Law

The Virtues of Tradition

At her blog “Measure of Doubt,” my friend Julia, a storied and brilliant commentator on science and rationalism (and a damn fine vegan cook), offers an analysis of the value of adhering to tradition, from her perspective as a rationalist. This means ignoring distorting influences, insofar as possible, to make more accurate decisions in life.

Julia’s reader questions whether self-described rationalists erroneously prefer to subvert rather than follow tradition whenever possible, rather than whenever wise — resulting in something like the counterculture fallacy, where social groups attempting to cultivate a unique identity reflexively reject cultural norms, thus creating the very type of static, predictable identity they fled in the first place.

To answer the charge, Julia correctly notes that tradition is, by its very nature, bound up with a strong, countervailing selection pressure favoring the status quo. Thus, even though a tradition’s duration is strong evidence that it was, at some time, probably a good idea, unless updated and checked against dynamic social norms, a practice’s longevity alone is not proof of its continuing validity. If self-styled rational actors appear to avoid tradition, then, it’s only because they more forcefully “update” with new information.

This of course is something we’ve bumped up against before on this site, and something that comes up often in law, where the question of how to value tradition — if at all — functionally determines one’s approach to constitutional decisionmaking. There, reflexive trust for tradition famously ossified into the concept of constitutional “originalism,” where a legal tradition’s antiquity defines its merit, not merely because older concepts often derive from the founding generation, but because the conflation of antiquity with merit serves as an easy, objective way to decide close cases. Rarely will you see the debate broken out more clearly than in Justice Scalia’s famous colloquy with Justice Brennan in Burnham v. Superior Court, 495 U.S. 604 (1990) (analysis). Concurring in the judgment, Justice Brennan makes Julia’s very point, that “tradition is salient not in the sense that practices of the past are automatically reasonable today,” but only to the extent that they have some separate systemic value. The rational jurist will focus almost exclusively on that separate value, resulting in a fundamentally different decisionmaking style, and therefore producing an above-average number of conflicts with more tradition-bound judges.

The same process could explain why, at the personal level, rationality may appear to result in an over-correction away from tradition: deference to tradition is simply so prevalent that, once you abandon the practice, your worldview changes dramatically. But like Julia’s reader, I wonder whether over-selection of subversive cultural choices is in fact a by-product of any movement that conspicuously defines itself as different from the rest. As a matter of human nature, we sometimes prefer identities externally consistent with others to those internally consistent with ourselves (pick any show about “fitting in” to see what I mean, like, oh, I don’t know, Mean Girls or My Fair Lady). My answer — and I suspect Julia’s, too — is that those attempting to make rational life choices must first, and before all other things, be honest with themselves about what they want. That may mean adopting or buying into cultural norms that others might find outdated. But just as it’s not anti-feminist to choose to become a stay-at-home mom, it can’t be anti-rationalist to hew to other traditions (monogamy over polyamory/promiscuity?), provided either choice is made, genuinely, to make you and no-one else happy over the long-term. Sometimes, naturally, the value of a traditional practice only becomes apparent in its absence.

Obama’s Recess Appointment: Why Cordray Keeps His Commission, and Survives (or Avoids) Constitutional Challenge [Update]

Authors for The Volokh Conspiracy — the go-to blog for legal nerds (I offer this as a very high compliment) — ask whether President Obama’s act placing Richard Cordray at the head of the Consumer Financial Protection Bureau qualifies as a valid exercise of the recess appointment power since, though recessed, Congressional Republicans have kept the chamber technically “in session” to prevent just such an appointment. It does (or should), but they’re asking the wrong question. The real question is, who’s going to stop him?

A quick review. The Constitution confers on the President the right to appoint executive officers while the Congress stands adjourned:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

U.S. Const., Art. II, § 2, cl. 3. Although Congress stands recessed, Republicans leaders have managed to gavel the chamber to order at regular intervals during the recess, on the theory that each such pro forma session interrupts the recess, thereby preventing any appointments over the legislators’ winter vacation. John Elwood’s brilliant piece — which I strongly recommend — concludes that the Constitution’s framers cared more about true sessions than merely the fabricated appearance of sessions; that Congress remains recessed; and that, therefore, President Obama’s appointment is valid. Elwood hardly stands alone. Bush’s OLC adopted the same position, at least on the op-ed pages of The Washington Post. I expect that, on the merits, Republican legislators (or interest groups) would have a hard time arguing that the pro forma trick amounts to anything other than a slick constitutional run-around. Generally, the Constitution means what it says, and we shouldn’t lightly presume that the framers would’ve simply smiled and nodded at slick little acts of legerdemain like the pro forma session.

