NINOMANIA

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:: Monday, December 31, 2012 ::

Seidman

Prof. Bainbridge takes care of the matter here. I could say more - perhaps I will later, esp. about how choosing one at-the-time viable reading of the Constitution over a later, victorious one, as John Adams did re the Sedition Act, does not amount to "ignoring" the Constitution - but, spurred by a tweet from @walterolson, I realized that I have somewhat aggressively not cared what Prof. Seidman thinks about the Constitution for a long time, and New Year's Eve (also, still, the thick of the grading season) is hardly the time to change ways.

I have not yet eulogized Judge Bork, other than on Facebook, for (perceived) lack of time to do justice to the subject, so to speak. After grades are in, I hope.

:: David M. Wagner 8:51 PM [+] ::
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:: Friday, December 07, 2012 ::

The Supreme Court has granted cert in the two closely-watch "gay rights" cases: the Prop. 8 same-sex marriage case, now called Hollingsworth v. Perry, and the only DOMA case to have yielded Court of Appeals decision thus far, U.S. v. Windsor. Note that in both cases, the Court directed the parties to brief the issue of standing. That's a different issue in the two cases:

In Hollingsworth, the standing question is: do activists who have all along promoted and defended Prop. 8 (a much more specific and narrowly-injured set of parties than simply "backers" or "supporters") have standing to defend a state constitutional amendment when the state refuses to? If not, then any state could nullify the outcome of a referendum through simple non-enforcement.

In Windsor, the standing question is: does a group consisting of a large number of Congressmen, but which is obviously not itself Congress, have standing to challenge a decision holding a federal statute unconstitutional when the executive branch is of that opinion also?

The Court seems to be maximizing its options for disposing of these cases on standing. The result could be standing rules that restrict activist standing beyond anything Justice Scalia ever dreamed of, and an executive coordinate constitutional review power beyond anything Andy Jackson ever dreamed of. And that's if the gay interest wins on its standing issues. One presumes it would just as soon lose on those issues and take its chances on the merits. Or would one?

:: David M. Wagner 6:25 PM [+] ::
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:: Monday, November 26, 2012 ::

Obamacare may return to the Supreme Court via the Fourth Circuit: the Court has vacated its earlier dismissal of Liberty University's suit challenging the individual mandate and the abortion-provision mandate, and ordered the Fourth Circuit to hear arguments in it.

George Mason's Ilya Somin is not optimistic.

This is not the "origination clause" suit I've heard about. What's up with that one?

:: David M. Wagner 5:57 PM [+] ::
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:: Thursday, October 18, 2012 ::

2nd Cir. hold Sec. 3 of DOMA unconstitutional, using the catch-all of constitutional causes one doesn't know what else to do with -- intermediate scrutiny. Dissent would use rational basis test. Hoping to write more tomorrow.

:: David M. Wagner 3:07 PM [+] ::
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:: Thursday, September 20, 2012 ::

Very well, Ninomania's portal to the Posner v. Scalia fish-slap dance will be the one provided by Ed Whelan. Here you go.

:: David M. Wagner 10:34 AM [+] ::
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My post at CatholicismUSA on the Romney donor-dinner "47%" vid (known now, though not when I wrote this, to be incomplete, much like your basic James O'Keefe III vids, which at first this was  supposed to be totally unlike).

:: David M. Wagner 8:14 AM [+] ::
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:: Tuesday, July 03, 2012 ::

Who leaked?

It's still only speculation, but Time Magazine blogger Adam Sorensen offers here some good reasons to think it was not clerks who leaked details of the Obamacare case (NFIB v. Sebelius) deliberations to reporter Jan Crawford, but could only have been one (perhaps more) of the Justices themselves. And since AMK's role as last-ditch defender of the unconstitutionality of Obamacare, and his efforts to keep the Chief on-side, figure prominently in the leaks, well.... Also it was a (visibly angry, they say) AMK who read the dissent from the bench, despite its being a joint product with many Scalia touches.

Furthermore, it's hard to imagine any of the other three leaking. Scalia would fob a reporter off with a quip. Alito would act (and be) shy. Thomas, for all I know and as I may well guess, has his staff direct all press calls to a dedicated line with a rude message and a journo joke.

This is not the occasion to write about Justice Kennedy's previously-evidenced fondness for the media limelight -- because if the facts are as they are turning out, he acted in part because he was facing a mammoth attempt to outdo him in that regard. (And in part, b/c he was just plain right about the Constitution.)

As Time writer Sorensen notes: "We tried to talk him out of it, but President Obama and the liberal New York Times were just too powerful is not a narrative I imagine Roberts would endorse." Surely not, but that, and not "wise judicial statesman Roberts rises above partisanship," is going to be the narrative he gets. Say this much for AMK -- he shouldn't play the media, but at least when he does, he plays 'em right.

:: David M. Wagner 8:43 PM [+] ::
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:: Monday, July 02, 2012 ::

Good news, of a sort: I'm not right all the time. What a burden to set down. On May 23 I wrote that the campaign to make Roberts switch his vote by scaring him with threats of damage to his "historical reputation" and what-not -- this campaign was blisteringly obvious at the time -- wouldn't work.

Silly me.  And, once again, apologies to Justice Kennedy! 

Thanks to illegal and immoral leaks from judicial clerks (who else could the sources possibly be?), ace Supreme Court reporter Jan Crawford, the thinking man's Linda Greenhouse, has revealed that CJ Roberts changed his mind not at the last minute (as I erroneously speculated, tho' not without foundation), but earlier in the process; likely in early May, while working on what would have been a 5-4 opinion for the Court striking down Obamacare.

(In partial defense of my damaged claims to infallibility, I did write in my June 29 post, which was before Ms. Crawford's reporting: "In short, the Court got zilch, or worse - it got, as a fact on the ground, the principle that a campaign of threats against its 'legitimacy' (whatever that means) in the elite press can actually change outcomes.")

