with Justice Kennedy again being the swing vote, just like last week's Rapanos Clean Water Act decision. (I also predict that Will and I will disagree over Rapanos). I predict I'll get tired of italicizing all these case names by the end of the week. I predict that the opinion in Sanchez-Llamas won't require state courts to follow World Court rulings. I predict that the decision in Randall v. Sorrell, the Vermont campaign contribution case, will be a muddle, but that the Court will follow the district court in letting states enact some limits on contributions, but will strike down the caps on what candidates can spend themselves and the limits on out-of-state funding. I think we're also likely to see some fractured opinions and complicated vote-counting there.
Okay, it's almost time to find out how wrong I was with some or all of these predictions. Let's light this candle!
(Oh, briefly, a disclaimer: Naturally, everything I say here is just my musings among friends, is not legal advice or in any way job-related, and shouldn't be attributed to anyone else, including my former, current, or future employers, spouses, pets, all enemies foreign and domestic, and Major League Baseball.)
I heard through the grapevine that DeNovo was
auditioning new contributors hosting Survivor. And then it dawned on me that I haven't posted here since December 9, 2005. I have a total of 14 posts (this makes 15), which is one (now two) more than Wings&Vodka. Apparently the UT contributors are not verbose, and hopefully one of the two UT hopefuls will not follow in our footsteps. Unlike Mr. &Vodka, I am not EIC of law review and can't blame my absence on journal work. I'll blame it on alcohol instead.
My job this summer isn't law related. Well, it's slightly law related. I'll spare the gory details and just say that I don't get paid much, I don't get 2-hour lunches at fancy restaurants, and I'll make the same amount this summer as many of my friends make in about a week and a half. I'm bitter for the first time in my life, and my goal each day is to refrain from running down my interns in the parking lot. There is a lesson to be learned here, I'm sure, I just haven't figured it out yet.
In addition to not paying much, my current job also places me at a computer with Big Brother all over it. MySpace? Blocked. Facebook? Blocked. Webmail? Blocked (but now I just forward everything to my work email so that I can still answer my social email). Blogs? Blocked. Anything worth reading on the internets? Blocked, with the exception of things that Google has cached. It's Sucky McSuckerton, really. Like I said, I'm bitter. So, while I promised PG that I'd post more this summer, my plans have been foiled by SmartFilter. In the meantime I'll try to post on the weekends when I have access to things worth accessing. Of course, judging by the date of my last post, it's not like you all would have missed me anyway.
So... now when do I get to start voting people off the island?
The square root of nine justices is three lawyers/ law students. Perhaps that's the calculation behind Milbarge's idea that he, Will Baude and I do a Slate-style discussion of the soon-to-end Supreme Court term. We may achieve similar levels of agreement -- below the fold, I list the cases in which the justices were not wholly unanimous (many of which were unanimous in result, with just a concurrence filed or a subpart unjoined) -- or perhaps we will hark back to the good ol' disputatious days of the Rehnquist era. All the posts will be at blogdenovo.org/scotus2006.html, and I hope that BTQ, Crescat and De Novo readers add their own opinions to the mix.
The descriptions of the holdings come from the Court's sliplists.
SCHAFFER v. WEAST: In an administrative hearing under the Individuals with Disabilities Education Act challenging a school district's "individualized education program" for a disabled child, the burden of persuasion is properly placed upon the party seeking relief, whether that is the child or the school district. O’CONNOR, J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a concurring opinion. GINSBURG, J., and BREYER, J., filed dissenting opinions. ROBERTS, C. J., took no part in the consideration or decision of the case.
WAGNON v. PRAIRIE BAND POTAWATOMI NATION: Because Kansas' motor fuel tax is a nondiscriminatory tax imposed on off-reservation receipt of fuel by non-Indian distributors, the tax is valid and poses no affront to respondent Nation's sovereignty, even though those distributors subsequently deliver the fuel to the Nation's gas station on the reservation. The interest-balancing test set forth in White Mountain Apache Tribe v. Bracker, 448 U. S. 136, does not apply to a tax that results from an off-reservation transaction between non-Indians. THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, O’CONNOR, SCALIA, SOUTER, and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which KENNEDY, J., joined.
LOCKHART v. UNITED STATES: The United States may offset Social Security benefits to collect a student loan debt that has been outstanding for over 10 years. O’CONNOR, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion.
UNITED STATES v. GEORGIA: Insofar as Title II of the Americans with Disability Act of 1990 creates a private cause of action for damages against States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. SCALIA, J., delivered the opinion for a unanimous Court. STEVENS, J., filed a concurring opinion, in which GINSBURG, J., joined.
VOLVO TRUCKS NORTH AMERICA, INC. v. REEDER- SIMCO GMC, INC.: A manufacturer may not be held liable for secondary-line price discrimination under the Robinson-Patman Act in the absence of a showing that the manufacturer discriminated between dealers competing to resell its product to the same retail customer. The Act centrally addresses price discrimination in cases involving competition between different purchasers for resale of the purchased product. Such competition ordinarily is not involved when a product subject to special order is sold through a customer-specific competitive bidding process. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and O’CONNOR, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which THOMAS, J., joined.