Let’s assume for the sake of argument, though, that President Obama has actually done something shocking — aside from standing up for himself, which actually does come as a surprise. Let’s say that any federal judge would agree with Republicans, and hold President Obama’s invalid as outside of the recess appointment power. Surprisingly, this may still not matter.

The reason is, not every right has a remedy; and more to the point, no individual citizen enjoys a “right” to see their government managed effectively. See generally Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007) (canvassing authorities). The only remedy to correct an unconstitutional appointment would likely be something like a writ of mandamus, but all such remaining writs incorporate the requirement that the Article III requirement that the petitioner possess “standing” — a discrete, particularized interest in the activity he would like to see performed. Marbury v. Madison, of course, famously involved a mandamus petition, but in that case the petitioner sought to have his appointment reinstated, not to have someone else’s rescinded. If no-one can claim a direct injury from Mr. Cordray’s appointment, no-one may challenge it.

Whatever exception exists may lie in the structure of the Dodd-Frank Act, which itself created the Consumer Financial Protection Bureau. According to other Volokh authors, some of the CFPB’s powers require a validly-appointed chief; if this bears out, Republicans could (theoretically) await some regulatory action from the CFPB that creates a discrete, particularized “injury,” and then sue to enjoin the action on the theory that, without a validly-appointed chief, any of the CFPB’s actions are ultra vires, since the prerequisites to the agency’s statutory authority have not been met.

Such activity may not be forthcoming, though, and by the time it is, most voters will have forgotten the afront. Separately, query whether Republicans actually want to dig in their heels on another issue favored by the 99% — responsible regulation of major financial actors — and give the President license to grandstand about both the wages of Republican obstructionism, and the need for common-sense custodianship of the American economy.

Odds are this is a fight Republicans simply lost. By changing up the play at the last minute, Obama rolled the hard six he needed, resulting in a quick, clean checkmate, and not a penalty flag in sight. And other such game metaphors.

Update: a Facebook friend directs me to Evans v. Stephens, 387 F. 3d 1220 (11th Cir. 2004) (html/pdf slip op.). There, the Court reached the merits of a Recess Appointment Challenge in the context of the recess appointment of an Article III judge. The Court discusses the jurisdictional question in note 1, where they appear to imply that recess appointment challenges, as applied to Article III judges, may be heard at the court’s discretion. Here, too, the suit was brought by litigants before the allegedly-unlawful appointee, who necessarily possess a discrete, particularized interest in the question of what authority (if any) their judge possesses. For these reasons, I don’t view Evans as necessarily foreclosing a standing argument in the non-Article III context. Note, too, that Evans‘ ultimate holding reads the appointment clause quite broadly.

The Law of the Constitution

By all accounts, today in Iowa, Speaker Gingrich goes to face a great defeat, with pundits expecting him to lose by something close to double digits to both the ideologically vacant Mitt Romney, and faux-constitutionalist crank Ron Paul. Gingrich’s fading fortunes come as a credit to the intelligence of Iowa caucus voters, but the continued popularity of some of his stranger theories prevents me from drawing the same conclusion about the Republican establishment. As one example, a growing number of commentators seem willing to sign off on Gingrich’s most dangerous idea yet: that decisions of the Supreme Court are (somehow) not binding on all members of the constitutional system. We’ve addressed this issue before, but because Jeff Jacoby (for the Washington Globe) appears to muster some new arguments, the issue merits another look.

We all seem to agree that a judicial decision binds the immediate parties to the action: that, at least, is a start. Mr. Gingrich and his surrogates, though, contest whether the higher principles involved in a decision by the Supreme Court immediately become the law of the land, applicable to all similar disputes. Jacoby for Gingrich cites some support — Abraham Lincoln’s pronouncement, for example, that Dredd Scott was not the end of the debate on slavery. But Jacoby confuses an easy issue for a hard one. Lincoln’s point — that Supreme Court decisions may be overruled by subsequent case law, by amendment, or confined to their facts and distinguished by skillful attorneys — is entirely beyond dispute. We need not (and in many cases should not) take the Supreme Court’s word as gospel truth. This is the thesis of former Attorney General Edwin Meese, from whose intellectual flame Gingrich has drawn heat, but no light (pdf).