Now we turn to Sen. Patrick Leahy, D-Vt., Chairman of the Judiciary Committee and indefatigable liberal activist. Sen. Leahy gave a speech on May 14 entirely targeted at the Chief. Not at Justice Kennedy, whom everyone thought would be the waverer if there were one, but exclusively at Roberts.

What did Leahy know, and when did he know it?

:: David M. Wagner 10:01 AM [+] ::
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The Wall Street Journal agrees with me -- and explains, better than I did or probably could, exactly why the taxing power discovered in the Obamacare opinion is novel and dangerous. Tag: I Hate Being Right All The Time

:: David M. Wagner 9:42 AM [+] ::
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:: Friday, June 29, 2012 ::

"It's not Marbury. It's a very naughty boy."

This must be the week the "Free Hallucinogens for Conservatives" part of the Affordable Care Act kicks in. So many of them have reported sightings of flying lizards, green elephants, diamond skies, silver linings in the Obamacare decision, and resemblances of it to Marbury v. Madison. Dudes, it's a bad comedown, and flashbacks do happen.

First, Marbury was a unanimous opinion, whereas Obamacare was partly 5-4, partly plurality only, and in its final form resulted (pretty obviously) from a change of mind by Chief Justice Roberts, possibly very late in the process. Whatever John Marshall was doing, he knew what he was doing.

Next. The basic "it's-Marbury" spiel is based on a now-standard, but also seriously incomplete, view of Marbury itself. According to this view, Marbury is less a judicial decision than a coup d'etat: with the judiciary being the only branch still in Federalist hands following the Jeffersonian sweep of the 1800 elections, Marshall (so the narrative goes) cleverly maximized its power, by "inventing" (less doped-up versions content themselves with "establishing") the power of judicial review, but doing so in a way that left President Jefferson with nothing to complain about. Jefferson could hardly- could he? - complain about a decision in which the Supreme Court held that it lacked the power to force him to hand over William Marbury's judicial commission. Even though the Court could only find this lack of power by holding unconstitutional an act of Congress that purported to give it that power.

Similarly, Chief Justice Roberts, yesterday morning, held (for a majority of the Court, since the conservative "dissent" agreed with him on this point - in fact, it wrote an entirely separate analysis on it: mighty odd thing for a dissent to do on an issue on which it doesn't disagree with the opinion it's dissenting from - but enough of that for now) that the individual mandate is beyond Congress's Commerce Clause powers, that Wickard v. Filburn is barely tolerable as an outlying precedent, and that the Court is certainly not going to extend it from marginal private economic activity (Wickard) to outright non-activity (this case).

But by going on to hold that the very same individual mandate is constitutional as a tax, so the argument goes, the Court left Obama unable to complain, just as Marshall left Jefferson unable to complain.

This is a valid parallel only if you see, in both cases, something the Court gained. In Marbury, the Court is said to have "gained" the power of judicial review. This is nonsense. Judicial review was a very familiar concept in Anglo-American jurisprudence, and in the U.S. Supreme Court particularly, even before Marbury. Its contours were highly restricted in England, with its emerging rule of parliamentary supremacy, but it was known. As for the U.S. Supreme Court, it had several times before Marbury considered constitutional challenges to acts of Congress, which is a very silly thing for a court to do if it has no power to issue the only conceivable remedy. The fact that Marbury was the first time the Court had ruled against the constitutionality of an act of Congress is a long way from the claim that the case "invented" the power to do so.

And what did the Court supposedly gain in the Obamacare decision? Every claim being made on that score is a claim based on the supposed benefits of giving in to intimidation. The narrative runs: the Court now knows how naughty it was to protect speech that liberals don't like in Citizens United, and it therefore knows it would have been grounded for a week if it had struck down government health care that liberals also like, so it just had to be good. Or rather, if the Scalia-Kennedy-Thomas-Alito boys wouldn't be good, Roberts had to be good and do what the grown-ups say or, you see, they'd all be punished. With what, I'm not sure, but liberal columnists like Jonathan Chait seem to understand these things.

In short, the Court got zilch, or worse - it got, as a fact on the ground, the principle that a campaign of threats against its "legitimacy" (whatever that means) in the elite press can actually change outcomes. I really didn't think it could. I was wrong. But to claim - especially for conservatives to claim - that the Court is the winner for being given thirty rather than forty lashes by Slate and MSNBC and New York Magazine is to signal that the "Constitution in exile," far from being on the verge of a return, may as well buy property in Fiji.

Another Marbury-Obamacare parallel asserted (this time by critics of both of the Chief Justices we are discussing) is that much of the discussion in their opinions was unnecessary dicta, and therefore, could only have been politically motivated. But as to both of them, the charge is unjust. In Marbury, Marshall's long exposition of how Jefferson had wronged Marbury may indeed have served to embarrass Jefferson, and was no doubt welcome on that score - but it also served to explain to the world why the decision's ultimate confrontation with the constitutionality with Sec. 13 of the Judiciary Act (the part that purported to give the Supreme Court the power to issue writs of mandamus in original jurisdiction cases) was necessary. The explanation of how the Court got to that point could have been shorter, but it could not (fairly) have been omitted. (see Robert Lowry Clinton, Marbury v. Madison and Judicial Review.)

Similarly, Chief Justice Roberts faced in the Obamarcare decision a case where the administration had placed all its eggs in the boat of the Commerce Clause (this is what gives rise to the critique that the Chief "re-wrote" the statute by affirming it on the basis of the Taxing Power). In order to bypass the constitutional clause that was the government's chief reliance, he had to explain why. The Ginsburg dissent (as the Chief explains) is simply wrong to assert that, in light of his eventual decision to affirm the statute on the basis of the Taxing Power, he could or should have bypassed any discussion of the Commerce Power. He had to explain why he was rejecting the more obvious basis for the statute, just as Marshall had to explain why he could not avoid facing the issue of whether or not the Constitution allowed Congress to give the Supreme Court the power to issue mandamus in original jurisdiction cases.