EVANS v. CHAVIS: The Ninth Circuit departed from this Court's interpretation of the Antiterrorism and Effective Death Penalty Act of 1996's 1-year limitations period as applied to California's collateral review system when it found respondent's petition timely despite a 3-year, 1-month, delay in appealing denial of his state collateral review petition. BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and O’CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment.
BROWN v. SANDERS: An invalidated sentencing factor (whether an eligibility factor or not) will render a first-degree murder sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances; the jury's consideration of invalid special circumstances in Sanders' case gave rise to no constitutional violation. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and O’CONNOR, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined.
GONZALES v. OREGON: The Controlled Substances Act does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure. KENNEDY, J., delivered the opinion of the Court, in which STEVENS, O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a dissenting opinion.
RICE v. COLLINS: The Ninth Circuit's attempt to use a set of debatable inferences to set aside a reasonable state-court conclusion does not satisfy the requirements for granting habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996. KENNEDY, J., delivered the opinion for a unanimous Court. BREYER, J., filed a concurring opinion, in which SOUTER, J., joined.
CENTRAL VA. COMMUNITY COLLEGE v. KATZ: A bankruptcy trustee’s proceeding to set aside the debtor’s preferential transfers to state agencies is not barred by sovereign immunity. STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., joined.
UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.: Because respondent failed to renew, after trial, its preverdict motion for judgment as a matter of law, as specified in Federal Rule of Civil Procedure 50(b), the Federal Circuit had no basis for reviewing respondent’s sufficiency of the evidence challenge to the verdict. THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and O’CONNOR, SCALIA, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined.
BUCKEYE CHECK CASHING, INC. v. CARDEGNA: Regardless of whether it is brought in federal or state court, a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause within it, must be resolved by the arbitrator, not by the court. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion. ALITO, J., took no part in the consideration or decision of the case.
LANCE v. DENNIS: The Rooker-Feldman doctrine -- which prevents lower federal courts from exercising jurisdiction over cases brought by "state-court losers" challenging "state-court judgments rendered before the district court proceedings commenced," Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 284 -- does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to that judgment. GINSBURG, with whom SOUTER joins, concurring. "I agree in full with the Court’s correction of the District Court’s Rooker-Feldman error, and therefore join the Court’s opinion. Although JUSTICE STEVENS has persuasively urged that issue preclusion warrants affirmance, see post, at 2–3 (dissenting opinion), that question of Colorado law seems to me best left for full airing and decision on remand."
DOLAN v. POSTAL SERVICE: Dolan's claim against the Postal Service is not barred by an exception for the "negligent transmission of . . . postal matter" to the Federal Tort Claims Act's general waiver of federal sovereign immunity, and thus her suit may proceed. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion. ALITO, J., took no part in the consideration or decision of the case.
OREGON v. GUZEK: The Constitution does not prohibit a State from limiting the innocence-related evidence a capital defendant can introduce at a sentencing proceeding to the evidence introduced at the original trial. BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS,
J., joined. ALITO, J., took no part in the consideration or decision of the case.
UNITED STATES v. GRUBBS: "Anticipatory" search warrants based on an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place are not categorically unconstitutional under the Fourth Amendment's probable-cause provision; the anticipatory warrant at issue did not violate the Amendment's particularity requirement, which does not include the conditions precedent to execution of such a warrant. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined, and in which STEVENS, SOUTER, and GINSBURG, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS and GINSBURG, JJ., joined. ALITO, J., took no part in the consideration or decision of the case.
GEORGIA v. RANDOLPH: In the circumstances here at issue, a physically present co-occupant's stated refusal to permit entry to a home renders warrantless entry and search unreasonable under the Fourth Amendment and invalid as to him. SOUTER, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. STEVENS, J., and BREYER, J., filed concurring opinions. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, J., joined. SCALIA, J., and THOMAS, J., filed dissenting opinions. ALITO, J., took no part in the consideration or decision of the case.
DAY v. MCDONOUGH: In the circumstances presented, the District Court had discretion to correct the State's erroneous time computation and, accordingly, to dismiss Day's federal habeas petition as untimely under the one-year limitation period set forth in the Antiterrorism and Effective Death Penalty Act of 1996. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, and ALITO, JJ., joined. STEVENS, J., filed an opinion dissenting from the judgment, in which BREYER, J., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS and BREYER, JJ., joined.
JONES v. FLOWERS: When mailed notice of a tax sale is returned unclaimed, a State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so; because additional steps were available given the circumstances here, the State's effort to provide notice to petitioner was insufficient to satisfy due process. ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA and KENNEDY, JJ., joined. ALITO, J., took no part in the consideration or decision of the case.