But while fighting bad law, we should obey the law as it currently exists. This tees up the harder issue: Jacoby seems to imply, falsely, that a principled executive should ignore a Supreme Court decisions setting out constitutional principles with which he disagrees, so long as the law has not been formally applied to his particular controversy. No.

Public officers possess an independent duty to safeguard the Constitution, but that power has its limits. Some examples make the case clear. An executive may constitutionally decline to enforce a criminal law that he believes to be unconstitutional. But the same executive may not continue to enforce a criminal law that has been specifically determined to be unconstitutional.

There exists a middle ground. Due to the the Court’s role as a “particularizer,” in the business of applying general principles to specific disputes, there will often be a lag time between the time when a general rule is enunciated, and when it is applied to a specific controversy. During that time, it is possible to avoid the law’s application, and fight it. Meese’s point (and Lincoln’s) is that a principled executive may take advantage of that time, and needn’t anticipate the Court’s mandate. Gingrich’s point appears to be a principled executive may ignore even a specific application of the law to the facts, Andrew Jackson style. Though consistent with the right’s general disrespect for the law, that is not the case.

It has been said that the Supreme Court’s mandate is the beginning of the conversation, not the end. This is quite so: based on Dred Scott and Plessy and even Roe, no observer of American history could conclude otherwise, or imagine that the Supreme Court’s mandate is ever final in the historical sense. But it is final as to the parties bound, and those who live under the law before it is changed. I cannot imagine that the American people would elect a President who pledged, openly, to invite constitutional crisis. Thankfully, it doesn’t seem like they will.

The Non-Recusal Tradition

Conservatives and the New York Times may agree on one thing: it’s time for the Supreme Court to get serious about producing a framework where Justices can, and do, regularly recuse themselves from matters in which they’ve had an interest. For my part, I disagree. Though there’s a better case to be made for Thomas’ recusal than for Kagan’s in the upcoming Obamacare case, I don’t think either is necessary.

As to Kagan, the path from the Solicitor General’s office to the high Court is a common one. The Solicitor General tends to attract the best legal talent, the lawyers most comfortable in front of the Supreme Court and at the bleeding edge of executive law, and those most interested in public service. In qualifications and in character, for those individuals, the Supreme Court is a quite natural next step, which is why the path describes so many justices from Taft to Kagan. Consequentially, the conflict of interest problem is one that we’ve confronted before: Justices are expected to check their prior careers at the door, and historically, they do just that. In the famous case of Youngstown Tube & Sheet Co. v. Sawyer, Justice Jackson’s concurrence survives as a strong limit on executive power, despite the fact that, as FDR’s Attorney General, Mr. Jackson advocated precisely the vision of executive power that he later denied President Truman. It’s an irony that Justice Vinson noted in dissent — he conspicuously and repeatedly cites pro-executive opinions Mr. Jackson authored as Attorney General — but not one that Justice Jackson appears to acknowledge at all. And that’s the way it should be. The Attorney General frames the law as his client would prefer it; a Justice of the Supreme Court frames the law as it is.

We have no reason to expect Justice Kagan would conduct herself otherwise. Even if Ms. Kagan had been involved in discussions on the individual mandate’s constitutionality (which seems unlikely — this whole Tenth Amendment resurgence is utterly new, remember), she will know and should be trusted to follow her predecessor’s example. The alternative — requiring recusal in every case an attorney encountered in her previous life — is untenable.

No such precedent exists to judge the propriety of Justice Thomas’ actions. It is literally a creation of the twenty-first century for a Justice of the Supreme Court to actively take a role in forming the political climate necessary for the creation of a case he will later decide. Imagine if Chief Justice Marshall had taken to talk radio to blast John Adams (“Jefferson should rescind those midnight appointments, just to show those Federalist dogs what’s what!”), and then gone on to write the decision in Marbury v. Madison.