So yes, I've just explained a way in which the two cases are similar. But these are not the similarities that are being cited and held up for conservative applause. The latter have to do with clever political maneuvering. But Justices are not supposed to do political maneuvering, clever or otherwise. And, as political maneuvering goes, Roberts's Obamacare maneuver (if such it was: I'm not signing on to that view) was not clever, at least not for the Court. (It may yet prove clever for Romney, but that's really not what Justices are supposed to be concerned about. And in any case, the most intense Marbury cynics have never argued that Marshall was trying to get some Federalist politician elected President.)

:: David M. Wagner 4:07 PM [+] ::
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:: Thursday, June 28, 2012 ::

The mighty Ed Whelan has noticed it too.

He also takes on the question: who in fact wrote the "joint dissent"?  Ed first floats the view that the joint dissent was drafted as the Opinion of the Court, but then Roberts failed to find it persuasive, thus yanking its fifth vote. But OTOH, says Ed, why would the Chief not have assigned the Opinion of the Court to himself in the first place?

Well, I defer to Ed on the mechanics and politics of these things, but it is perfectly clear that large swaths of the joint dissent bear unmistakable stylistic signs of Scalia; and I don't mean only that last two pages - the only parts that actually look like a dissent from the controlling opinion. Yet I don't insist that Scalia wrote the whole thing: occasionally it sags, suggesting the work of other hands.

(Do I sound here like a Jacobean drama prof discussing whether a disputed Shakespeare play, like "Two Noble Kinsmen of Edward III That Ends Well" or something, may have had a co-author?)

Kennedy read out the bench version this morning; perhaps for this reason, NRO is running part of it under his by-line. Much honor to him to signing onto the whole thing. Why did he do the honors this morning? Maybe because "another Scalia dissent" would be too typical: showcasing support for the joint dissent's views from a perceived "moderate" has value. Or, perhaps to show solidarity despite some Scalia-Kennedy tangles in the past. Perhaps Kennedy originally had the assignment (from Roberts, to write for the Court), then courteously accepted some Scalia paragraphs.

I don't know. But two things are clear: 1. There's a lot of Scalia in it. 2. A "joint dissent" (as opposed to a dissent by Justice A, joined by Justices B, C, and D) is rare, if not unprecedented, so we're being signalled that this is a very unusual situation.

:: David M. Wagner 4:58 PM [+] ::
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Spooky. Whereas in Casey, the Rehnquist dissent bore telltale signs of having been written originally as the opinion of the Court, the joint dissent in the healthcare case reads as though it had never been and is not now anything else. What happened here?  (The entire opinion is now online.)

For one thing, the "dissent" does its own Commerce Clause analysis, despite the Roberts opinion have separetely done one and rejected the individual mandate on Commerce Clause grounds. The normal dissent procedure would be for the dissenters simply to note their agreement with the majority on those points on which they do in fact agree.

Oops -- looks like others agree! 

First paragraph of dissent:

Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection andAffordable Care Act (Affordable Care Act or ACA) go be- yond those powers. We conclude that they do.

Is that the way you begin a major dissent in a major case?

And the first time the "dissent" responds to another opinion, it responds to that of Justice Ginsburg -- the actual dissent, now turned into a partial concurrence/partial dissent.

Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense. [Scalia et al., slip op. at 13]

Quite right - but not they way you'd put it if you're writing the dissent!!  Page 16 of the slip opinion marks the first point at which the joint dissent stops referring to the Ginsburg dissent as simply "the dissent," and uses for the first time (footnotes aside) the term "Ginsburg dissent."

The "dissent" also discusses the it's-a-tax issue and the Medicaid funds withholding issue without once alluding to the existence of a separate controlling opinion out there that addresses both questions. (The passing reference to "Justice Roberts" on the "dissent"'s page 30 is to Justice Owen Roberts, author of U.S. v. Butler [1936]).

The "dissent"'s first acknowledgment of the existence of the controlling Roberts opinion, which is what it is supposedly dissenting from, occurs on page 46; that is, in Part IV(F). The first actual reply to anything in the controlling opinion ("Worse, the Government’s remedy, now adopted by the Court..") occurs on p. 48). Given Scalia's (not to diss the others') attention to workmanship, this suggests that the Big Switch, and the consequent need to revise the opinion to make it a dissent, occurred hours, not days, before this morning.

:: David M. Wagner 1:02 PM [+] ::
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I haven't posted in a couple of hours b/c I'm working on a promised op-ed about the healthcare decision. I pause to note that, while Kennedy did the honors of reading the dissent from the bench, it was not one Justice's dissent with three others joining: it's a joint dissent. This is rare, and clearly meant to highlight their dissatisfaction.

:: David M. Wagner 12:51 PM [+] ::
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Amy Howe (Scotusblog: 

"Yes, a commenter notes that the Chief Justice's opinion starts with a mini-civics lesson -- definitely an awareness that this is one for the ages. Reminded me of his opinion in Snyder v. Phelps, the funeral protesters' case last Term"

You know, HLS is one thing, but those Harvard undergrads really should sod off with their "civics lessons."

:: David M. Wagner 11:18 AM [+] ::
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My prediction about the outcome was basically right, but I was seriously wrong about, and unfair to, Justice Kennedy. Not only would he strike down the ACA in its entirety, he is raising his dissent to read-from-the-bench status.

