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Wednesday, March 30, 2005

Smith: It Wasn't the Court

An interesting point from the Smith v. City of Jackson case is the idea that there was not a majority of the Court on board for the determination that "disparate impact" was all that was required to prove age discrimination. The hopeless four signed Justice Stevens' opinion, but Scalia wrote for himself on the issue, and instead of agreeing with the plurality, said that he was constrained by Chevron to defer to the EEOC's determination.

So, the Supreme Court did not "Remove [the] Hurdle to Suits Alleging Age Bias" (NYT headline) or "ease [the] way for age discrimination suits" (CNN headline). It was, instead, the EEOC, and the Court was constrained to accept the determination.

So we have progress without the Court having to torture statutes and rewrite the Constitution. A novel idea!

Continue Reading "Smith: It Wasn't the Court" . . .

Implied Rights and Avoidance in Title IX

My Federal Courts Professor has told us on several occasions that "implied rights of action are not growth stocks." Sandoval all but overruled the Cort v. Ash test for when to imply a right of action, and Scalia's majority opinion held that a private right of action must be based on legislative intent, and "legal context matters only to the extent it clarifies text." Thus, not only can the Court not imply a right of action without Congress wanting one, they can't even dig one up in the legislative history if it's not in the text.

The Court was true to this, sort of, in Jackson v. Birmingham, handed down yesterday, and holding that one who blows the whistle on sex discrimination, and is then retaliated against, can bring an action under Title IX. To be sure, Justice O'Connor's majority opinion does not question Sandoval, instead avoids the implied right of action issue and just considers the retaliation following the whistle-blowing itself "sex discrimination."

So, it seems, the prohibition on implied rights of action is safe.

The problem, however is the court's re-rewriting of the statute, as noted by Erasmus below. It seems like to get where they want, the majority would rather mess with the definition of "sex discrimination" than revisit the implied right issue. Thus, we get:
We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional "discrimination" "on the basis of sex," in violation of Title IX.
This is more judicial review nonsense. Like Erasmus' relay race analogy, the Court here found that since "[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished" and "if retaliation were not prohibited, Title IX's enforcement scheme would unravel," it should "fix" the statute to remedy these problems. The court even noted that "teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators. Indeed, sometimes adult employees are "the only effective adversar[ies]" of discrimination in schools." This may be true, but it has nothing to do with the interpretation of the statute.

So, it seems, implied rights of action are becoming a cannon of avoidance, meaning that in order to save this doctrine we will have to put up with torturing of validly-enacted statutes to get where the hopeless four and the O'C want to get. An interesting corrolary is the nondelegation doctrine and John Manning's article "The Nondelegation Doctrine as a Canon of Avoidance," 2000 Supreme Court Review 223 (2000).

The difference, however, is that in the nondelegation context, the Court has basically upheld the doctrine, allbeit not exactly on its terms. The Court construes statutes narrowly to avoid deciding the constitutional issue of delegation, but the end holding is effectively constraining agency discretion as mandated by Article I. Here, however, the Court is interpreting the statute to avoid deciding the implied right issue, but undercutting the very purpose for the prohibition on implied rights in the first place. It seems the O'C wants to be able to imply her own rights of action, but doesn't want future courts to do it themselves. An archetype of her jurisprudence.

So although the Court is torturing statutes to uphold Constitutional principles, in the implied right context it does them not nearly as much good as in the nondelegation context because they're not furthering the Constitutional principle anyway. They might as well call a spade a spade because the effect is the same.

Continue Reading "Implied Rights and Avoidance in Title IX" . . .

Tuesday, March 29, 2005

The O'C, Where All the Laws Are Good Looking

Justice O'Connor has broken bad again, this time siding with the liberal foursome to achieve good results in Jackson v. Birmingham Bd. of Ed. O'Connor's opinion holds that Title IX's implied private right of action for discrimination "on the basis of sex" includes a right of action for claims of retaliation. The retaliation alleged in this case was the firing of a basketball coach who complained about the state's unequal treatment of his female athletes. Although Jackson was not being discriminated against on account of his own sex, the fact that the retaliatory firing was prompted by a complaint about sex discrimination brings the retaliation claim within Title IX's private right of action, the majority reasons. As Justice Thomas points out in dissent, however, the outcome is not the result of a faithful attempt to interpret the pertinent provisions of Title IX. The finding of a right of action for retaliation in this case amounts to a new, judicially-created "prophylactic enforcement mechanism" with no basis in the text of the statute at hand. The Court is just putting some new polish on an old law, the luster of which has faded with time.

I imagine the majority sees itself as picking up the baton in the last leg of the lawmaking relay. The House, Senate, and Executive are huffing and puffing on the side of the track while Justice O'Connor et al. sprint forward to break the tape. And the result of this strenuous effort? A perfect statute -- better than Congress intended and the President signed into law. Forget about the fussy formalism of the textualists, the majority should say, look at the result we've given you America and tell us the world isn't a better place?

Justice O'Connor, my thank-you note is in the mail.

Continue Reading "The O'C, Where All the Laws Are Good Looking" . . .

For the Madison Fetishists

The New York Times reports
The Library of Congress has released its James Madison Papers online. The papers, from the library's manuscript division, consist of some 12,000 items captured in about 72,000 digital images, documenting the life of the socalled Father of the Constitution through correspondence, personal notes, drafts of letters and legislation, an autobiography, legal and financial documents and miscellaneous manuscripts. Organized into six series from 1723 to 1836, the collection includes a complete copy of Thomas Jefferson's notes from the Continental Congress of 1776, as well as correspondence with Dolley Payne Madison, Thomas Jefferson, James Monroe, Alexander Hamilton and George Washington, among others. The James Madison Papers are available on the library's American Memory Web site.
Meanwhile, the complete papers of Thomas Jefferson should be available by 2026.

Continue Reading "For the Madison Fetishists" . . .

Monday, March 28, 2005

Two Thoughts on MGM v. Grokster

Although a lot of digital ink has already been spilt in the run up to oral arguments in MGM v. Grokster, there are still two issues that bear mention.

Willful Blindness
The Ninth and Seventh Circuits' disagreement over the correct interpretation of Sony's "substantial noninfringing use" standard has already been pretty well covered elsewhere. But another interesting question that gets less press is whether the Court will rule on the issue of willful blindness. While guest blogging for Larry Lessig last August, Tim Wu predicted that the Supreme Court would grant cert partly because of the disagreement over the relevance of willful blindness to secondary copyright liability. In Aimster, Judge Posner wrote "[w]illful blindness is knowledge, in copyright law . . . as it is in the law generally," while the Ninth Circuit declared "there is no separate 'blind eye' theory . . . of vicarious liability." Who the Court sides with (if it reaches this question) will determine how much room courts will have to look into suspect motives of potential secondary infringers.

Legality of Peer-to-Peer Architecture
The most entertaining amicus brief for either side is unquestionably the one by Eben Moglen on behalf of Grokster (for example, stating the question presented as "Did the Court of Appeals rightly conclude that the doctrine of contributory copyright infringement cannot be used to prohibit the Internet?" and noting that "[i]n referring to this as a very important case, petitioners characteristically mistake self-importance for the real thing."). The brief's attempt to shock, however, is not without a point. Overlooked in much of the discussion of Grokster's dubious motives and possible inducement to infringement is the fact that MGM et al. argue for an interpretation of secondary liability that implicates all true peer-to-peer systems, no matter how innocently intentioned or general in purpose. Any digital system that lacks a means of central control would be per se illegitimate and sanctioned by the imposition of blanket copyright liability for infringing uses by third parties. Win or lose, Grokster's fate is fairly unimportant in comparison to this larger issue.

Continue Reading "Two Thoughts on MGM v. Grokster" . . .

Not Much From the Medellin Arguments

The reports from SCOTUSblog and others (here and here) all seem to suggest that the Justices will likely not give us a ruling on the merits.

My favorite exchange, reported by Tony Mauro is between Justice Kennedy and Donald Donovan (Debevoise & Plimpton, Medellin's lawyer). Kennedy asked Donovan whether there was any precedent for "an international tribunal in effect to bind this Court."

Donovan said that the Supremacy Clause makes treaties the supreme law of the land.

