February 13, 2014
"It seemed to me that our job [as Supreme Court Justices] was to put into the law of this country what the Founding Fathers refused to put into the Constitution. The trouble with the Constitution was, that the whole purpose of the Constitution was to free the Americans. They wanted to be free. At the same time, the Constitution says that we’re gonna free all of the White people in this country, [it also] said that any Black person who escaped slavery would be, by the Constitution, put back into slavery. It was giving one man freedom and another man slavery. And it’s still not completely corrected."

Thurgood Marshall, in a rare, televised interview he gave back in 1987.  This appears to be one of only two media interviews Justice Marshall gave during his entire career.

November 24, 2012
"One theme we continue to see in cases like these is that the Supreme Court lineup is woefully lacking experience in the actual practice of criminal law. Of the nine justices, only Sonia Sotomayor and Samuel Alito have any such experience, both as prosecutors. The court hasn’t had a justice with any real criminal defense experience since Thurgood Marshall retired in 1992. That’s worth restating: There hasn’t been a single voice on the Supreme Court with any real criminal defense experience in more than 20 years."

Radley Balko

June 28, 2012
I wonder if I would put this on my resume.  ”Accomplishments: Cited by Supreme Court as ‘Able Discharger.’”
Sounds legitimate.

I wonder if I would put this on my resume.  ”Accomplishments: Cited by Supreme Court as ‘Able Discharger.’”

Sounds legitimate.

6:29pm  |   URL: http://tmblr.co/ZMMjnxOJdt_q
Filed under: supreme court 
June 27, 2012
On SCOTUS’s Coming Healthcare Decision

I think one of the more poignant talking points that’s been lost in the discussion over the Individual Mandate in the Affordable Care act is the degree of consensus in the legal academy regarding whether the law was constitutional.  I’ve touched on this briefly in the past, but it bares a second look.  

When the constitutional challenges to the Individual Mandate started, many folks in the legal academy took one look at the precedents and thought the smart money was on a 6-3, 7-2, or 8-1 decision upholding the mandate.  That assumption was only challenged when it seemed like the conservative side of the bench was not enthusiastic about the Mandate.  A recent poll from Bloomberg confirms the trend:

Bloomberg surveyed 21 top constitutional scholars and found that, while 19 think the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so[.]

When the initial challenges to the Individual Mandate were issued, the majority consensus was that the mandate would be upheld on the basis of established case law.  This consensus is represented elsewhere by, inter alia, an ABA journal survey of legal practitioners, academics and court watchers published earlier this year in which 85% of respondents believed the mandate would be upheld.  Erwin Chemerinsky, Dean of U. Cal. Irvine School of law, who has written more legal treatises accidentally in his sleep than most lawyers will ever read, noted at the time:

Since 1936, not one federal law has been declared unconstitutional as exceeding the scope of Congress’s taxing and spending power and no spending program has ever been struck down because its conditions on the states are too onerous.

Christina Whitman, who teaches at U. Michigan school of law, notes at the first link above that “The precedent makes this a very easy case[.]”  Jesse Choper, from U. Cal. at Berkely, noted that “It’s relatively straightforward — if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”  Elsewhere, Orin Kerr, who teaches at George Mason University and is a regular Volokh Conspiracy contributor (not exactly a crowd friendly to the ACA), said near the outset of the ACA litigation that there is a less than 1 percent chance that the courts will invalidate the individual mandate.”  So that should give you an idea on where the legal consensus was at the outset of this litigation, even assuming the ideological leanings of the Court.

What will most define the healthcare ruling when it comes down is the Court’s decision to either adhere to precedent, or depart from it.  A departure from precedent would of course be a textbook example of what often gets called “judicial activism.”  But that is really just a term that people use when they don’t like the way a decision goes.  Nonetheless, if one defines activism as wanton departure from legal precedent, the Roberts Court has been one of the most activist courts in history.  Justice Stevens noted in his dissent in Citizens United:

[T]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990).  Relying largely on individual dissenting opinions,  the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540 U. S. 93 (2003), FEC v.  Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986)  (MCFL),  NRWC, 459 U. S. 197, and  California Medical Assn. v. FEC, 453 U. S. 182 (1981).

Whatever one thinks of the constitutionality of the ACA, there is no question that if it is overturned, it will be a decision based on public policy, and not stare decisis.  To be sure, there’s nothing inherently wrong with that: courts make decisions based on policy all the time (virtually every legal practitioner has a laundry list of bad precedent that they think should be re-visted and overruled).  But I suspect that the justices who vote to strike down the mandate will attempt to argue, as the majority did in Citizens United, that they are actually being faithful to the court’s precedents.  Nothing could be further from the truth.