:: David M. Wagner 10:33 AM [+] ::
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A small consolation is that a majority holds that the individual mandate would be unconstitutional under the Commerce Clause. This makes no practical difference for Obamacare, since they uphold it under the taxing power, but at least the "Wickard-but-no-further" principle stands, as do Lopez and U.S. v. Morrison.

:: David M. Wagner 10:31 AM [+] ::
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Of course, if Obamacare remains politically unpopular, this gives Romney and Republican House and Senate candidates a good issue; and if enough of them get elected, they can do some repeal-and-replace. No affirmance by the Supreme Court means the ACA is beyond legislative alteration.

And needless to add, the HHS Mandate lawsuits go forward. Their legal basis is solid.

:: David M. Wagner 10:19 AM [+] ::
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I was wrong on only one point: the renegade was Roberts, not Kennedy.

:: David M. Wagner 10:16 AM [+] ::
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:: David M. Wagner 10:14 AM [+] ::
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Tom Goldstein (Scotusblog):
"The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read"

:: David M. Wagner 10:14 AM [+] ::
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Scotusblog says: "CJ Roberts joins the left of the Court." Let's sleuth out all those leftist op-eds, now being deleted and shredded, denouncing him for "judicial activism."

:: David M. Wagner 10:12 AM [+] ::
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Taking Scotusblog a long time to parse, which is NOT good. Just like Casey. As I said.

:: David M. Wagner 10:10 AM [+] ::
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Not even clear yet who's writing, but sounds like Kennedy.

:: David M. Wagner 10:10 AM [+] ::
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Individual mandate okayed as a tax.

:: David M. Wagner 10:09 AM [+] ::
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Apparently Healthcare opinion is very thick (American sense). Could be due to multiple partial concurrences/partial dissents etc.  (Of course, may be thick in Brit sense too.)

:: David M. Wagner 10:06 AM [+] ::
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Kennedy delivers Alvarez (Stolen Valor Act) opinion. More likely that Scalia or Roberts will deliver Healthcare?

:: David M. Wagner 10:03 AM [+] ::
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Scotusblog dealing with rumors - unsubstantiated and unlikely, TBTG -- that Pres will attend Court session. That could actually raise separation of powers issues imo. Certainly if he were to claim a right to speak more than any other member of the audience -- i.e., none at all -- the Court would have to call sacuurrrity on him. "Ya see us judging? RUUUD."

:: David M. Wagner 9:55 AM [+] ::
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Last night, a good time was had by all with Twitter hashtag game #otherSCOTUSpredictions. Mine mostly had to do with opera. You might look them up while waiting.  --  Oh heck:

8-1, Radames's sentence commuted. Scalia dissents bc 8th Am does not have proportionality req + his Celeste was weak ‪#otherSCOTUSpredictions

Wotan may take Ring from Fafner non obst. Spearrunes bc novation under duress. 8-1. Scalia: stop f'ing w Ks & operas ‪#otherSCOTUSpredictions 

"Sposarla o pagarla" violates 14th Am rt to marry. Scalia dissents bc desp McDonald v Chi. he's not THAT happy w sdp ‪#otherSCOTUSpredictions

Azucena's murder conv commuted to "adequate provocation" manslaughter & sentence reduced to "time sung" ‪#otherSCOTUSpredictions 
 
8-1, overturns DH rule. Breyer dissents based on hypo that Scalia, concurring separately, calls "mondo bizarro." ‪#otherSCOTUSpredictions  (Angus Dwyer adds: @david_m_wagner real action is in 3rd footnote: dicta stating that a tie does not go to the runner (a position none of the litigants argued)

Chief announces: "Justice Kennedy has today's opinion, but first, the Court would like to do the Wave." ‪#otherSCOTUSpredictions

Chicken v. Egg set for reargument next term ‪#otherSCOTUSpredictions

And one by @dan_munz that I really liked: Scalia thought Roberts was writing it. Roberts thought Scalia was writing it. Everyone is totes embarrassed. ‪#otherSCOTUSpredictions

:: David M. Wagner 9:30 AM [+] ::
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At blogging station. Note: healthcare case is not the only one expected today. Quoting Tom Goldstein of Scotusblog, we also expect cases that will decide "whether Congress (1) can make it a crime to lie about a military honor, and (2) create a right to sue for someone who has not been personally injured."

:: David M. Wagner 9:17 AM [+] ::
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:: Tuesday, June 26, 2012 ::

Warning to conservatives: remember 1992.

At the end of the 1991-92 Court year, the last regular day for decisions brought Lee v. Weisman. The Court was widely expected to allow nonsectarian benedictions at high school graduations, and perhaps even overrule Lemon v. Kurtzman. Instead, Justice Kennedy, joining the Court's liberals, created a concept of "psychological coercion" to explain why benedictions at high school graduations are a prohibited "establishment of religion" because polite behavior by passive students might be construed as consent.

There was an angry dissent by Justice Scalia.

A few days later, stretching beyond the Court's normal term because of the controversial nature of the case, the Court finally delivered Planned Parenthood v. Casey. In this case most observers were sure - sure - the Court would overrule Roe v. Wade, or least scale it back to insignificance. Instead it reaffirmed it loudly, even while rewriting it and upholding several challenged abortion regulations. Planned Parenthood ran their previously designed and paid-for ads lamenting the decision (refocusing on the regulations upheld), and concealed for a few days, until it could no longer be denied, the breadth and depth of its victory.

And Scalia wrote an epic angry dissent, of tragic dimension.

Fast forward to 2012. On what should have been the last day for delivering decisions, the Court handed down the Arizona immigration law case - a decision by Kennedy joining the liberals, with an angry dissent by Scalia.  And now we're waiting for the really big decision of the year, as to which everyone is sure - sure - about the general drift of the outcome, and uncertain only about the extent.

Pardon me - I've seen this movie.