Kennedy replied, "So you're telling me you don't have a case."

Continue Reading "Not Much From the Medellin Arguments" . . .

How Schiavo Might Have Won & More Stupid Hypocrisy Criticism

. . . in this Findlaw essay by Mike Dorf (via How Appealing).

Dorf basically thinks that the Schindlers should have brought the Right-to-Life claim earlier. He reasons that since Cruzan v. Missouri Dep't of Health held that a person has a right not to be involuntarily connected to a feeding tube, but only after clear and convincing evidence, there is also a right not to have the tube disconnected when there is clear and convincing evidence that a patient would wish it stay connected.

Dorf, by the way, agrees that "while Terri's Law may be criticized as unwise, de novo review is probably constitutionally valid." No one, even Dorf, really thinks this was unconstitutional.

This is all fine, but Dorf has to end with a jab. In discussing the possible reasons for the Schindlers not bringing the Right-to-Life substantive due process claim, he suggests:
Perhaps their lawyers were blinded by ideology. A federal "right to life" based on Cruzan falls within the general doctrine of "substantive due process," under which the Supreme Court has invalidated state laws prohibiting contraception, abortion, and sodomy. That doctrine is anathema to religious conservatives, who scorn it as judicial activism run amok. It is the doctrine that underwrote Roe v. Wade.

It is possible that in drafting their original complaint, the Schindlers' lawyers could not bring themselves to rely on cases that the pro-life movement abhors, and that they did so, in their second federal complaint, only when their desperation would color the courts' perception of the issue.

If this explanation is accurate, it would be ironic indeed, for it would mean that the Schindlers' and their lawyers' intellectual consistency precluded them from using to their advantage a gift bestowed by a Congress with no such qualms--a Congress that in enacting Terri's Law was willing to cast aside the spirit if not the letter of principles it often professes to hold dear: principles of federalism, separation of powers, and the rule of law.
First of all, isn't it silly to think that the parents care about unduly invoking SDP in trying to save their daughter's life? Maybe they've got some weird lawyers, but the lawyers did, in the end, raise the claim, which makes me think that Dorf's conjecture is nonsense.

Second, again I still wonder what passing a jurisdictional statute has to due with substantive due process, and "principles of federalism, separation of powers, and the rule of law."

And why would this even by SDP? Just because Cruzan is SDP does not mean that the reverse--a right to life without clear and convincing evidence that you'd want to be killed falls under the same category. The Due Process Clause reads "nor shall any state deprive any person of life, liberty, or property, without due process of law." There is nothing there about a right to let oneself be killed. What is there is a right to not be deprived of life without due process. The "substantive" innovation of Cruzan is the idea that there is a "right" to have the tube removed. Here, the question is whether Terri Schiavo is being denied the "right" to life (not an innovation) without clear and convincing evidence that she wanted it to be such. I don't see how that isn't procedural.

Continue Reading "How Schiavo Might Have Won & More Stupid Hypocrisy Criticism" . . .

Friday, March 25, 2005

Leiter's Notion of "Sharp Analysis"

University of Texas Law Professor Brian Leiter fancies himself a Nietzschean, which perhaps lets him off the hook for the failure to make actual arguments, at least insofar as one reads Nietsche as a misologue. But he also teaches law, which should not excuse him. He has chosen to weigh in on the Schiavo matter in a way that violates both his own principles, logic, and any standard of decency like "do not be a religious bigot."

Leiter commends his readers to read Juan Cole's post on Schiavo's case as evidence of the Republican Party's tendency toward the establishment of a theocracy. Nevermind the likelihood that a party whose Southern base is largely Southern Baptist would attempt to push my own Popish faith on the country (doesn't Leiter live in Texas?), let's look at the logic of Cole's argument. Let's also note along the way that Leiter typically likes to bash those who disagree with him for lacking professional credentials to make their arguments. Juan Cole has no credentials for the arguments he makes, save for the rough analogy he is arguing to Islamist regimes; but his total misunderstanding of the American or Catholic regimes in this case hardly permits that knowledge of the Middle East to grant him professional competence. I say this to let Prof. Cole off the hook for the silliness of his rant. But Leiter can't make recourse to that excuse, since it is his job, for which he has an endowed chair, to make legal arguments.

Here's the core of Cole's anti-religious rambling:

[T]he most frightening thing about the entire affair is that public figures like congressmen inserted themselves into the case in order to uphold religious strictures. The lawyer arguing against the husband let the cat out of the bag, as reported by the NYT: ' The lawyer, David Gibbs, also said Ms. Schiavo's religious beliefs as a Roman Catholic were being infringed because Pope John Paul II has deemed it unacceptable for Catholics to refuse food and water. "We are now in a position where a court has ordered her to disobey her church and even jeopardize her eternal soul," Mr. Gibbs said. '

In other words, the United States Congress acted in part on behalf of the Roman Catholic church. Both of these public bodies interfered in the private affairs of the Schiavos, just as the fundamentalist Egyptian, Nabih El-Wahsh, tried to interfere in the marriage of Nawal El Saadawi.

In other words...no. Let us begin with the fact that Cole here quotes an argument made by Schiavo's parents' lawyer after the Congressional debate. Let us further add that the argument their lawyer made is in no way representative of Catholic theology (which would not admit of the notion that an unconscious woman could jeopardize her sould as a result of somebody else's decision). So Cole is arguing that Congress is responsible for the argument of a lawyer made as a result of their law, but in no way enabled or encouraged by it, and he is arguing that a patently silly argument theologically was advanced by Congress "on behalf of the Roman Catholic Church." Even if the argument of the lawyer were not theologically suspect, legally it would amount to a not-implausible claim that Ms. Schiavo had a free exercise right here that was being overridden by the court. I don't think it would amount to a persuasive legal argument, but it would not be facially unacceptable and it would certainly not amount to a theocratic claim. This is the worst sort of old-fashioned anti-catholic bigotry, it defies logic, and it is utterly vile. "Sharp analysis" indeed.

Surely Prof. Leiter, even if he agrees with me that this law should not have been passed, would not think that the post hoc ergo propter hoc fallacy should saddle the Congress with liability for this silly argument by Schiavo's family's lawyer. Further, he should be able (or his academic expert, Cole, should be able) to note that the argument advanced by said lawyer is in no way representative of the Catholic church or its theology.

In other words, there is zero evidence that Congress was putting itself in the service of the Catholic Church (which just this week put on a big initiative to ramp up its public, political opposition to the death penalty--was Congressman DeLay secretly pushing that agenda, too?), and zero evidence therefore that the silly law they passed this week was the beginning of a theocratic movement.

It is sad to see two academics who hold prestigious posts at excellent schools lending their names and their credentials to arguments to clearly redolent of the worst era of anti-Catholic bias in this nation. I anxiously await their retraction of this calumny.

Continue Reading "Leiter's Notion of "Sharp Analysis"" . . .

Good SCOTUSblog Summary of Medellin

. . . can be accessed here. Arguments are on Monday. We'll surely be returning to discuss the case after there are reports on how the Justices react.

Continue Reading "Good SCOTUSblog Summary of Medellin" . . .

All Well in Libertopia?


I would have thought that when I wrote: "For the record, I think they are wrong for supporting it, but just because I think it's imprudent to get involved in a single family's case in this way, particularly when the odds of success appear remote" in my original post I was signalling that I thought this was a bad law. Not all bad law is a violation of federalism, which is not just a catch all for "stuff one likes about the law as a (choose one: conservative, libertarian, etc.)." Indeed, even properly construed, federalism is hardly absolute and its contours are not altogether obvious, so that one always has to ask why federalism here and why not there. Quite clearly, in this case, it was legitimate to wonder about due process. I don't think we needed more than the Supreme Court's cert. review (which was already available), so I don't think the law should have passed. But there is nothing so marvelous about the certiorari process that it threatens the republic to have altered it here, and nothing so federalist about it that to alter it, however improvidently (shall I say again I would not have voted for this law?), is to threaten federalism.