HARTMAN v. MOORE: A plaintiff in a retaliatory-prosecution action filed pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, must plead and show the absence of probable cause for pressing the underlying criminal charges. SOUTER, J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined. ROBERTS, C. J., and ALITO, J., took no part in the consideration or decision of the case.
MARSHALL v. MARSHALL: The Ninth Circuit had no warrant from Congress, or from this Court’s decisions, for its sweeping extension of the “probate exception” this Court has recognized to federal-court jurisdiction; because this case does not fall within the exception’s scope, the District Court properly asserted jurisdiction over petitioner’s tort counterclaim against respondent, despite ongoing proceedings in a Texas Probate Court. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment.
DAIMLERCHRYSLER CORP. v. CUNO: Plaintiff taxpayers have not established their standing to challenge a state franchise tax credit; because they have no standing to challenge that credit, the lower courts erred by considering their claims on the merits. ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, THOMAS, BREYER, and ALITO, JJ., joined. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment.
S. D. WARREN CO. v. MAINE BD. OF ENVIRONMENTAL PROTECTION: Because a hydroelectric dam raises a potential for a "discharge into the navigable waters" of the United States under §401 of the Clean Water Act, the federal license to operate petitioner's dams requires state certification that water protection laws will not be violated. SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined, and in which SCALIA, J., joined as to all but Part III–C.
EBAY INC. v. MERCEXCHANGE, L. L. C.: The traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff applies to disputes arising under the Patent Act. THOMAS, J., delivered the opinion for a unanimous Court. ROBERTS, C. J., filed a concurring opinion, in which SCALIA and GINSBURG, JJ., joined. KENNEDY, J., filed a concurring opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.
BRIGHAM CITY v. STUART: Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. ROBERTS, C. J., delivered the opinion for a unanimous Court. STEVENS, J., filed a concurring opinion.
GARCETTI v. CEBALLOS: When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion.
ANZA v. IDEAL STEEL SUPPLY CORP.: Respondent cannot maintain a Racketeer Influenced and Corrupt Organizations Act claim against petitioners under 18 U. S. C. §1962(c) because it has not shown proximate cause between the injury asserted and the injurious conduct alleged; the Second Circuit must on remand determine whether the proximate cause requirement is met with respect to respondent's §1962(a) claim. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, SOUTER, GINSBURG, and ALITO, JJ., joined, and in which THOMAS, J., joined as to Part III. SCALIA, J., filed a concurring opinion. THOMAS, J., and BREYER, J., filed opinions concurring in part and dissenting in part. (MOHAWK INDUSTRIES, INC., PETITIONER v. SHIRLEY WILLIAMS ET AL. was remanded for consideration in light of ANZA.)
ZEDNER v. UNITED STATES: A defendant may not prospectively waive the application of the Speedy Trial Act of 1974, which generally requires criminal trials to start within 70 days of indictment; petitioner is not estopped from challenging the exclusion of a 91-day delay from the 70-day period; the District Court's decision to exclude that delay is not subject to harmless-error review; the Act was violated because the 91-day delay exceeded the 70 days permitted by the Act. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined, and in which SCALIA, J., joined as to all but Part III–A–2. SCALIA, J., filed an opinion concurring in part and concurring in the judgment.
HOUSE v. BELL: Because House has made the stringent showing required by the actual-innocence exception to the state procedural default rule, his federal habeas corpus action may proceed. KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment in part and dissenting in part, inwhich SCALIA and THOMAS, JJ., joined. ALITO, J., took no part in the consideration or decision of the case.
HUDSON v. MICHIGAN: Violation of the knock-and-announce rule does not require suppression of evidence found in a search. SCALIA, J., delivered the opinion of the Court with respect to Parts I, II, and III, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Part IV, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined. KENNEDY, J., filed an opinionconcurring in part and concurring in the judgment. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
KIRCHER v. PUTNAM FUNDS TRUST: Federal district-court orders remanding removed securities class actions to state court for want of preclusion under the Securities Litigation Uniform Standards Act of 1998 are subject to 28 U. S. C. §1447(d), which makes remand orders unreviewable on appeal. SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined, and in which SCALIA, J., joined as to Parts I, III, and IV. SCALIA, J., filed an opinion concurring in part and concurring in the judgment.
HOWARD DELIVERY SERVICE, INC. v. ZURICH AMERICAN INS. CO.: Insurance carriers' claims for unpaid workers' compensation premiums owed by an employer fall outside the priority, among unsecured creditors' claims, that the Bankruptcy Code allows for unpaid contributions to "an employee benefit plan," 11 U. S. C. §507(a)(5). GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, THOMAS, and BREYER, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which SOUTER and ALITO, JJ., joined.