It's against the odds, but here's how I'm betting. Kennedy is writing the opinion, joined by the liberals. It will uphold the Affordable Care Act in its entirety, distinguishing Lopez and U.S. v. Morrison (that can't be done convincingly, but I think I could do it well enough for five members of the Court, on demand). Roberts is writing a measured dissent. There's an outside chance that Scalia will apply here his position in Raich, but, as I've explained (scroll down to June 20), this case is sufficiently different that this is unlikely, so I think he is working on his own dissent. An angry one, of course.

The only way the 1992-2012 parallel doesn't work is that while Lee v. Weisman was a surprise, and indicative of a liberal drift in Justice Kennedy's thinking that year (I'm told that one should completely discount the fact that Laurence Tribe protege Michael Dorf was clerking for him that year), the Arizona immigration case was a toss-up going in, and, unlike Weisman, the result gave both sides something to take home. OTOH, the Arizona decision is a strongly federal-supremacist. Of course, there is no pre-emption issue in Obamacare, but overall, Kennedy does not appear to be in a state-protecting, feds-curbing mood this year.

Now that you've read this post, it can only get better :)

:: David M. Wagner 2:16 PM [+] ::
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According to WaPo blogger Ezra Klein, it'll be The New York Times's fault if Obamacare is overturned: it granted space to the existence of legal arguments against it, thereby granting a "permission structure" (what you or I would call an endorsement) for the legitimacy of such arguments. A more effective freeze-out was expected from the paper of record.

:: David M. Wagner 12:21 PM [+] ::
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:: Monday, June 25, 2012 ::

Obamacare decision on Thursday, it seems. Was going to say "it appears," but that sounded a bit Lovecraftian, given my experience with Supreme Court very-very-end-of-year copy-dumps.

:: David M. Wagner 10:43 AM [+] ::
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Bahahaha! Amy Howe: "To answer another question, yes, Paul Clement argued on behalf of Arizona in the case, against Solicitor General Don Verrilli. In general, if you don't know who argued a case, Paul Clement is always a good guess"

:: David M. Wagner 10:33 AM [+] ::
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Apparently STILL NO HEALTHCARE DECISION TODAY. Arizona immigration law decision is out. Acc. to Amy Howe at Scotublog, Court, per Kennedy, hold that "it was improper for the lower courts to enjoin Section 2(B), which requires police officers to check the legal status of anyone arrested for any crime before they can be released." Sounds reasonable. The parts of these state immigration statutes that frost my shorts are the ones that command different treatment for arrestees (or Terry-stopees, or traffic-stopee) who "look illegal" (tho' the statutes never make it that obvious). As Amy notes, those issues were not before the Court in this case.

:: David M. Wagner 10:22 AM [+] ::
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Montana case defying Citizens United summarily reversed per curiam; Breyer dissents.

:: David M. Wagner 10:13 AM [+] ::
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Juvenile sentencing case. A majority (I'm guessing Kennedy + "liberals") remains convinced the 8th Am contains a proportionality requirement. A position more attractive than convincing. Justice Alito is cheesed off: reading his dissent from the bench.

:: David M. Wagner 10:07 AM [+] ::
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Citizens United majorly lives. Montana challenge summarily reversed.

:: David M. Wagner 10:04 AM [+] ::
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Welcome. If you're here, you're probably not here,  b/c you're watching the live feed at Scotusblog. Which is fine, but just a reminder: as the Becket Fund has reminded us, it would take the striking down of all of Obamacare (unlikely imo) in order to moot out the case against the HHS mandate. That said, the striking down of the individual mandate, if that is what happens (don't bet on anything), would be an important strike for enumerated powers and (so to put it) a non-unlimited federal government, meaning, a federal government with inherent limits in addition to those specified in the Bill of Rights.

:: David M. Wagner 10:01 AM [+] ::
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:: Thursday, June 21, 2012 ::

Knox v. SEIU -- another Alito opinion for the Court. He is totes not writing the Obamacare decision!

:: David M. Wagner 10:09 AM [+] ::
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Southern Union. Another crim pro case that scrambles the supposed ideological lines. Sotomayor for the Court, Scalia in majority, dissent by Breyer, joined by Kennedy and Alito. H/t Scotusblog, of course.

:: David M. Wagner 10:05 AM [+] ::
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Just a note before this morning's S.Ct. copy-dump. On Monday Justice Alito delivered two opinions (one of the Court, one plurality as to outcome); this diminishes the likelihood that he is writing Florida v. HHS (the Obamacare decision); but then, the Chief is probably writing it due to its national importance, just as then-CJ Rehnquist was working on the Casey opinion before Justice Kennedy changed its outcome. (Follow the link if you like: dissenters do not use "we.")

The fact that Scalia let Kagan do the honors in the William dissent suggests that he himself is busy with an opinion of a different kind: possibly the Court's opinion in Florida v. HHS, more likely a scathing concurrence critiquing the majority for not going further. If so, I doubt this is because he is a sudden convert to Thomas's view that every Commerce Clause since Jones & Laughlin should be revisited, but rather because Obamacare could within reason be found to go beyond the New Deal precedents. Anyway, the Confrontation Clause is Scalia's garden project, as well it should be, and his ceding the dissent to Kagan in the Williams case provokes remark. Perhaps he wanted Confrontation Clause fidelity to be associated with someone besides himself, and a new member of the Court at that. Perhaps he simply knew she would do a great job with it, as she did. But it's comment-worth in any case.

:: David M. Wagner 10:03 AM [+] ::
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:: Wednesday, June 20, 2012 ::

Scalia and Wickard

We may get the Obamacare decision tomorrow (though it may be delayed until as late as June 28), so I thought I'd put down a canard that is getting around.