I also think that if the law had been written in such a fashion as to ask the courts what its authors probably intended, the consequences for federalism and the rule of law would be as you (and Charles Fried in the NYTimes) have suggested. I look at this case, in this sense, as a vindication of textualism. The bill that passed, probably for good reasons (some responsible legislators who were willing to support a reasonable extension of jurisdiction, rather than an untenable one), simply does not, as you appear to acknowledge, do much that is so radical. It certainly does not permit, let alone require, the setting aside of state law.

You may have more insight into what Sen. Frist and others in the majority intended. I'm interested, as a textualist, in what they passed. What they passed did not amount to a Congressional aggrandizement or a de facto appellate court, because, in fact, they did not direct any substantive outcome. They got what they asked for--however much that may differ from (a) what they wanted or (b) what they wanted to ask for...[Cf. this part of an exchange between Orin Kerr and Hugh Hewitt on similar issues.]

So I hope we are clear that I share your disappointment that people supported this legislation. I just do not see the grounds for opposing it as arising so much from federalism and the separation of powers as from the bad precedent (which doesn't disappear by their having written "this is no precedent" into the bill) for behavior by the national legislature, from the false hope that it gave the Schiavo family, given that nobody was really able to suggest there was a federal case here likely to win on the merits (including Judge Wilson in his dissent).

P.S. There is a St. Thomas More, who is a hero of mine, but I do not claim St. as part of my pseudonym!

Continue Reading "All Well in Libertopia?" . . .

The "Bad Man" and Ms. Schiavo

Perhaps this argument is not entirely new, but it seems missing in recent posts below concerning the Schiavo statute. It goes like this: I don't care how the Schiavo statute fares under various readings of federal courts jurisprudence; I care about its practical effect and the effect of similar activity.

It seems superficial to make the following analysis: (1) Congress always regulates the jurisdiction of federal courts; (2) the Schiavo statute is such a regulation; (3) it does not overrule any substantive state law; (4) instead, it merely guarantees a forum for the hearing of certain claims; (5) therefore, all is well in Libertopia. I apologize to St. Thomas for the crude summary, but that seems the thrust of the argument.

The problem is not that Congress is attempting a de jure modification of state law. It's that Congress is attempting a de facto modification of state law in this case. Judge Wilson put it well in the Circuit Court dissent. "Congress intended for this case to be reviewed with a fresh set of eyes." What does that mean exactly, that Senator Frist just wanted another hearing? He likes lawyering for its own sake and wanted to watch the argument? Surely not. He, like most people who deal with the law, wanted to win the case when he passed the statute. Unless you believe him to be the real hypocrite (i.e., that he actually cares not at all about Ms. Schiavo and truly used the case only for political theater), he must desire that the federal court reach the opposite result from that reached repeatedly by Florida courts. He doesn't care about the jurisprudence at stake; he wants to know what the power of the state will compel (and in his case, as a legislator, he wants to change what the power of the state will compel here).

That desire is the real problem with the Schiavo statute. Not that it offends hoary precedent taught by Professor Monaghan, but rather than it demonstrates a willingness by Congress to act as a de facto appellate court. If Congress disagrees with a state court decision when sitting as a pseudo-court, it will whip up a quick statute allowing a non-pseudo court (i.e., a federal district court) to rehear the case. If Congress agrees with the decision below, the ruling is final.

Back in the old days, American legislatures often did sit as judicial bodies in their spare time (hence the state legislature of Massachusetts is even today called the "General Court"). That objectionable practice was abolished some time ago, and it's disappointing to see those normally in favor of separation of powers, federal-state comity, and stuff like that support the revival of legislative adjudication.

Continue Reading "The "Bad Man" and Ms. Schiavo" . . .

Medellin's Interpretation of the Supremacy Clause

I was thinking about something in the shower this morning, and I'm sure someone somewhere has already pointed this out. But, since I haven't read it anywhere I thought it might be an original thought.

It's a framing issue. Medellin is often framed in terms of treaty interpretation. We delegated a certain amount of power over interpretation of the treaty in the optional protocol, and are no bound by that treaty delegation. While I have some issues with this, it isn't necessary prohibitive; at least in the domestic context this happens all the time, and it isn't terribly new in the foreign context.

But the ICJ is not really interpreting the treaty, but the Supremacy Clause. There is, as far as I can tell, no issue as to whether Mexico is violating the treaty, and no reason why the Supreme Court wouldn't have agreed in Breard and granted the Mexican nationals relief.

The issue was the adequate and independent state ground. Texas has a procedural rule that is not preempted by the treaty, per Wainwright v. Sykes where the Court held that the procedural default rule is a valid exercise of state procedural power and can bar the litigation of a federal right. Avena is basically trying to overrule Sykes, saying in effect that the Supremacy Clause of the U.S. Constitution should make the treaty overrule the state procedural rule.

The arguments for Medellin always frame this in terms of a treaty interpretation, and that the treaty should be interpreted to preempt the state rule. But that interpretation is not really interpretation of the treaty, but interpretation of what the Supremacy Clause has to say about the treaty.

This, I think, is problematic. Far more important than keeping the definition of the scope of our international obligations under domestic control is keeping the interpretation of our constitution in our courts.

Continue Reading "Medellin's Interpretation of the Supremacy Clause" . . .

Wednesday, March 23, 2005

"Discounting Federalism" in Cutter and Schiavo?

Chris Geidner at Law Dork responds here to my (quick) critique of the federalism arguments of Cutter. I figured this would be an interesting thing to think/post about in light of both my post and T. More's defense of the Schiavo jurisdiction statute.

First, I wonder what Chris means by "discounting federalism." It can't mean that we are somehow judging federalism on its merits to somehow be inadequate in a certain sense. My post was not that federalism fails to inadquately deal with federal imposition of religious norms on state prisons, and T. More was not arguing that the constitutional bars to federal intervention do not adequately protect Terri Schiavo's due process right to life. It also can't be that federalism produces bad results in this case, and should therefore be modified/done away with. Both of our arguments were framed within the court's federalism jurisprudence.

My argument in Cutter is that this statute was carefully and masterfully crafted to avoid every single federalism objection. In order for it to validly apply to a state that has not accepted federal funds, and therefore is not caught under the spending clause hook, the statute requires a "jurisdictional element" that requires proof of effect on interstate commerce. Thus, Congress went beyond something like a severability clause that would sever unconstitutional applications of the statute, and enacted the statute that doesn't even require severance--it doesn't even reach those applications.
One counter-argument here may be a sort of modified-overbreadth argument that the applications of this statute that has an effeect on interstate commerce is virtually a null set, and that this statute may be inappropriately "chilling" conduct. But I didn't see this argument anywhere.

The spending clause argument is closer, I think. And my argument was not normative in the sense that this case would pass under my "ideal" spending clause. My argument was only that I see no basis under the Court's precedent for the argument. You've got to do the Dole analysis, and the only place to get it thrown out is under relatedness. How is spending money on prisons not related to the religious rights of those in the prisons? Unless you're willing to require Congress to enumerate very specifically where every dollar is supposed to go, and then require that those dollars be used for exactly why they were given, this reading of the spending clause doesn't work.
The better spending clause argument is that we shouldn't even get here in the first place. The federal government shouldn't have access to all these funds such that they can "control" states in this way. If Ohio residents just paid the chunk of their federal taxes that gets sent back to their own state prisons directly to the state, then we wouldn't have this problem. States are in the best position to make the vast, vast majority of these decisions, and they shouldn't have to double tax their citizens to be able to run their prisons the way they think they should.

Similary, the argument in Schiavo is that congress always regulates the jurisdiction of federal courts. McCulloch. And that is all that is happening here. There was no guarantee that the federal courts would show any more sympathy, and they so far have not shown any. These federal courts that hear the case are still (I assume) required to apply Younger and Rooker-Feldman, but congress can always give statutory jurisdiction for courts to hear the cases.

Chris' argument has to be that since we are so "committed" to federalism, we should not be engaged in critiquing it. That, to me, is silly. Federalists, like anyone else, make good and bad arguments, and I see no reason why I have to defend the bad ones just because I agree with the general principle.

Continue Reading ""Discounting Federalism" in Cutter and Schiavo?" . . .