EMPIRE HEALTHCHOICE ASSURANCE, INC. v. MCVEIGH: Title 28 U. S. C. §1331 -- which authorizes federal jurisdiction over "civil actions arising under the . . . laws . . . of the United States" -- does not encompass a federal suit by a health-care plan providing benefits under the Federal Employees Health Benefits Act of 1959 for reimbursement of medical bills the plan paid on behalf of a plan beneficiary who, injured in an accident, recovered damages (unaided by the plan administrator) in a state-court tort action against a third party alleged to have caused the accident. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which KENNEDY, SOUTER, and ALITO, JJ., joined.
RAPANOS v. UNITED STATES: The Sixth Circuit's judgments that petitioners' wetlands were adjacent to navigable waters and thus covered by the Clean Water Act are vacated, and the cases are remanded. SCALIA, J., announced the judgment of the Court, and delivered anopinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined. ROBERTS, C. J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion.
DAVIS v. WASHINGTON: For Confrontation Clause purposes, statements made during police interrogation under circumstances objectively indicating that the interrogation's primary purpose is to enable police assistance to meet an ongoing emergency are nontestimonial; they are testimonial when the circumstances objectively indicate that there is no such emergency, and that the interrogation's primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. Thus, statements identifying petitioner Davis as the assailant during a 911 call were not testimonial, but statements made by petitioner Hammon's wife to police after he allegedly battered her were testimonial and properly excluded because he did not have the opportunity to cross-examine her, unless he coerced her failure to testify. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment inpart and dissenting in part.
SAMSON v. CALIFORNIA: The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER and BREYER, JJ., joined.
YOUNGBLOOD v. WEST VIRGINIA: Certiorari granted, judgment vacated, and case remanded to the Supreme Court of Appeals of West Virginia for the views of the full court on the federal constitutional claim under Brady v. Maryland, 373 U. S. 83, that petitioner clearly presented there. Per Curiam. SCALIA, J., filed a dissenting opinion, in which THOMAS, J. joined. KENNEDY, J., filed a dissenting opinion.
DIXON v. UNITED STATES: Where petitioner claimed that she acted under duress when she illegally purchased firearms, the jury instructions at her trial did not run afoul of the Due Process Clause by placing the burden on her to establish duress by a preponderance of the evidence; modern common law does not require the Government to bear the burden of disproving her duress defense beyond a reasonable doubt. STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, in which SOUTER, J., joined.
FERNANDEZ-VARGAS v. GONZALES: The new version of an immigration law provision, which permits reinstatement of an order removing an alien present unlawfully if he leaves and unlawfully reenters, applies to those who reentered the United States before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and does not retroactively affect petitioner, who is a continuing violator of the Immigration and Nationality Act. SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion.
BURLINGTON N. & S. F. R. CO. v. WHITE: The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace, but it does cover only those employer actions that would have been materially adverse to a reasonable employee or applicant. Under that standard, there was a sufficient evidentiary basis to support the jury's verdict on respondent's retaliation claim. BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. ALITO, J., filed an opinion concurring in the judgment.
WOODFORD v. NGO: The Prison Litigation Reform Act of 1995 requirement that prisoners exhaust any available administrative remedies before challenging prison conditions in federal court requires proper exhaustion of administrative remedies. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.
LABORATORY CORP. OF AMERICA HOLDINGS v. METABOLITE LABORATORIES, INC.: Certiorari dismissed as improvidently granted. Per Curiam. ROBERTS, C.J. took no part in the consideration or decision of the case. BREYER, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined.
Today in History (1956) - Gamal Abdel Nasser elected president of Egypt. Also, happy birthday to Justice Clarence Thomas.
File under "We would have felt stupider if we'd lost because we didn't make the argument":
Morrissette was convicted of violating the ordinance prohibiting signs “containing religious, educational or charitable messages or which advertise events for nonprofit organizations” that “exceed eight square feet in area and five feet in height.” Morrissette’s signs were 32 square feet. The county does not place such limitations on other categories of signs. Morrissette’s signs read,From the ACLU of Virginia, which regards this as a half-victory because the judge refused to invalidate the entire ordinance as an unconstitutional content-based restriction on speech.
“Welcome to Chesterfield
Where Government is Corrupt
Taxes Are High
and the Schools are Mobile” and
“Ed Barber, Renny Humphrey, Art Warren, Kelly Miller and Lane Ramsey, in their Official Capacity, are Corrupt, Self-Serving Liars. Challenge them to a Polygraph.”
The county argued that the signs were educational and therefore subject to size restrictions. Judge Cleo E. Powell ruled that Morrissette’s signs did not fall in the education category since they expressed his opinions rather than providing factual information.
Three brave souls will start posting on De Novo this week in a bid to replace the inimitable and suffering Wings & Vodka on this blog. The contenders are:
Brian, who posts at Longhorn Law (no prizes for guessing his school);
Nick, blogging at Beyond the Scope and also a UT student;
Brent, who confesses to no previous blogging experience and is a rising Harvard 1L.