Justice Scalia, together with frequent co-author Bryan Garner, has just released a new book, this one on interpretation of legal texts. In this book Our Hero writes that Wickard v. Filburn "expanded the Commerce Clause beyond all reason[.]" This has set off a flurry of speculation that he is ready, not only to strike down Obamacare in its entirety, but to go further than he has yet gone in striking down federal legislation based on expansive readings of the Commerce Clause.

One such speculator is health-care policy analyst Avik Roy, writing in Forbes. We have Mr. Roy's assurance that "Wickard remains "remains the core justification for 70 years of federal intrusion into the activities of individuals and localities" and that

Scalia's criticism of Wickard in his new book is surprising because Scalia’s concurrence in Gonzales v. Raich, the most recent major Commerce Clause case, is justly seen as an endorsement of Wickard. “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote in that 2005 case. 

Well, Mr. Roy is not a lawyer. Time out for a reminiscence. My own interest in the public-policy implications of constitutional law long antedates my own entry into law school. With due regard for certain scholars who have influenced legal thinking without law degrees (Terry Eastland, Walter Olson, Christopher Wolfe), these are rare, and usually, like Prof. Wolfe, in Poli.Sci. departments. As for me, hearing the views of other scholars dismissed on the grounds that Prof. So-and-so "is not a lawyer" - and I heard this a lot in my DOJ days - was a significant factor in my own decision. In fact, some of the friends who, when asked directly, encouraged me not to go to law school had themselves initiated and solidified that intention with their own "Prof. A. isn't a lawyer" put-downs.

So you will permit me to repeat -- I have, after all, been preparing for it for some time -- that Mr. Roy is not a lawyer. There are therefore certain nuances that he may miss, even with his expertise in medical policy. One is that Wickard is not, in fact, "the core justification for 70 years of federal intrusion into the activities of individuals and localities." Many such intrusions could get by perfectly well relying on NLRB v. Jones & Laughlin and U.S. v. Darby, without needing Wickard. And if Wickard were overruled but Jones & Laughlin and Darby were not, we would still have a very broad Commerce Clause -- possibly broad enough to allow Obamacare in its entirety.

Another easily missed nuance is that there is no necessary connection -- indeed, there is frequently a sharp disjunction -- between what a Justice says in off-the-bench speeches and writings, and what he says in his capacity as a Justice. "Commentator" and "Justice" are two different roles, and there is no need for perfect consistency between them. In the specific case of Scalia, he is more respectful of precedent on the Court than off it. Not even in his Raich concurrence (with which I disagree, for the record: I think the O'Connor and Thomas dissents in that case both scored well) did he argue that Wickard was well-reasoned: only that it was the law, part of the corpus of precedents that the Court either has to follow, distinguish, or overrule; and that, under it, the Necessary and Proper Clause solves the case. (O'Connor. as I understand her, would distinguish Wickard; Thomas would certainly overrule it.)

So if Mr. Roy or anyone else is expecting Florida v. HHS (the name the Obamacare case has taken on) to feature, even in a concurring or dissenting capacity, a Scalia opinion calling for the overruling of Wickard, I would advise them to adjust their expectations.

Mr. Roy also sees tea leaves in a speech given last Friday by Justice Ginsburg to the American Constitution Society (the organization that in effect says to the Federalist Society: "No, you're wrong, there isn't any liberal bias at law schools, so along comes us to provide one") in which she talked up the value of dissents (quite rightly imo). and then, according to Mr. Roy:

Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.

Well we don't have direct quote there; it would be quite extraordinary if a Justice said in public "Here's where we're at in our historically private and closely guarded deliberations, see...." Yet no one should be surprised that a "compromise" such as striking down the individual mandate but leaving the rest of the bill standing has inherent split-the-difference appeal for Justice Kennedy, who, for all we know, like Powell in Bakke, or the three-Justice "controlling opinion" in Casey, may be working on an opinion that only he and one or two others agrees with down the line, with separate majorities supporting different parts* -- though I believe the present Chief will do everything possible to prevent a fragmentation as radical as that and to make sure there is an "opinion of the Court."

*Recall how in yesterday's Williams v. Illinois, Justice Kagan, dissenting on behalf of truth, justice, and the American way, and joined by Scalia as well as Ginsburg and Sotomayor, noted that there were in fact five votes against the legal reasoning of the "plurality," and so the "plurality" gets to be the "plurality" only because there were five votes for the outcome.

:: David M. Wagner 4:07 PM [+] ::
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:: Monday, June 18, 2012 ::

Kagamania: the lady's loaded for bear!

What was that I read some weeks ago about Kagan going hunting with Scalia? And it was, you know, totally with, not for? Well, it would appear from her dissent in Williams v. Illinois (in which Scalia joins, along with Ginsburg and Sotomayor) that she's learned to go after big game:

In the pages that follow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dissent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.

That creates five votes to approve the admission of the Cellmark report [on the defendant's DNA; the accuracy of this report was not testified to in court by any witness with knowledge thereof -ed.], but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable forensic reports. JUSTICE THOMAS’s concurrence, though positing an altogether different approach [i.e. a narrow view of what makes hearsay "testimonial' -ed.], suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because defendants like Williams have a constitutional right to confront the witnesses against them, I respectfully dissent from the Court’s fractured decision. 

The decisions she refers to lead off with Crawford v. Washington; a teaser for my article on that case, with full cite, is here.

:: David M. Wagner 3:56 PM [+] ::
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The Williams v. Illinois plurality opinion could be subtitled "Trial Judges Never Get Confused." That's certainly an assumption it makes. And it's true, right? Can I get an amen, litigators? Well? *crickets*

:: David M. Wagner 3:38 PM [+] ::
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So if I'm reading Williams v. Illinois right so far (and I haven't finished it), it seems persons with otherwise-inadmissible evidence useful to the prosecution can get it in by mentioning it to an expert who is going to testify for the state -- casual-like, so as not be "testimonial," see Thomas concurrence -- and this will be enought to get around both the hearsay rule and the Confrontation Clause. Does the outcome change if facts show prosecutors colluded with this discrete indiscretion? Will it ever be possible to show that, even when it happens?