Tuesday, March 22, 2005

Schiavo Anyone? Or Another Plea About the Charge of Hypocrisy

I want to weigh in on the biggest legal matter since...Michael Jackson? I basically know as much as the next person on this, but I have read the statute that Congress passed and I have views on the federalism implications that hysterics at the Times and the Post seem to see (I'm always excited when our self-styled progressive friends get their dander up over federalism the rule of law). Thus, I will limit myself to comments on these matters rather than on the merits of the case to this point.

Let's think first about what this bill does. Admitting to some ambiguity in the text, it does not appear to me to mandate a new trial (though it permits one) on the facts of the case, and it certainly does not appear to require a re-evaluation of state law de novo. So all that Congress has done here is to give mandatory appellate review jurisdiction to the district court. By mandatory, I mean that the Schindlers got their day in court which had been denied with the denial of the writ of certiorari by the Supremes. But as Justice Stevens argued today in the Supremes' denial of cert. in the cases challenging the recess appointment of Judge Pryor in the 10th Circuit, denials of cert. do not speak decisively to the merits of a case. So the District (and now, presumably, the 11th Circuit) will take a (slightly) longer look at this case than the federal courts have to date. The almost exclusive reliance on the cert. process by the Supremes is a 20th century phenomenon; it may be a good thing, but it is not mandated by the Constitution. So the Congress runs afoul of no Constitutional principle in passing this law. It is a curious law, to be sure, in being limited to one case, but that also does not run afoul of any constitutional provision or tradition. So, to the extent that Prof. Tribe was making arguments last night on Newshour in claiming that this bill was unconstitutional, he was not making good ones.

Nor are the rule of law arguments very persuasive, particularly when we consider that the sources are people who typically think state courts very unreliable in working with life and death issues (peruse some old death penalty editorials from the Times or Post if you want a flavor of that). All that has been done here is that a federal judge has been given jurisdiction to review what went on. There is nothing in the text of the law telling the judge how to come down, there is no alteration of substantive law, no creation of new rights, etc.. So it is hard to see how this offends against any meaningful conception of the rule of law. It may be improvident as a use of Congressional power, but that would seem to be up to Congress to decide if they want to spend their time, Solomonically, solving family problems. And they will have to face the voters over that. Stephen Bainbridge argues that the rule of law concern is that this amounts to a case of ex post facto lawmaking, which is not allowed under the constitution. But in our system it is well settled that that is only an absolute prohibition with respect to criminal laws. And since there is no change to the substantive law or rights at issue here, the only mucking with the rule of law is a mucking with procedural rules that are basically rules of convenience (particularly the cert. process). To imagine that a minor alteration of cert. review creates a rule of law problem is a stretch to me. The same logic basically applies to his other rule of law arguments: no change in the substance and a minor change in procedure does not alter the separation of powers.

As to Federalism concerns, there is no legitimate worry here either. It is baffling to me why people persist in such simplemindedness in analyzing these issues. Is the Federal Government trying here to upend any state law? No. It is simply granting to a lower court the jurisdiction to hear claims of federal right de novo. That is at best a minor federalism problem, if you think that an important part of federalism is allowing state courts to adjudicate claims of federal right. But allowing this review does not offend against that principle, particularly when one considers that this is limited to a single case. Again, that limitation may be foolish, but it is not an offense against federalism.

So the charges of hypocrisy in this case are truly bizarre, it seems to me. Since the law does not offend against federalism, federalists are not hypocrites for supporting it. (For the record, I think they are wrong for supporting it, but just because I think it's imprudent to get involved in a single family's case in this way, particularly when the odds of success appear remote.) Since the law does not offend against the rule of law, there is no reason "law and order conservatives" violate their principles for supporting it. On the other hand, and herein lies the oddity, for people who are typically suspicious of the states and in favor of federal correction of state policies (and state courts) to try to make this an issue of federalism is really rich. It shows that they are essentially hypocritcal, or ignorant of the meaning of federalism, or both. (My arguments here imply that it is both).

Finally, another plea, perhaps even against myself, against the charge of hypocrisy anyway. If I call my opponent in an argument a hypocrite, I have made an ad hominem attack with respect to the issue at hand. That is, I have not shown him wrong, I have shown him inconsistent, at best. Further, when I argue that he is being inconsistent with principles that I myself reject, why am I "charging" him with something, rather than celebrating his conversion to my point of view?

Let us bury charges of hypocrisy in such arguments.

T. More

Continue Reading "Schiavo Anyone? Or Another Plea About the Charge of Hypocrisy" . . .

Monday, March 21, 2005

Cutter and Federalism

I was very pleased to see at the arguments today that the federalism/enumerated powers issues received such short schrift. I am, obviously, a fan of federalism, agree with Boerne, but I think the allusions to RFRA and federalsim are just smokescreens.

Section 5, the problem with RFRA, has nothing to do with this case. And the commerce clause only matters if they don't like the exercise of the spending clause. Doug Cole made a point during arguments that RLUIPA is problematic because the alternative commerce clause ground for the statute binds even states that haven't accepted the funding. But what does that have to do with anything? I don't see how Ohio can be allowed to raise claims of hypothetical states (if there are any such states) that haven't accepted funding, but must still adhere to the statute because of the commerce clause hook. I'm pretty sure that if the Court doesn't buy the spending clause arguments, then the commerce clause arguments are a complete wash.

Even Justice Scalia said during arguments "if you don't want to be bound, don't take the money!" Unless Justice Thomas, who was rocking back and forth in his chair staring at the ceiling, is ready to seriously curtail the spending power, then I think the federalism issue is going to get exactly zero votes. And I think this would require a serious curtailing. Here the federal government is saying "we'll give you money to run your prisons as long as you follow these rules with the money." How would we cut it back? It seems we'd have to say "we'll give you this money as long as you accomodate religion with the money." Now that may or may not be a good idea . . . but there's no way he's getting the Justices to go along with it.

Continue Reading "Cutter and Federalism" . . .

Cutter v. Wilkinson Arguments

So, I went to the Cutter arguments today. Very fun. And, thanks to my professor who took us, we hung out with Justice Breyer, acting Solicitor General Paul Clement, and Ohio Solicitor General Doug Cole after the arguments.

For background on Cutter, see The Becket Fund's summary. The issue is whether the Religious Land Use and Institutionalized Persons Act impermissibly establishes religion by giving prisoners a preferred status in the prison community in that it requires that prisoners receive literature and are allowed to conduct religious services. There are also spending clause and commerce clause challenges, but they seemed very secondary to the establishment clause issue.

The Chief was there, as I'm sure everyone has heard. He seemed very lively, asked (by my count) 5 questions, even made a crack about mormons. :) Here is a very rough sketch of the questions and answers, I'll post later on some of my thoughts.

Justice O'Connor was first concerned with the ever-present slippery slope argument regarding the establishment clause. If we let these prisoners have preferences, what happens when prisoners come with all sorts of desires saying they are based on religion. Must we grant their wishes?

The answer from Clement was that the compelling state interest analysis built into RLUIPA involves a balancing test where those requests that would involve something that the state had a compelling interest in preventing, RLUIPA would not mandate the allowance.

The next (interesting) question was from Justice Ginsburg, asking what if the religious symbol was also a sign for a gang.

The answer was that there would be deference to the prison wardens in these situations. Doug Cole (SG from Ohio) noted later that this deference is nowhere found in the statute. An interesting point, compelling state interest and narrowly tailored means sounds like these situations are going to undergo very searching review.

This was a common concern, raised in a number of different contexts. The answer was always deference and compelling state interest analysis.

Justice Ginsburg raised the issue with regard to racism: what if a certain religion required separation from another race? The answer was made particularly easy because of the recent ruling in Johnson v. California, which I blogged on here. I thought this case was particularly important to todays arguments. I'll post on this later.

Judge Souter's questions were absolutely great. They took issue with the idea that there must be some space in between free exercise protection and what is barred by the establishment clause. He accused Ohio of cutting back on this room, and making any "accomodation" of religion automatically barred, or at least serverely scrutinized, by the establishment clause. Ohio did not have a very good answer for this, and Souter pushed and pushed on it.

The only answer from Ohio was that some accomodations would be permissible, while others would not. Making Kosher meals available is not as radical or burdensome as some of the accomodations provided to the prisoners in this case. I think there is an interesting substantiality issue with the overbreadth challenge. I'll post on this later as well.