I'll let them introduce themselves further.
Greeting, De Novites! I'm making a few repairs to the site right now so that comments will once again work. (De Novo got hit by a comment spammer and HostingMatters seems to have shut off their comments scripts.) Hopefully everything will be working soon.
Update: Comments should be working now. However, the whole site has to rebuild before all entries are working.
The ruling by a federal district judge that the executive branch may indefinitely detain immigrants who have been held deportable by an immigration judge, even on discriminatory grounds, doesn't strike me as the total repudiation of the Constitution that some on the left believe it, but it also doesn't seem as obviously wise as the right thinks, either. If someone is deportable, then I think it is up to the INS/DHS's discretion whether to deport the person, and if they choose to exercise that discretion based on the person's religion or national origin, tough toenails. What I find objectionable is the aspect of the ruling that allows the government to hold people for as long as an official thinks good, with apparently no bounds.
When an immigration judge issues an order of deportation, either the U.S. wants the immigrant gone immediately and shoves him onto a flight, or gives her a bit more grace and lets her leave on her own steam and at her own expense within a few months. Some people don't comply with the order and aren't annoying enough to hunt down, so they stay in the country by grace of bureaucratic overload. But I don't understand what gives the U.S. the right to take a deportable person and deprive him of his liberty without charging him with a crime, prosecuting him and giving him the opportunity to be convicted and properly imprisoned or freed. I agree with the conservatives that if you violate the terms of your stay even by failing to do the paperwork properly, you shouldn't get too pissy when you get kicked out. I am dumbfounded by the conservatives' belief that overstaying a visa makes you the equivalent of a felon convicted of a life-sentence crime.
My infant understanding of immigration law is that violatons of it -- as opposed to violations of other laws that apply to citizens as well as non-citizens -- are penalized by loss of one's status as an immigrant. Punishing people who have violated only the immigration law, particularly when they have done so without mens rea (i.e. forgotten to renew their visa, in contrast to those who are consciously dodging the Border Patrol), with indefinite imprisonment is stretching the government's immigration powers too far and for a purpose with no connection to the proper means and ends of immigration law.
[W]hat I heard so many times resounding from cage to cage, what I said myself so many times in my moments of complete despondency, was not, "Free us, we are innocent!" but "Judge us for whatever we've done!" There is unlimited cruelty in a system that seems to be unable to free the innocent and unable to punish the guilty.
-- Mourad Benchellali in the New York Times
Benchallali ought to know something about it, as most of his family has been charged under French anti-terror laws. Among countries with the rule of law, apparently only the United States cannot put those it accuses of terrorism on trial, on the rationale that an American trial's demands for disclosure and so forth would threaten national security. Perhaps we could just get nations with reasonable-but-less-stringent justice systems -- Britain, France, Germany -- to do our trials for us? It would be an improvement on having nations with wretched human rights records do our interrogations.
In case the 9th Circuit cites anything I write on this blog, I don't want Prof. Volokh, or anyone else for that matter, to be confused about who I am. So, I'm currently a rising 3L at Boalt Hall. I still want to do something with the theme of The Simpsons and the Law. I'm summering at some firm. My billables are not as high as my world cup hours. In fact, my TiVo can easily accomodate all my billables, but not my world cup habit for some strange reason. So, with these impeccable credentials out in the marketplace of ideas, I hope that some clerk will find a way to cite my law school insults post.
Today in History (1966) - The U.S. Supreme Court rules in Miranda v. Arizona that the police must inform suspects of their rights before questioning them. "Miranda right" stands with "I take the Fifth" among the bits of constitutional knowledge Americans can be relied upon to have, thanks to generations of police procedural TV shows; the effect of programs like 24 and The Shield that highlight extra-ordinary, rule breaking behavior is not yet known.
I concede that the second sentence of the Marriage Protection/ Federal Marriage Amendment (henceforth called "the Amendment") -- "Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman" -- is reasonably read as an attempt to keep the judiciary from interpreting federal and state constitutions to require legal recognition of same-sex marriage. Indeed, inasmuch as one believes there is a serious problem with current standards of judicial review, I would advocate expanding the Amendment to prevent judges from finding a right to integrated education, contraception, interracial marriage, etc. in constitutions either.
However, I simply cannot see the first part of the Amendment in that light at all, though I have heard the argument that "Marriage in the United States shall consist only of the union of a man and a woman" is justified by being a slap in the face to an out-of-control judiciary. In this view, the ominous advance of judicial activism, from discredited Lochner, to popularly accepted Brown, Griswold and Loving, to controversial Roe, Lawrence and Goodridge, is so in need of essentially symbolic restraint that the effect the Amendment has upon actual human beings is swept away in the wave of that rhetorical necessity.
A more rational conservative perspective comes from Charles Krauthammer, who does not appear to be a supporter of same-sex unions even if they arrive through legislation.
So why not have a federal constitutional amendment and smite the arrogant solons of Massachusetts, Nebraska and Georgia, and those yet to come, all at once?