June 25, 2012
"Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy."

Paul Campos

Everything Paul Campos says should be taken with a grain of salt after he was outed by Brian Leiter for smearing his colleagues in a desperate, fact-free, and self-serving tirade against the rest of legal academia.  

Nonetheless, I couldn’t help but crack a smile at seeing Nino once again called out by academics for a lack of intellectual integrity, even if from an ironic quarter.  Lyle Denniston, a court watcher of some fifty years, was also unimpressed by Scalia’s Arizona decision, as was Kevin R. Johnson, Dean of the UC Davis school of law.  So Campos is in credible company, at least.

April 1, 2012
"One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court’s conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn’t it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren’t they? And they are supposed to be following existing precedent, aren’t they? It’s the Supreme Court that’s the outlier here."

Andrew Cohen.  Not that I pretend that Andrew Cohen reads my blog, but I’d offer the same comments that I made earlier with respect to the Supreme Court’s approach to oral argument.  Tough questions at oral argument don’t necessarily mean that a justice is going to vote against a law; sometimes they pepper litigants with tough questions because they want the litigants to help the justices themselves respond to foreseeable objections when they go to write their opinion.  As frustrating as it can be to hear Scalia flippantly conjure up nightmares of  ’broccoli bondage,’  it’s certainly conceivable that he was going down that road with an ulterior motive.

I do, however, take Cohen’s point with regard to the lower circuits.  Though I think that merely speaks more to the idea that the Supreme Court is as much a political institution as it is a legal institution.  The only way judges get on the Supreme Court is by being hand-picked by a politician for the job.  There’s plenty of extremely competent jurists of diverse political and legal philosophies who are qualified to sit on the High Court.  But the people who make the cut are selected with certain policy goals in mind, and not simply because they’re qualified judges.

March 31, 2012
A few thoughts on Obamacare and the Supreme Court


I don’t know what’s going to happen—but I think that knocking over the entire Affordable Care Act is too sweeping an act for a Supreme Court that doesn’t want to be viewed as overly political. This is a case that demands a clear and principled ruling and should delineate the bounds of federal power for decades. It’s a case that law students will read for a century. The court needs to draw a clear line for what is and is not acceptable.

The mandate could stay or go. But I think that knocking over the entire act is too much of an overreach for a court that doesn’t want to look like it’s overreaching. And drawing a principled line where the mandate is impermissible but other ways of using the tax code are permissible is very difficult. Ultimately, I don’t see a terribly sweeping ruling from the court. My guess is that, at most, the court will say, “The mandate is unconstitutional. This is why. Here’s how to fix it.” Or, just as likely, “We’re very worried about he constitutionality of the mandate, so don’t do it again. Or if you do, don’t go any further.”

LTMC:  One thing that’s good for people to remember when thinking about the Supreme Court is that tough questioning during oral arguments doesn’t necessarily mean that a justice is going to vote against the law.  Quite often the judges are asking the tough questions because they want the litigants to help them respond to objections they know are going to come up when they write their opinions.  So, e.g., “Broccoli-mania” might not be dispositive.

That being said, there really is no way to know how the justices are going to vote.  If we assume that ginsburg, breyer, kagan and sotomayor will vote in favor of the law, that means that only one of the conservative justices needs to flip.  Scalia is in play because of his decision in Gonzales v. Raich, which demonstrated that interstate commerce doesn’t require a transaction to occur “across state lines” to be subject to federal regulation.  Roberts is in play because traditionally conservative notions of judicial restraint may move him to exercise precisely that.  Kennedy is in play for the same reason.  Even Alito is in play based on his dissent in Snyder v. Phelps, where he was willing to circumscribe the 1st Amendment in order to make traditionally “actionable” speech subject to civil remedies.  Which suggests that he doesn’t hold individual liberty as a shibboleth that need be clung to in his jurisprudence.

I think Kennedy is actually the least likely to flip because he tends to be in favor of  robust notions of individual rights in a “negative liberty” tradition; hence the reason why he voted against anti-sodomy laws in Lawrence v. Texas, and why he voted to force California to release 40,000+ prisoners due to 8th amendment violations in Plata v. Brown, which Scalia panned as “the most radical injunction issued by a court in our nation’s history.”  Kennedy is probably more suspicious of laws that burden individual rights from a “negative liberty” standpoint than any of the Conservatives on the Court, and is far more consistent in his jurisprudence on that front.