There was some discussion of congress forcing a return to pre-Smith jurisprudence, but this didn't really go anywhere because since Congress did not enact the statute under Section 5 of the Fourteenth Amendment, a City of Boerne-type challenge wouldn't make any sense. Congress can ratchet up rights all it wants if it doesn't need Section 5.

The Spending Clause and Commerce Clause was given almost ZERO attention. This was, according to Doug Cole, (who we also got to hang out with afterward) too bad, because he was hoping to get to discuss the federalism issues. These issues were discussed very heavily in the briefs, but the Justices didn't seem to care.

That's all for now. Very interesting case. More to come.

Continue Reading "Cutter v. Wilkinson Arguments" . . .

Friday, March 18, 2005

The Necessarily(?) Moral Argument for/against the Death Penalty

Eugene Volokh posts on arguments against the death penalty. His argument seems to be that there are strong practical libertarian arguments against the death penalty, in spite of the more widely held moral reason against it. I certainly agree that the decision is a moral choice, and even think that the perhaps the only plausible argument against the death penalty is a moral one.

This, I think, is because sufficient constitutional process remedies most, if not all, of the practical issues of the death penalty. To the extent that these practical concerns are with, not the death penalty in an absolute sense, but the risks of inappropriate execution, constitutional process provides a sufficient remedy.

Volokh's argument that the death penalty is a means of silencing dissenters may apply to governments generally, but our system of appeals and habeas review remedies this problem by giving multiple chances to be heard in court, and years before one sentenced to death actually dies. I think constitutional due process, and habeas review that can't be suspended in a single case, may fix this problem.

Volokh notes that even if we think the death penalty is okay in the U.S., "we may want to discourage the death penalty in other countries, such as emerging but fragile democracies or mildly oppressive autocracies."
This assumes that we would somehow fail in our ability to export constitutional process, but succeed in our ability to export banning the death penalty. I don't know whether that's a fair assumption, it seems that the two should be equally accomplishable.
Perhaps the concern should be that discouraging the death penalty internationally is important because most other countries can't afford the amount of process that we can. The issue is, therefore, not that other countries wouldn't adopt constitutional process, but that they can't for financial reasons. Maybe this isn't true either; I know nothing about the amount of process afforded in European countries. In fact, it seems that the EU is set up in a way that may allow more process in that defendants can appeal claims to an extra-national human rights court. If constitutional process is being violated, I'm sure such appeals could smoke out the bad trials.

Volokh's other arguments are largely against the risk of government error. This, I think, is the best "practical" argument against the death penalty. Even one who has no moral problem with executing guilty people has to take issue with executing innocent defendants.
But this too can be remedied with some combination of science and process. Ever seen CSI? This may prove too much; there may be no way to completely abrogate error. It may require a moral tolerance for both the death penalty and a very small risk of unjust punishment.
But what about a system where only those who admitted to murder, after sufficient process, were candidates for execution?

I guess my argument is that at the end of every one of these arguments is a moral choice. I see no way around it. Those who have no moral problem with the death penalty in the abstract may nonetheless take issue with unjust execution, but isn't that also a moral argument?
And in any event, I think that constitutional process can sufficiently contain "just" execution to "appropriate" situations. This requires a trade-off: more process means less people being executed. But all that means is that one has no moral objection with killing guilty murderers, and has to let some people go who were actually guilty because one has a moral objection to killing innocent murderers. But these are moral arguments.

Continue Reading "The Necessarily(?) Moral Argument for/against the Death Penalty" . . .

Medellin Update

SCOTUSblog reports that the Court deferred on a motion to stay further action (background: see here, here, here, and here) in Medellin. It seems we will be hearing the merits of the case after all. :)

Continue Reading "Medellin Update" . . .

The Schiavo Subpoena: More Silly McCulloch

Earlier today the House issued a congressional subpoena in the Schiavo right-to-tie case. Orin Kerr discusses it here, CNN reports on it here, the NYT here. House Republican leadership issued a statement, and Kerr notes, that the subpoena is to "require hospice administrators and attending physicians to preserve nutrition and hydration for Terri Schiavo to allow Congress to fully understand the procedures and practices that are currently keeping her alive."

The explanation, it seems, is McCulloch--that the subpoena is "necessary and proper" to some constitutional congressional power. I discussed McCulloch below in the context of Ashcroft v. Raich. There, the argument was that, per Wickard, Congress should be able to regulate non-economic, entirely intrastate activity because it was necessary and proper to the regulation of the interstate activity. While I think that is a ridiculous use of McCulloch, I think this Schiavo subpoena is plain silliness.

To what, one might ask, is this subpoena necessary and proper? I can't think of how under Article I, section 8 Congress could pass a statute regulating this activity, and there's serious question whether such a statute would be constitutional, as the Florida Supreme Court held. If Congress couldn't even legislate if it wanted to, how is a subpoena halting a state court order necessary and proper to a valid power?

Moreover, it seems that McCulloch can't ignore structure and relationships, particularly separation of powers. If Congress can convene what are basically courts with the power of contempt for those who refuse to cooperate, then the legislature is making the law, executing the law, and interpreting the law. This, I think, is problematic.

Now, I recognize that McCulloch is necessary, and had it repeatedly beat into me by my Federal Courts Professor. But it, like the commerce power, must have some semblance of a limit. Surely Mr. Frist can't say with a straight face that this subpoena is to gather information for future legislation.

UPDATE: Jack Balkin posts on the controversy, calling Congressional Republicans "fair weather federalists":
Few national politicians are seriously interested in federalism or judicial restraint when this would interfere with something they really care about. The Schiavo controversy demonstrates, I think, that pro-life values are likely to trump federalism values and concerns about an activist judiciary when the chips are down; they will even trump them when politicians think they can gain something from grandstanding, which appears to be what is going on here.
I do agree to some extent, wish my party were more true to federalism. But I wonder how important it is for the legislature, compared to the judiciary, to be true to federalism. Everyone knows where they stand on how true the judiciary should be to the text and intent of the Constitution, but I think the legislature's duty is an important discussion.

Continue Reading "The Schiavo Subpoena: More Silly McCulloch" . . .

Thursday, March 17, 2005

Another Great Webcast

Justice Scalia on Constitutional Interpretation here. I haven't watched it yet, but will hopefully get to it this weekend. We should have some great discussion on the talk.

Continue Reading "Another Great Webcast" . . .

Wednesday, March 16, 2005

Eminent Domain and Public~Private

A non-law friend is surprised to find Texas planning to exercise eminent domain:
Not only would the state be carving through hundreds of ranches and privately owned property with the highway, it would be doing so to reassign the property to a private company [this statement appears to be incorrect; TX-DOT will hold title to all project right-of-way property]. And not to just any company -- to be uncharacteristically protectionist about it -- but a foreign company, Spain's Cintra. Are we really watching leadership in the seat of the contemporary conservative movement seize property from private individuals and grant it to private, foreign corporations? As a bellwether, is this a bell tolling the passing of traditional conservative values?
In comments, a lawyer points out that such a taking has a long legal precedent behind it, and in situations where the public is much less obviously benefited than we would be by a new highway.

Even Missouri Pac. Ry. Co. v. State of Nebraska, linked by Publius in a post about Kelo as the one case invalidated by the Supreme Court on public use grounds, isn't actually saying that the use in question would be public. Justice Gray's opinion states, "The order in question was not, and was not claimed to be, either in the opinion of the court below, or in the argument for the defendant in error in this court, a taking of private property for a public use under the right of eminent domain." Instead, the State of Nebraska sought
to transfer an estate in part of the land which [the railroad] owns and holds, under its charter, as its private property and for a public use, to an association of private individuals, for the purpose of erecting and maintaining a building thereon for storing grain for their own benefit, without reserving any control of the use of such land, or of the building to be erected thereon, to the railroad company, for the accommodation of its own business, or for the convenience of the public.
The Court framed the case as being, if anything, a contradiction of the proper use of eminent domain, with the property held by the railroad "for a public use" being forcibly converted by the state to a private one. There's a tinge of "public accomodation" about this distinction; a use that is open to the public, even if for private profit (as with a highway, railroad or even sports arena) seems to fit much more easily within "public use" than one that has a more limited set of users.