:: David M. Wagner 10:37 AM [+] ::
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Williams v. Illinois: bad Confrontation Clause result, but not a major setback: plurality only. Alito writes for plurality. Dissenting coalition: Kagan writes, joined by Justices Scalia, Ginsburg, and Sotomayor. Love me some NACDL and some Innocence Project.

:: David M. Wagner 10:14 AM [+] ::
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Watching Court opinion delivery via Scotusblog this morning.

:: David M. Wagner 10:07 AM [+] ::
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:: Wednesday, May 23, 2012 ::

"Mr. Chief Justice and may it please the Court: boogie woogie woogie. I see my time is up."

My colleague Jay Sekulow will be on Fox today at 1:15 discussing the threat strategy some believe is currently being deployed against Chief Justice Roberts in regard to the Obamacare cases. The facts have been piling up for a while; the take-off point for the discussion is a column in The Washington Post by Kathleen Parker.

Now, Parker, said to be a conservative, has not always been my favorite: when she was produced in evidence against Sarah Palin in the 2008 campaign as a "leading conservative," I had never heard of her, and I flatter myself that I am at least moderately informed of who's who in the conservative world -- leading me to suspect that the fastest way to be labeled a "leading conservative" by the MSM is to (1) call oneself a conservative, and then (2) attack a conservative icon at a crucial moment. But all is forgiven today.

Now, the campaign against the Chief that Parker describes is tosh on several levels. For one things, it is entirely possible to find Obamacare unconstitutional without disturbing precedents such as Jones & Laughlin or Wickard. I myself think Wickard should be overruled at the earliest opportunity, and Jones & Laughlin, Darby, and the rest should be given the squint-eye. But just as Wickard was a Bridge Too Far even after other New Deal precedents, since it added the "aggregation" principle to the "substantial effects" principle, so upholding Obamacare would be yet another Bridge Too Far, as it would allow regulation of economic inactivity under the Commerce Clause, a step even Wickard did not take. Roberts and the entire Court know all this (though some Justices will be happy to take that step).

But those mounting the threat campaign against the Chief seem to think their real power lies in their power to shape his historical reputation. Thus, they are banking on: (1) his insecurity. But he does not seem to me to have any, and certainly does not have a basis for any. He's lost The New Yorker? Ooo! Scareeeee! Which brings us to: (2) Their own power. Yep: Jeffrey Rosen will write all the history books. Yes, he and his ilk will write some; so will Randy Barnett, Jon Adler, and a host of others. Historical reputation among Justices is variable. Justice Frankfurter used to be beau ideal of a Justice, but much of his jurisprudence bears a close resemblance to Justice Scalia's: praising him would distract from the project of making Scalia seem an isolated crank, so, into eclipse he goes. Meanwhile, facts have caught up to Justice Douglas: once the social justice crusader so fearless not even law could get in his way, now he's "Wild Bill." Writing decisions with an eye on the history books is a mug's game. (Oh, sorry, Justice Kennedy - nothing personal.)

:: David M. Wagner 11:30 AM [+] ::
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:: Saturday, May 12, 2012 ::

White House Enemies List, 2012-style

:: David M. Wagner 6:33 PM [+] ::
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:: Monday, April 30, 2012 ::

I may include this in future syllabi:



Like this infographic? Get more copywriting tips from Copyblogger.

:: David M. Wagner 9:45 AM [+] ::
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:: Monday, April 02, 2012 ::

Oh that judicial activism...!

Actually, as Virginia AG Ken Cuccinelli points out in his e-letter "Cuccinelli Compass" today, upholding Obamacare would effectively overrule Marbury: it would require such extreme deference to congressional judgment as to what "commerce" is, what "substantially affects" it, etc., that the Court could no longer assert with a straight face that it exercises independent judgment on the constitutionality of the statutes Congress enacts, which Marbury affirmed it must do.

The statute may be widely nicknamed Obamacare (a nickname recently embraced by the President himself, because, don't you know, "Obama cares"), but Congress, much more than the executive branch, would be the winner, according to Cuccinelli's provocative analysis. (Perhaps the act should be called Congresscare, or, more accurately, LameDuckDemocratCongress AboutToLosePowerCare.)

All who think a majority of the Court -- a Court not significantly different from the one that decided e.g. City of Boerne and Boumedienne (both Kennedy opinions for the Court, striking down federal statutes) -- will line up to throw away its powers before an almighty Congress, line up here. Thought so.

:: David M. Wagner 7:07 PM [+] ::
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:: Thursday, March 29, 2012 ::

Back now.

I. Obamacare and Raich

While we're watching and analyzing the Obamacare oral arguments, I'll add only this: I see no reason by Our Hero's regrettable position in Gonzales v. Raich should indicate any likelihood that he will find the individual mandate to be a permissible exercise of Congress's interstate commerce power.

The relationship between the Obamacare individual mandate and Obamacare itself differs from the relationship between Congress’s power to override California’s medical marijuana law and the Controlled Substances Act: the individual mandate is a key mechanism of Obamacare, if not the key. No one imagines that the Controlled Substances Act operates primarily by nullifying state laws that allow otherwise prohitable drugs. Obamacare does operate primarily by mandating that individuals buy health insurance. Without the mandate, Obamacare will not merely be inconvenienced (as the CSA would have been by California's Compassionte Use Act), it will be stymied completely, or nearly so.

Oral arguments are notoriously treacherous as indicators of outcomes, but, tentatively, I will say that I see little chance of Justice Scalia not seeing the Obamacare individual mandate under the same Commerce Clause analytic category as Lopez.