So it really is up in the air at this point.  It only takes one of the Conservative justices to flip to uphold the mandate, but no one can say who that would be.  Either way, there’s no question that this is one of the more important supreme court cases since D.C. v. Heller or Citizens United.  The decision will fundamentally shape the direction of our nation’s healthcare policy upon its resolution.  We’ll just have to wait and see what direction that might be.

February 21, 2012
On Reading Cases, Ctd.



squashed replied to your post: Personal Notes: On Reading Cases
And when it’s a Thomas opinion, I close the book. Because Thomas’s opinions are written terribly. Scalia was at least witty.
Thomas is horrible 99% of the time. But he is actually fairly lucid when he’s writing…

I’m not going to address Affirmative Action on the whole as theory or practice but I am sympathetic to your unease in finding yourself nodding along to Justice Thomas. I had the similar and unfortunate experience last week while reviewing my Con Law readings. His Grutter dissent is actually a stirring revival of the important and beautiful colorblind interpretation the Equal Protection Clause as well as a reality check on how lax the Court can be with the second prong of the Strict Scrutiny inquiry. I admit, I felt fairly strange telling a friend after class that I was both the President of my law school’s ACLU and (temporarily) in agreeance with Justice Thomas.


Thankfully this sympathy for the (originalist) devil(s) didn’t last too long. This morning I draw caricatures of Scalia sobbing like a baby in the margins of his particularly histrionic United States v. Virginia (1996) dissent.       D:    < Scalia

Anywho, relevant news is relevant: New York Times - Supreme Court Agrees to Hear Affirmative Action Case

LTMC: if you ever want a reason to hate Justice Scalia, just read Whren v. United States, any case involving the Establishment Clause, or his 8th Amendment jurisprudence, which can be summed up in the following churlish phrase:

"No Proportionality principle lolol" - J. Scalia

That being said, Scalia’s approach to the doctrine of lenity, and his 6th Amendment jurisprudence are both, and I hate to say it…excellent.  His interpretation of the Confrontation Clause has saved many a defendant from out-of-court testimony, and his approach to lenity, while sadly not the majority view, nonetheless grants criminal defendants a favorable presumption when the meaning of a criminal statute is unclear or ambiguous.  His hard-on for English Common-law as a barometer for original intent is a liability more often than not, but occasionally it leads to good legal precedent.  Occasionally.

February 21, 2012
On Reading Cases, Ctd.

squashed replied to your post: Personal Notes: On Reading Cases
And when it’s a Thomas opinion, I close the book. Because Thomas’s opinions are written terribly. Scalia was at least witty.
Thomas is horrible 99% of the time.  But he is actually fairly lucid when he’s writing on very specific topics.  His opinion from Grutter v. Bollinger, dissenting on the question of the constitutionality of affirmative action programs, begins with a quote from Frederick Douglass which shook my orthodox “liberal” confidence in the desirability of affirmative action programs:
“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).
After reading that quote, I went and read through some of Frederick Douglass’s writings, and since then, I’ve always been on the fence about affirmative action programs.  On the one hand, I do think they help remedy the residual effects of structural De Jure inequality.  But it’s also clear to me that affirmative action programs often create an imprimatur of infantilization and existential disability, the very same that Douglass was so afraid of.  I’m reminded of James Brown’s laconic hit, "I Don’t Want Nobody to Give Me Nothing (Open up the Door and I’ll Take it Myself)."  Brown, of course, merely wanted equality of opportunity, not affirmative aid.  But the question then becomes whether the “door can be opened” to equality of opportunity  in the face of unconscious racism, particularly when perpetuated under ostensibly color-blind justifications (e.g. white felons being hired more often than black felons).  In this sense, affirmative action seems bad in theory but necessary in practice, until culturally we can make more progress towards de-coupling unconscious racism from our collective psyche.  So in that sense, I still disagree with Thomas, but his opinion certainly had an impact on my thinking.

February 13, 2012

HOLY CRAP OF THE DAY: Supreme Court Justice Stephen Breyer apparently was robbed at knifepoint while vacation in the Caribbean. Hearing word it was a machete. More info as we get it. EDIT:  From NPR: “Justice Breyer, his wife Joanna and a friend were at the Breyer home on Nevis last Thursday when a man armed with a machete broke in, took about $1,000 in cash and fled.”


HOLY CRAP OF THE DAY: Supreme Court Justice Stephen Breyer apparently was robbed at knifepoint while vacation in the Caribbean. Hearing word it was a machete. More info as we get it. EDIT:  From NPR: “Justice Breyer, his wife Joanna and a friend were at the Breyer home on Nevis last Thursday when a man armed with a machete broke in, took about $1,000 in cash and fled.”

(via shortformblog)

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