Continue Reading "Eminent Domain and Public~Private" . . .

Tuesday, March 15, 2005

Webcast of Medellin Debate

Saturday, March 12, 2005

Spring Break This Week

. . . so check back next week. :)

Continue Reading "Spring Break This Week" . . .

Thursday, March 10, 2005

Well, We Won't be Letting THAT Happen Again...

So today, in a further fascinating development, the U.S. announces it is withdrawing from the Optional Protocol of the Vienna Convention...
"The International Court of Justice has interpreted the Vienna Consular Convention in ways that we had not anticipated that involved state criminal prosecutions and the death penalty, effectively asking the court to supervise our domestic criminal system," State Department spokeswoman Darla Jordan said yesterday.

Withdrawal from the protocol is a way of "protecting against future International Court of Justice judgments that might similarly interpret the consular convention or disrupt our domestic criminal system in ways we did not anticipate when we joined the convention," Jordan added.
The article also notes that Texas shares Publius's bafflement about the nature and authority of the President's order here...


Continue Reading "Well, We Won't be Letting THAT Happen Again..." . . .

Wednesday, March 09, 2005

What's the Nature of the Presidential Order?

JMoore asks a good question:
It is obvious that the president can pre-empt the TX state law that says cases cannot be reopened. However once the law is pre-empted, can he then ORDER the court to rehear?
I guess it depends on what the "order" really is. I don't think he could order the Texas Attorney General to do anything. That, to me, is commandeering--barred by the 10th amendment. But his order can just be the equivalent to federal legislation or a treaty that preempts the state procedural rules. So the inmates can bring a habeas petition or a 1983 action or something challenging the state actor's violation of federal law, and the presidential order preempts the state procedure. If Texas actually refuses, and it gets up to the Supremes, then they reverse, not on any ICJ deference grounds, but on the presidential preemption.

That's my guess . . . I welcome my much-smarter co-contributors to weigh in.

UPDATE: Lyle Denniston has a post on SCOTUSBlog: Are the states "puppets of a ventriloquist President"? He takes issue with the consideration of the Bush memo as an executive order:
[T]here is no executive agreement; the President is moving on his own claimed authority in foreign policy matters to direct the states to follow the World Court ruling.
Lyle, therefore, seems to think this is solely a Printz commandeering issue.

But all this means is that the President needed to be more clear that this was an executive order declaring the state of the law and not an order commandeering the state actors. The mandate that state courts uphold federal law (Testa v. Katt) does not offend Printz. Otherwise this analysis makes every piece of federal legislation a commandeering action. Had he been more explicit, Garamendi would make the order preempt the state procedure.

I think, therefore, that the issue is the President's uncabined legislative power. I would prefer a limit to the President's effective ability to legislate domestically under the auspices of his/her foreign affairs power, see Youngstown; Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1 (1993), rather than an anti-commandeering band-aid.

Continue Reading "What's the Nature of the Presidential Order?" . . .

More on the Medellin AntiClimax

Marty Lederman at SCOTUSBlog reports on Texas' response to the President's order.

Julian Ku at Opinio Juris predicts that the Bush Administration's actions will cause the court to dismiss Medellin's appeal. This, however, he questions due to the Texas response.

The question seems to be what the Bush memo should be considered for purposes of preempting the state procedural statute. In Garamendi, the Supreme Court held 5-4 that an executive agreement preempted a California state insurance statute, and I can't see how the Court could distinguish the current case from Garamendi, unless, as Professor Ku notes, this is not an executive order.

So, it seems, the decision we were all so excited for will have to wait. Probably a good move for the White House, however, as Justice Kennedy, as Phocion notes, cannot be trusted. :)

UPDATE: Julian Ku has information, on good authority, that the U.S. may withdraw from the optional protocol of the Vienna Convention.

UPDATE: It's true, the U.S. has officially withdrawn. But, as Marty Lederman notes, "There is some question whether today's treaty "withdrawal" was effective because the President acted alone, without the assent of the Senate and/or the Congress." See the post for his whole take.

Continue Reading "More on the Medellin AntiClimax" . . .

Tuesday, March 08, 2005

Medellin update

Looks like the Supremes might not hear Medellin after all. Perhaps the Bush administration has seen the writing on the wall after Kennedy's Roper opinion and doesn't want this issue to come before the court at this time.

Continue Reading "Medellin update" . . .

Friday, March 04, 2005

The Problem of Severability in Raich

Although I agree that Congress should not be able to reach intrastate, noneconomic activity, my issue with Aschroft v. Raich is the way it seems the Court is going to have to sever the statute to get where we want them to.

Randy Barnett was here last night talking about the case, and discussed what he says he was forced to concede in order to survive oral arguments. He expected to be questioned by the justices on the slippery slope argument that if the government can't regulate the medical marijuana use, the Court will have to allow many other uses--"the parade of horribles"--that would be similarly unconstitutional exercises of power. This, he assumed, would be fatal to his case.

What he conceded was a sort of exception from dicta in Morrison that if the suspect application of a statute were "necessary" to the greater regulatory scheme, it could be upheld even if it, by itself, was an unconstitutional enactment under the commerce clause. Thus, since Congress could pass an "interstate controlled substances act" and the regulation of at least some intrastate drugs is necessary to achieve the broader purposes of the interstate drug regulation, the necessary intrastate applications are valid. This would allow the justices to sever off the medical marijuana application but still validate regulating other applications.

It seems there are two ways of thinking about this: first, in terms of severability, and second in terms of McCulloch.

The presumption in severability analysis is Yazoo. There, a statute was passed that lead to some constitutional and some unconstitutional applications. A facial attack, which would require that the statute be capable of no constitutional application at all (see Sabri; Scalia in Morales), didn't work, and overbreadth is only allowed in the first amendment (but see Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235). Yazoo stands for the proposition that when a statute violates the "valid rule requirement," it is severed off from the otherwise-valid statute, and the statute remains in tact on the books.

I don't understand, then, why all intrastate, non-economic drug use shouldn't just be severed from the statute, leaving the interstate uses on the books. Interstate use would be the federal government's business to regulate, and intrastate use would be up to the states.

I guess my concern is that although Professor Barnett is right that the activity at issue shouldn't be reachable under the commerce clause, why does he need to excuse other intrastate, noneconomic activity?

The answer, it seems, is McCulloch--that somehow the regulation of intrastate, noneconomic activity is "necessary and proper" to the regulation of interstate commerce.

This, to me, proves too much in a context where Congress is not really regulating commerce, but is using the police power, justified by the commercial nature of what it is policing. It seems that this would give Congress power to regulate virtually all crime, since intrastate crime is always going to have an effect on interstate crime such that the regulation of the intrastate crime is necessary to effective interstate regulation.

T. More suggested the other night what he calls the "straight face" test--that Congress must be able to tell you with a straight face that it is really regulating commerce. While I think this is a lost cause for the commerce power generally, I think it should at least govern what Congress is able to reach with McCulloch.

Continue Reading "The Problem of Severability in Raich" . . .

Thursday, March 03, 2005

A brief response...

I assume that what Publius is getting at is the question that has, and probably always will, dog the originalist movement: how does one defend Brown v. Board of Education through an originalist lens. It is indeed a difficult question. There is evidence that many of the drafters of the 14th Amendment did believe that the amendment prohibited segregation: in fact, if I remember correctly, in 1871 (sometime around then) there was a long and contentious debate over a bill which would have integrated DC schools. Now the fact that DC schools remained integrated after the passage of the 14th Amendment is probably evidence that at least a majority of Congress at that time did not believe the passage of the amendment compelled desegregation. In short, there is some evidence that a few viewed the EP clause as compelling desegregation, but one could hardly call that definitive original intent or original meaning. For more on this, one should read Michael McConnell's article defending Brown on originalist grounds. 81 Va. L. Rev. 947 (1995))
Thomas and Scalia do not leave behind their originalist/textualist jurisprudence completely when they deal with EP cases. A simple review of their opinions would make this clear. See, e.g. United States v. Virginia (Scalia, dissenting).