Because it is an odd solution for a popular-sovereignty problem to take the gay-marriage issue completely out of the hands of the people. Once the constitutional amendment is passed, should the current ethos about gay marriage change, no people in any state could ever permit gay marriage.This is not perfectly correct; people could permit gay marriage once they overturned the Amendment, in 18th-erased-by-21st fashion. However, to put language into the Constitution that one thinks is likely to be found permanently undesirable by a super-majority of the next generation of Americans is a childish response to the judiciary: If you don't respect the Constitution, then I won't either, so there!
The amendment actually ends up defeating the principle it sets out to uphold. The solution to judicial overreaching is to change the judiciary, not to undo every act of judicial arrogance with a policy-specific constitutional amendment. Where does it end? Yesterday it was school busing and abortion. Today it is flag burning and gay marriage.
It won't end until the Constitution becomes pockmarked with endless policy amendments. The Constitution was never intended to set social policy. Its purpose is to (a) establish the rules of governance and (b) secure for the individual citizen rights against the power of the state. It defaces the Constitution to turn it into a super-legislative policy document.
Krauthammer's position is shared by John McCain, who opposed the amendment despite his belief that "marriage should be reserved for the union of a man and a woman," because "I disagree that the current Constitutional structure provides insufficient mechanisms for ensuring that the public meaning of marriage is not tampered with by activist judges."
The presence of the first sentence of the Amendment, rather than being an appropriate limitation on the power of the third branch, instead is the occasion for a round of conservative celebration of their own straightness.
David Vitter (R-LA): "I don't believe there's any issue that's more important than this one."
John Thune (R-SD): "The federal marriage amendment debate simply is an opportunity for us to affirm our support for marriage."
James Inhofe (R-OK), who used a family photo as an exhibit in Senate debate: "I'm really proud to say that in the recorded history of our family, we've never had a divorce or any kind of a homosexual relationship. So I think that maybe I'm the wrong one to be doing this since I come with such a strong prejudice for strong families."
Profs. Volokh and Kerr offer some thoughts on mean law school grades across the top 20 or so schools, but the discussions are "excluding schools like Chicago and Yale that have their own grading systems." Well let's throw Boalt on top of that too.
In my first ever post at De Novo I noted that one of the benefits of our obscure grading system is that we can't really compare with our classmates too easily so we just don't. I'm glad to see my point reinforced on the macro level as well. (A) I'm not at all shocked that legal education has an underlying need for comparision with "peer" schools about even such trivial things as grading and (B) I'm glad our awkward grading system keeps us away from the market pressures.
A friend e-mailed me this May 12 Washington Post story with the subject line what a tool. The person to whom that referred is a Georgetown University law student, 28-year-old Drew Hoffman, "who was trying to impress his girlfriend" when "he cranked up his new Infiniti to 126 mph on the George Washington Memorial Parkway -- among the highest speeds ever clocked on the stretch of federal road." I suspect some of the animus toward Mr. Hoffman derives from his a) driving a silver 2006 Infiniti G35; and b) trying to lose the police officer by pulling onto a ramp... that led to CIA headquarters.
Though Hoffman will serve a few days in jail, his misdemeanor likely will have fewer long term consequences than the malfeasance of 26-year-old Yalie Joseph Masters, who already is making the summer associate gossip rounds for videotaping a roommate and the roommate's girlfriend in the shower without their knowledge, and then being discovered because he stored the data on a drive accessible to his roommates. A bit ironically, Masters wrote a letter in his first semester of law school advising the government not to permit so many electronic protections that would block discovery, and was in a group of law students who attended hearings and gave testimony on this proposed revision of the FRCP.
The part of the Post story that interested me, however, is at the end: "Hoffman wound up in federal court because the 23.5 mile stretch of parkway from Mount Vernon to McLean -- except the part in the city of Alexandria -- is federal land." I hadn't realized until a colleague explained it to me last month that the District of Columbia doesn't really have a full court system of its own, one that would parallel the set present in most of the U.S. For example, a case like Hoffman's, a routine moving violation, was tried in U.S. District Court rather than a traffic court; D.C. has "Adjudication Services" and a "Traffic Adjudication Appeals Board," but not what I would consider a proper court.
To follow the theme that some Democrats have suggested of "Investing in the Future," perhaps Robert F. Kennedy Jr. could stop bitching about the past in conspiratorial terms and focus on this year's elections in Ohio and Florida, where Republican shenanigans to prevent voting are already known.
(Incidentally, this headline is relatively cool for the Grey Lady.)
Today in History (1949) - George Orwell's Nineteen Eighty-Four is published, and celebrities such as Helen Keller, Dorothy Parker, Danny Kaye, Fredric March, John Garfield, Paul Muni and Edward G. Robinson are named in an FBI report as Communist Party members.