II. HHS Mandate and Freedom of Religion

Violation of religious freedom is not the only problem with the HHS regulation mandating that religious institutions (which are parts of churches but don't meet the government's definition of a church -- more on that in a moment) cover forms of so-called medicine that at best violate their conscience and at worse, in their view, render them complicit in homicide. (If you didn't "get" that that's what's at stake, you do now.)

There are good reasons why even those whose objections to the HHS contraception mandate do not take the form I have just outlined should nonetheless not be subject to it. U. of Chicago finance professor and Cato Institute adjunct scholar John Cochrane made that argument in a WSJ op-ed a few weeks ago, and it bears linking, clipping, and re-reading. His conclusion -- "Sure, churches should be exempt. We should all be exempt." -- warms the cockles of my heart, because, as my Regent colleagues know, I am not a huge fan of religious exemptions from otherwise-valid laws. One reason for that, though not the only one, is that such exemptions tend to -- and according to my suspicious mind are intended to -- remove from the political battlefield the troops most likely to combat unjust laws, namely, those with a religious motivation for objecting to them. Buy them off with exemptions, and that sees off much of the resistance to encroaching government.

But at the same time the religious dimension to the HHS mandate issue is too big to ignore. For one thing, many churches -- ones too small or too docile to bother our President -- are being exempted. More significantly, an administration that was so ardently committed to getting contraceptives of all and any kind into women's hands "free of charge" could hand them out itself, paid for out of general taxation. But somehow that's not enough; no no, you see, the Catholic Church has to be made to hand them over, or at the very least, pay directly those who do. That's obviously very important to this administration -- and it's totally Ctulhu.

So, if a suit against the HHS contraception mandate based on Free Exercise were to reach the Supreme Court -- what result, in an Employment Division v. Smith world?

1. RFRA applies. Obamacare is a federal statute, obviously. City of Boerne struck down RFRA as going beyond Congress's 14th Am. Sec. 5 power, but that's only a power to impose Sec. 1 on the states. Of necessity, Boerne said nothing about the possibly continuing applicability of RFRA to federal action. Using the Greatest Law Review Title Evah, Michael Stokes Paulsen said of the federal government that "A RFRA Runs Through It." When the issue came up, in Gonzales v. O Centro Espirita, the Court agreed on this, without analysis, because neither side disputed it.

The real significance of O Centro lies elsewhere: a. the "substantial burden" test is not hard to pass for RFRA plaintiffs, and b. the "compelling state interest/least restrictive means" is really heard to pass for the government, the way strict scrutiny was always meant to be, but had substantially ceased to be under the FE cases that followed Sherbert v. Verner. Evidently the federal government thought it could enact a genuine compelling state interest test for FE purposes, but still rely on the Court to grant a c.s.i. exception whenever the War On Drugs(TM) requires it. Nope, can't have it both ways. Enjoy your "hoasca," big guys!

When the Court considers the HHS mandate from a Free Exercise point of view under RFRA, it shouldn't even be a close case.

2. Even if RFRA did not apply, Sherbert rather than Smith would apply. Smith applies only to laws that actually are "neutral and generally applicable": the more exceptions and exemptions the government grants from any law, the less neutral and generally applicable it is. Obamacare is already cratered with executive exemptions. For this reason alone, the strict scrutiny of Sherbert, rather than the rational basis test of Smith, should apply.

There is furthermore the possibility that, because Obamacare sets up boards and committees for its own administration, it is therefore what Smith calls "a context that len[ds] itself to individualized governmental assessment of the reasons for the relevant conduct[,]" where Smith itself says that Sherbert continues to apply; and perhaps even (though this is farther fetched) a statutory environment "where the State has in place a system of individual exemptions," and therefore "it may not refuse to extend that system to cases of 'religious hardship' without compelling reason."

Whether this latter possibility cashes out or not, Sherbert would apply rather than Smith because Obamacare is not a neutral and generally applicable law, and regardless of whether Sherbert or Smith were to apply, RFRA would apply, making the case virtually unwinnable for the government.

I applaud and encourage all attempts at legislative and lobbying fixes, because "Don't worry, the courts will take care of it" has too often in the past been a bad bet, and is in any case bad civics. But: the Obamaniacs and Church-haters who are triumphantly quoting from Smith are only showing that they don't understand current Free Exercise law.

3. There is also a lurking Establishment Clause issue. As I mentioned earlier, HHS is undertaking to define what a "church" is for purposes of its pitiful "religious exemption" (for example, a U.S. based branch of Mother Teresa's order of nuns would not qualify, because it engages in activities other than "worship," and serves persons other than Catholics).

Now, we must grant that some offices of the U.S. Government engage in church-defining all the time, because there's no way around it: the IRS, most obviously, because of envelope-pushing demands for tax exemptions. Amazingly, they've done an all-around passable job with the task. But that's an isolated area of law dealing with one government function, and a highly traditional one at that. A carve-out could be made for tax-collecting.

Outside of that, the business of telling a church that it isn't one is probably within the range of actions prohibited to the federal government by the rule against making a "law respecting an establishment of religion." The core Establishment Clause violation is giving one church favorable national status; but the clause may also be violated by giving one church inferior status (and let's be honest, we are talking about one church here, even though many other churches have joined in the Catholic Church's protest, thus promoting ecumenism like whoa).

That's what the Free Exercise Clause is for, you say? Well, I've already given reasons why the mandate also violates that clause as currently construed. But as a vehicle for freedom for churches as bodies, I suggest that the Free Exercise Clause has a more individual focus, and aims first and foremost to make sure that the federal government won't punish people for attending the "wrong" church(es). For the institutional focus, it's the Establishment Clause you want. It's about, you know, establishments.

:: David M. Wagner 8:08 AM [+] ::
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