Instead of a pure originalist bent, Scalia and Thomas have in many of the race cases adopted a sort of "principled originalism." The main principle embodied in the EP Clause is that we are to be treated as individuals, and that "we are just one race here. It is American." This was the view taken by John Marshall Harlan in Plessy v. Ferguson, and it is the notion of the color-blind constitution, which arguably can be defended upon originalist grounds, which infuses the jurisprudence of Scalia and Thomas on cases involving race.

Furthermore, the race cases provide a little insight into the subtle, yet distinct, difference between Scalia, always a positivist, and Thomas, who certainly believes in some type of natural law. Thomas consistently writes about the Declaration of Independence in his opinions on race, and seems to think that it was the principle of "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness" which was lifeblood of the 14th Amendment. Take for instance his opinion in Grutter v. Bollinger:
For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to "[d]o nothing with us!" and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court's opinion and the judgment.
In the end, Scalia and Thomas cling to their originalist philosophies in the realm of the EP clause. While they do not always inquire into what was meant by those who drafted the amendment, and how was it received at that time, they very often do attempt these inquiries. Furthermore, even when they stray from a strict originalist view, they do so with a guidepost, with a shining principle infused by the original meaning which will aid them in attempting to do the best for the Constitution, for its original meaning, and for democracy. With at least a principle, they attempt to restrain the range of arbitrary judging; sometimes, pragmatic results may follow, often they will not, and that is because their principle taken from the Constitution precludes such a pragmatic result. Indeed Publius, the Brown question is the most difficult one for an originalist, and we will likely never find an adequate answer. That there is no answer does not mean we have descended into a nihilistic, pragmatic sort of judging; originalists must hold true to a principle which we see emanating from the text and meaning, and it is that principle which will guide us through.

Continue Reading "A brief response..." . . .

But What of the Equal Protection Clause?

I very much enjoy T. More's post below on originalism, but have one point that I want to address and hope that he will respond to. Professor Primus pointed out, and I have elsewhere indirectly addressed an area where Thomas and Scalia are peculiarly and obviously not originalists--namely the equal protection clause. Here they fall into the same trap that the other justices live in where they depart from the text and original intent in an attempt to craft a workable solution given competing concerns and values.

What accounts for this inconsistency? I can't believe that this is merely Justices Scalia and Thomas being fallible the way T. More describes below. Such an explanation seems to work well for individual cases, but not for whole areas of constitutional jurisprudence. Or, maybe they both initially ruled this way, and now feel bound by their earlier reasoning to keep upholding a rigid and nonsensical view. I don't know.

If I were a Scalia/Thomas-hater, I would argue that this is proof that these two are pragmatists just like the rest of the court. They have the unique benefit of agreeing with the racist, chauvenist, states-loving founders on almost every issue, and adopt originalism to effectuate those results. On the issue of equal protection, they do not agree as strongly with the crafters of the amendment, and so they depart from the original purpose--eradicating discrimination, not barring affirmative action.

Maybe the explanation is just what T. More suggests, that this is an area, perhaps the biggest area, where the two superstars are just plain pragmatists. And I guess that's fine; nobody's perfect.

The problem I see is that we're now engaging in line-drawing--there are areas where the original intent is important and areas where we need to adopt a more dynamic interpretation. We can no longer claim that we follow Wechsler's neutral principles, since we are departing in an area where the originalist interpretation gives us an unfavorable outcome.

You may agree that the line is drawn with everything being originalist except the EPC, but that's a different justification than the one Scalia offers. There has to be an argument why the EPC, and nothing else, deserves the dynamic interpretation. Such an argument I have not heard.

Continue Reading "But What of the Equal Protection Clause?" . . .

Wednesday, March 02, 2005

Scalia's Inconsistency: Who Cares? OR, How I Learned to Stop Worrying and Love Originalism

Orin Kerr, a model of cool-headed legal blogging, to my mind, has a post up over at Volokh Conspiracy that touches upon a phenomenon well familiar to law students: the fascination, bordering occasionally on obsession, with finding inconsistencies in the jurisprudence of the conservative members of the court.

The theory seems to be that originalism in general, or some opinion in particular, can be undermined by the charge that Scalia is not following his own principles. As the instant case, Roper, discussed by Kerr's post demonstrates, this charge can be too simple-minded. But let's assume that there are instances (as Kerr implies) wherein Scalia fails to follow his own principles: what of it?

Let us begin with a reason why the charge should be difficult to lodge, in general: justices hold many principles, and some of them naturally come into tension with each other. Any judge who invokes stare decisis, after all, will at one level be contradicting her principles, since the very doctrine is basically an acknowledgement that sometimes old law that was bad law should stand in interests of stability, the rule of law, or the like. As Scalia has said of why he is content to let some crazy old doctrines stand, "I may be a textualist and an originalist, but I am not a nut." Judging is hard work even for one who yearns as Scalia does to announce rules rather than standards, bright lines rather than balancing tests, precisely because hard cases often pit competing principles against one another.

But let us go further still: assume the worst case, that Scalia just fumbles on occasion--out of a too strong desire to get the right result, out of fatigue, out of confusion, out of a desire to placate the rest of the Court (OK, perhaps that's not so likely)--what does that show? It shows that--get this--Scalia is fallible! But Scalia has never made any claim that one entailment of his originalism is that he possesses even wider infallibility than the Bishop of Rome. I know of no defender of originalism or textualism who defends it on the basis of the personal virtues evinced by Scalia, Thomas, Luttig, or any other of the most reviled practitioners of these doctrines.

I take it, rather, that one of the points of Justice Scalia's preference for these modes of analysis is that he and all judges (being human) are fallible, and are prone to substitute their own judgment for the law--the judicial sin. It is precisely because he knows himself to be a sinner in this regard that he wants all judges to adhere to that jurisprudence which poses the fewest near occasions of sin: textualism and originalism. Recall his recent debate with Justice Breyer wherein he worried about the use of international sources (as he does in Roper) for Constitutional adjudication precisely because it opens the judge to temptation:

I mean, it lends itself to manipulation. It lends itself. It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. What reason -- you know, I want to come out this way. Now, I have to write something that -- you know, that sounds like a lawyer, okay?

I have to cite something. (Laughter.) I can't -- I can't cite a prior American opinion because I'm overruling two centuries of practice, okay? (Laughter.) I can't -- I can't cite the laws of the American people because, in fact, only 18 of the 38 states that have capital punishment say that you cannot leave it to the jury whether the person is mentally deficient and whether that should count. So my goodness, what am I going to use?...

I have a decision by an intelligent man in Zimbabwe -- (laughter) -- or -- (laughs) -- or anywhere else and you put it in there and you give the citation. By God, it looks lawyerly! (Laughter.) And it lends itself to manipulation. It just does.

Hence, one adopts originalism and textualism because one does not believe even in oneself as an infallible source of truth (moral, legal or otherwise). For a different model of the role of a judge, see here.

The foregoing considerations lead me to worry little about the charge of any given judge's (including my judicial hero Antonin Scalia's) inconsistency, real or imagined. If Scalia fails to follow originalism in a given case, for reasons not having to do with stare decisis but just because he messed up, why should this shake my faith in originalism? The charge of inconsistency is about a man (in this case) not a doctrine.

Indeed, one often hears two charges leveled against originalism by the same people: first, that it is useless because, after [Wittgentstein, Derrida, Foucault, insert hero of post-modern skepticism about language here] we know language can't be as useful as textualists/originalists require; and second, look how often textualists/originalists can be shown to violate text and original meaning. Note that the second charge could not be proven true if the first were true! Since I concede the second, I am happy to denounce the post-modern attack on textualism/originalism as nonsense, and then hew to originalism as the worst doctrine of jurisprudenc--except all the rest! If I am correct, then evidence that even a committed and smart originalist like Scalia occasionally fails to follow his own principles makes me want to follow those very principles even more: since if it is possible to make mistakes using an approach that more sophisticated thinkers find simple-minded, overly mechanical, or the like, then how much more likely that I will find occasion to sin when sitting, all Kennedy-like, as a moral guardian of the Republic, freed from much attachment to legal materials at all?

Continue Reading "Scalia's Inconsistency: Who Cares? OR, How I Learned to Stop Worrying and Love Originalism" . . .