As I didn't see the Underneath Their Robes blogger at the University Club, despite the Scalia-obsession particularly on display of late, I'll fill in. Apparently a Supreme Court justice appearance before a crowd of summer associates is the University Club's way of ginning up membership; they hosted such an event with Anthony Kennedy last year, and last week I found this in my email inbox:
The Board of Governors of The University Club of Washington, DC
Tim Sullivan, President; Laura Arth; Russell George; Peter Goldman; Barry Hart; Chuck Lawrence; Gary Lytle; Richard McBride, Jr.; Michael Olson; Steve Peer; Susanne Wegrzyn; Tom Wilson
requests the pleasure of your company at a reception featuring Associate Justice of the United States Supreme Court and University Club Member Antonin Scalia, in honor of your firm’s Summer Associates, to be held at The University Club on Tuesday, June 6, 2006 from five-thirty to eight o’clock.
(Attire: No denim or athletic shoes)
The University Club of Washington, DC
A tradition of excellence since 1904
Dining, Fitness, Spa, Overnight Accommodations & Private Events
1135 Sixteenth Street, NW, Washington, DC 20036-4885
I don't know what famous people were present, but the bar was open and the food was fairly good. After some non-legal conversation, discussion deteriorated and a couple of my colleagues and I were about to get into an argument over the Poway High 9th Circuit case. Fortunately, at that moment Justice Scalia and his two bodyguards were making their way to the podium. The president of the club gave a blessedly brief introduction, which Scalia corrected by saying that he had not originated the phrase "Hoya Saxa" while a Georgetown undergrad, but he did know what the Greek-Latin combination meant: "What Rocks." He told the worn joke about the lawyer who ends up in hell after choosing it based on the summer associate program, and the room laughed as heartily as though they'd never heard it before. (I rarely tell jokes due to my bad memory and timing, so any joke I've told multiple times has got to be a chestnut.)
I don't remember much of his initial remarks beyond that; Scalia graciously took several questions instead of giving a canned speech -- though as later revealed, he had material -- requesting only that they not be about the new justices, whom he said were fine. According to my recollection, slightly dimmed by chardonnay, the first question came from a University Club man and was about the "increasing reduction" in the Court's caseload. Scalia disagreed that the caseload had grown any smaller recently, and said that while he thinks the Court could handle about 100 cases a year comfortably, it ought not go back to the original practice of being a court of errors that dealt with small matters like mudguards on interstate trucks. He found the criterion of taking cases dealing with a major federal issue, on which lower courts had disagreed, to be more in keeping with the Supreme Court's role as a guide to the lower courts.
A young man noted Chief Justice Roberts's praise of judicial minimalism, and asked how such an idea comported with Scalia's own philosophy. The justice said that he didn't think lawyers would really like for judges to be minimalists because of the lack of guidance this provided the lower courts and attorneys on what the law was. He gave as an example the recent eBay case in which the Court unanimously held that injunctions were not the default remedy for patent infringements, but then split into several concurrences on whether this declaration would make much of a difference. Incidentally, I think this case among others (the very brief dissent in Lawrence, the concurrence in Trinko) indicates a more minimalist tendency in Justice Thomas, who didn't write a concurrence because he had written the majority opinion.
The first question inspired me to ask Scalia's opinion about the proposal to make cert memos public. He made a surprised face and said that he wasn't aware of any such proposal's being afoot. [audience laughter] I said that it was something I'd read from an article by Judge Posner in the New Republic, so perhaps it wasn't quite a proposal. [even more laughter while my ears turned red] Scalia said that if we took all of Richard's proposals, we would be auctioning babies, and after the fresh round of laughter had died down, answered only that he didn't think his law clerks had any reason to be worried.
A man asked who Scalia thought would win, and who be the most gracious loser, in a game of squash among himself, Senator Arlen Specter and another senator, I think Leahy. Scalia said that he certainly would not be the gracious loser, as he didn't even like gracious losers -- people who lost should not be happy about it. He added that Specter was always after him for a squash game, but he hadn't played for a long time due to White House security measures that had made the drive from the University Club home after such a game too onerous.
A woman whom I couldn't see but who had what sounded like an African accent demanded to know Scalia's views on citing international law, about which she had read but wanted to know "from the horse's mouth." Scalia waved a set of papers at her and said that he had the full speech on that topic before her, and for the standing-room-only crowd to sit down if they wanted to hear it all. He added that even for someone who believed in a living Constitution whose meaning was determined by nine lawyers, citation to foreign law didn't make sense; evolving standards of decency ought to be those evolved by Americans, not non-Americans. He made the usual point about how such citations were selective, giving the example of abortion, which in America was "on demand" but not so in nearly every other country. (I don't think this is wholly accurate; while theoretically women in European countries often are supposed to have to justify their abortions by health or economic necessity, this doesn't seem to be an enormous bar to women's getting abortions when they want them. I prefer the U.S. regime, which at least is honest enough to acknowledge that abortions in the first trimester are legally unrestricted.) Scalia attributed the trouble to the popularization of human rights law, which is international and thus seems to oblige American courts to take an interest in what a Zimbabwean court deems to be a human right.
One man asked how Scalia would have voted in Baker v. Carr, and Scalia said he would have voted against "one man, one vote," because to demand such an electoral scheme of the states, while retaining the decidedly disproportionate makeup of the Senate, made no sense. He asked the questioner why this case rather than the usual one originalist-textualists like Scalia got, which was desegregation. Scalia admitted that he agreed with Harlan's Plessy dissent and thus would have voted for the "good side" in Brown, but that he had no problem with coming down on the "bad side" if that was what the Constitution demanded.
Another man asked if Scalia would support making the Constitution easier to amend, so people wouldn't be stuck with erroneous judicial determinations of what it meant. Scalia agreed that the only part of the Constitution he wished he had the power to change was the one that provided for the amendment process, which he thought too difficult. However, he cautioned against making amendment as easy as it was in many European nations, which required only that a statute be passed, an election occur, and the statute be reaffirmed by the subsequent legislature.
There were more questions that I can't remember at the moment, but the last one was memorable: the first questioner asked Scalia to give advice to the many wannabe lawyers present. Scalia at first said, "Work hard," then seemed to contradict that with advice he said the attorneys who ran the firms at which the summer associates were working wouldn't like. He then launched into a critique of modern Biglaw practice, in which young attorneys worked long hours and failed to fulfill their responsibilities aside from those to the firm and the law. "I live in Virginia, and I look around at who coaches Little League, who the soccer coaches are, and they ain't lawyers. And that's a darn shame." The total devotion of young associates to the law meant they no longer contributed their talents to their communities. By way of contrast, Scalia described John Marshall's civic roles while Chief Justice: leader of the local militia and an expedition to find a canal route, founder of a social club that he attended at least once a week.
I wondered if Scalia had aired this diatribe against overworking associates before a family audience, as at least one of his children is a partner at a major D.C. law firm.
Former co-blogger Chris Geidner and I are having a back and forth on Bush's rhetoric on the Federal Marriage Amendment, which allows the Republicans to pretend the elephant in the room isn't really there and instead blame everything on activist judges. Will Baude picks apart Jason Mazzone's criticisms of the FMA, particularly the already-cliched claim that the proposed amendment would be the first to take away rights rather than grant them. One amendment that Will fails to note is the 14th.
As many other feminists have pointed out, the 14th Amendment was not an unmitigated good, inasmuch as it first enshrined gender discrimination into the Constitution by specifying "But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." [emphases added]
The usage of masculine pronouns in the original Constitution could be passed over as grammatical convention, but the repeated and unnecessary adjective of male hardly can be. The 14th would have done quite as well without it... or would it? That might be an interesting historical hypothesis: would Southern states have extended the franchise to women in a bid to have their representation reduced less than that of Northern states that didn't grant women's suffrage? In any American state, people of color were a minority, while women were roughly half the population (except perhaps in some new frontier states).
Anyway, I find any description of same-sex marriage that includes "the right of gay men to marry the men they love" to be rather silly. People who identify as homosexuals can and do marry, and framing it as a matter of love opens the slippery slope to those who would say that a man ought to be able to marry the sister he loves, too.
This is a matter of gender: every person I know who does not favor legal recognition of same-sex unions thinks that men and women are fundamentally different in a way that is relevant to their marital roles. Otherwise, why care whether marriage is one man and one woman, or two men, or two women? The law no longer makes different requirements of men and women in marriage (nor divorce). If I successfully petitioned to have my sex legally changed so I could marry a woman, there's nothing in the law of marriage that I would fail to fulfill by not being physically male.
Indeed, I assume that the folks at immigration don't demand that one strip down before entering the country, so if I wanted a Russian mail order bride of my very own, I could just have her bribe a Russian official to issue her papers identifying her as male, tell her to cut her hair short and try to speak with a deep voice, and she would be my husband and I would be her wife under U.S. law. "In Russia, I am a man," she would explain in her delightful accent to the judge overseeing the fraud prosecution against us.
A state that married us but later discovered my spouse's lack of male genitalia might attempt to sever our union on the ground that it was not between a man and a woman, but few states trouble to define what constitutes a "man" and what a "woman," out of the comfortably pre-deconstructionist belief that these are self-evident concepts. A woman has some body parts that men do not, and vice versa. What this means for sex-ambiguous Americans, I don't know -- the old medical regime was to lop down anything that didn't seem sufficiently useful, ignore the undescended testes and declare the baby a girl, this classification legally inscribed by way of the birth certificate. Even in these more enlightened times, parents still must write something down under sex. Besides, when the hormonally male but shortened-into-female found him/herself interested in women, s/he was a lesbian, and the state's hostility to his/her sexual preference is no more objectionable than that to the orientation of lesbians who are thoroughly physically women.