The Ten Commandments Argument

It sounds as if oral arguments today in the Ten Commandments case were quite interesting, with Justice Scalia leading the way in deriding Erwin Chemerinsky's arguments against display of the Commandments. Interestingly, Justice Kennedy also appeared unsatisfied with the arguments against the Commandments, and mentioned that the States should retain an interest in promoting religion (he didn't seem so concerned with democracy and states' rights yesterday though). Both Scalia and Kennedy appeared unwilling to decide the case on the more narrow "Ten Commandments have secular, museum-like value" as well, though it seems as if Justice O'Connor might head that way. In the end, it appears that this case will produce a win for Texas, probably with at least 6 Justices on their side(maybe 5 if Rehnquist does not need to participate). But there is also the very real possibility that the lead opinion, perhaps by Scalia (with Thomas and Kennedy, perhaps Rehnquist too), will not garner more than a plurality, with Justices Breyer and O'Connor writing separately on more narrow grounds. In addition, look for a possible concurring opinion by Justice Thomas which is pretty extreme, arguing against the incorporation of the establishment clause as against the states. More to come...

Continue Reading "The Ten Commandments Argument" . . .

Tuesday, March 01, 2005


I'm opposed to the death penalty under any and all circumstances (it was not a kind policy to my namesake!). Nevertheless, today's opinion by Kennedy is simply indefensible as a matter of the rule of law. I can do no better to show this than Scalia's typically clear and careful dissent, but I did wish to respond to Phocion's post below.

While I am opposed to the death penalty for all, from which it follows that I oppose the death penalty for juvenile offenders, your post points out just how unclear the morality of that particular question is for those who do not rule out the death penalty entirely (as today's court declined to do, though it's not clear why, since it is not the Constitution that was guiding them). Thus, one is left with the "consensus" that even Kennedy is not too confident in claiming, bolstered (by his own admission) by Kennedy's morally superior reasoning. So that's your answer, Phocion--you have your view and you are wrong and in our Constitutional system Kennedy and the other four in the majority simply get to dictate that "consensus" for all of us.

As Scalia also notes, the very notion that juvenile murderers are always and everywhere incapable of the kind of moral reasoning requisite to make them liable for the death penalty is rebuked by the same justices in their abortion jurisprudence. So pregnant teenage girls can think through the difficult choice of abortion but the murderer in today's case was just an innocent babe. Perhaps they should send along their moral psychology to Larry Summers for analysis--at least it comes out better for the fairer sex. Sadly, it is equally ill-conceived.

So while I can be happy that this event might advance the society's moral reasoning with respect to the death penalty, I lament that it has to come at the price of more judicial usurpation and mangling of history, precedent, and the rule of law.

Finally, the title of my post is not entirely without purpose: the Rope-a-dope strategy employed by Ali against Foreman in 1974's "Rumble in the Jungle" is what the anti-death penalty majority is up to, I think. They will be content to write opinions that take the body blows of Scalia's best stuff in piecemeal decisions like this one and Atkins assuming that the gradual approach will eventually exhaust any political opposition. I can't wait until the Sages tell us which moral consensus we've arrived at next!


Continue Reading "Rope-a-Dope?" . . .

Roper, continued

I have many thoughts on this case, and have yet to completely finish all of the opinions, so I will probably divide up my thoughts into several posts. First of all, I hope in reading the opinion, people don't simply glaze over the facts of this case. Simmons' murder was a particularly heinous crime: he bound up a woman after he had broke into her hose, and threw her off a bridge, all because he felt like killing someone. He was 17 at the time of this crime. Publius begins his post by noting that he really has no trouble with the ultimate outcome of the case. I must say that I do. Admittedly, there are juveniles out there that are not fully matured, but I'm not so sure that that really means they don't understand the nature and implications of their actions. And what we really are taking about is 17 year olds being executed, not 12, 13, etc. The death penalty should be used in such cases of juvenile murderers sparingly, I agree, but isn't that exactly what happens now. As Justice O'Connor writes,
Granting the premise "that adolescents are generally less blameworthy than adults who commit similar crimes," I wrote, it does not necessarily follow that all [juveniles]...are incapable of the moral culpability that would justify the imposition of capital punishment.
That only three states have executed a juvenile in the past decade shows this, but the majority twists this to show an "emerging national consensus" (isn't it interesting that the twelve jurors in this case who recommended the death penalty were part of the apparent "anti-consensus?"). Isn't the facts that it is used so sparingly just as much evidence that establishes the reasoned judgment of prosecutors: only when faced with heinous, unspeakable crimes and a mature offender, will the prosecutors move for the death penalty. Admittedly, I am far away from this crime and know only the facts from the opinion, but Simmons himself might not have been the best vehicle for deciding that states and prosecutors can no longer use their reasoned judgment, but instead that minors are categorically excluded from the possibility of the death penalty (Should I also mention that in preparing his "plan", Simmons convinced an accomplice they could get away with it "because they were minors"). This decision maybe should not, then, present a lot of comfort to the Shirley Crook's of the country.

I realize this has been a somewhat normative analysis, and in my later points, I hope to take up more specific legal arguments about the manipulation of precedent, the overruling of himself by Justice Kennedy, the use of secondary materials and studies to lead to the conclusion that a national consensus exists, the apparent criteria for national consensus', why the Eighth Amendment is apparently "different" from other constitutional protections, and the use of subjective moralism in judging. Like I said, I have a lot to say about this opinion.

Continue Reading "Roper, continued" . . .

Roper v. Simmons--Juvenile Death Penalty Unconstitutional

The Court held today in Roper v. Simmons that the death penalty for juveniles violates the Eighth Amendment. I actually don't mind the outcome, agree that minors should not get the death penalty. But the way Justice Kennedy's opinion gets there is, I think, ridiculous. In the end, all Justice Kennedy is relying on is the actions of 5 states of invalidating the juvenile death penalty to justify this shift in U.S. values.

Kennedy begins:
The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design.
To justify the overturning of Stanford v. Kentucky, Kennedy notes that "Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years-four through legislative enactments and one through judicial decision." So, four statues and a judicial decision. Scalia notes in dissent that the Court "claims halfheartedly that a national consensus has emerged since our decision in Stanford, because 18 States-or 47% of States that permit capital punishment-now have legislation prohibiting the execution of offenders under 18, and because all of four States have adopted such legislation since Stanford. . . . Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus."

Kennedy concludes:
[T]he objective indicia of consensus in this case-the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice-provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal."
I wonder how he gets from "categorically less culpable" to "cruel and unusual" . . . or have we thrown out the text altogether? Justice Stevens wrote a concurrence to note only that if we were to use the original meaning of the constitution in this case, that it would permit the execution of children under 7. I wonder what Stevens means here. Is he saying that if we were all originalists, that we would have some 6 year olds being executed? Is he saying that it is too hard to get a statute or even a constitutional amendment passed that would bar capital punishment for 6 year olds, such that the court needs to step in and ratchet up the protection? Obviously executing a 6 year old would be cruel and unusual, but I think an amendment to bar capital punishment, ratchet up the constitutional protection for such a situation would take all of 5 minutes. To say that since the constitutional theoretically would not bar it is very different from saying that there is any real risk of such a thing happening.

But all of this is not new. Obviously we don't have a court full of originalists.

What is fairly new is the section on international sources. Justice Scalia agrees: "Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage." Justice Kennedy writes:
Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."
I agree with Justice Scalia that "the basic premise of the Court's argument-that American law should conform to the laws of the rest of the world-ought to be rejected out of hand." Remember his debate with Breyer (RealPlayer)? Scalia notes that the use of foreign sources pops up only when the Court wants extra support for its idea. Such discussion is completely absent in the discussion of the Miranda exclusionary rule, the establishment clause, and abortion.

Julian Ku notes that a number of the treaties that Kennedy cites were not even signed by the U.S. Whether the U.S. has signed those treaties has no bearing on Scalia's categorical objection to use of foreign sources, but it highlights the danger that Kennedy enters here. He is using foreign sources, presumably to interpret the constitutional provision in light of U.S. values, which are enough afield of U.S. values that we were unwilling to sign the treaty.

Continue Reading "Roper v. Simmons--Juvenile Death Penalty Unconstitutional" . . .