We’d certainly have reason to doubt the legitimacy of the result. But I’m unable to frame a rule that would require Thomas’ recusal, and not set us on a slippery slope towards recusing any Justice with expressed political opinions. Since that outcome is neither tenable nor desirable, we should probably admit that when Obamacare comes before the Supreme Court, the mandate’s fate will be decided by all nine justices.

Is Ron Paul Actually a Libertarian?

Add to the list of things I don’t understand about Occupy Wall Street — along with why they think blocking midday foot traffic on Wall Street with a meditation line (1) is a good idea, or (2) helps their cause — the support Ron Paul enjoys in some substantial portion of the group. I get that Paul’s wonky, anti-war, farther left than most of the Republican Field, and has some creative economic ideas that don’t involve mortgaging the country’s future to whichever bank can cut him a check the fastest. But Paul’s libertarian ideals functionally end where most liberals would like to see them begin: the bedroom. Paul’s philosophy remains just as intrusive into Americans’ intimate decisions as the rest of the Republican field, maybe not in theory, but in fact. Take as an example his “We The People” Act, the operative section of which follows:

SECTION 3: LIMITATION ON JURISDICTION

The Supreme Court of the United States and each Federal court (1) shall not adjudicate–

(A) any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;

(B) any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or

(C) any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation; and

(2) shall not rely on any judicial decision involving any issue referred to in paragraph (1).

The effect of which is, functionally, to overrule Roe, Griswold, and the entirety of Establishment Clause jurisprudence as applied to the states. Devolving social issues to the states is sound anti-federalist logic, but consider the practical result. Do we really want the kind of country where New Yorkers would enjoy most and more of the freedoms they enjoy today, but Alabama could consecrate its entire state apparatus in Jesus Christ’s own name, ban non-Christians from office, forbid abortions and the sale of contraceptives, and permanently relegate its gay citizens to second-class status? We conclusively rejected a patchwork notion of liberty in the 1860s; do we abandon that, based on some distorted re-imagining of the phrase “We, the People”? Apparently so, for that part of Zuccotti Park that doesn’t know better; but for all intents and purposes, Ron Paul is no better than Newt Gingrich or Jesse Helms.

Please, let’s just stop paying attention to Ron Paul. Maybe he’ll go away.

Chief Justice Roberts’ Paean to Article III (and What It Means)

About two thirds of the way through his recent opinion in Stern v. Marshall (pdf), Chief Justice Roberts leaves the following note:

What is plain here is that this case involves the most prototypical exercise of judicial power: the entry of a final, binding judgment by a court with substantive jurisdiction, on a common law cause of action[.] If such an exercise of judicial power may nonetheless be taken from the Article III Judiciary simply . . . then Article III would be transformed from the guardian of individual liberty and separation of powers we have long recognized into mere wishful thinking.

Emphasis mine. What we’re looking at is the juxtaposition of two concepts we rarely see conservative jurists put together: the supremacy of the federal bench, and individual liberty. Stranger still, this exposition comes from a jurist who describes himself as “modest,” but in this decision, functionally invalidates large swaths of the Bankruptcy Act.  I mean none of the foregoing as criticism: rather, I think the Chief Justice is on to something. But first, some exposition.

The case is Stern v. Marshall, but you might know it as the Anna Nicole Smith case. Functionally, the late superstar’s estate won a bankruptcy “adversary proceeding” — litigation conducted before a bankruptcy court — which would have entitled her to nearly $500 million of her late husband’s estate. Her husband’s son took an appeal, arguing that the bankruptcy court was without jurisdiction to issue the award, due to an archaic (but vitally important) point of separation of powers. Chief Justice Roberts agreed, prompting him to throw out critical parts of the Bankruptcy Act.

This actually gets quite complicated: a full explanation of the decision is below the jump, which you should read  before the conclusion if you’re interested. But, feel free to skip right to the conclusion otherwise.

The “Conservative” Case for the Federal Courts

For all his pretensions to judicial modesty, Chief Justice Roberts’ opinion in Stern – which, again, I think is probably right — has a lot in common with the constitutional “activism” of liberal heroes, like the late Justice Brennan, and even some conservative heroes, like the current Justice Thomas. Here is a federal judge exercising his constitutionally-derived independence and implied power of review to throw out a vitally important statute — one that was carefully crafted by Congress, and relied upon by the broader legal system for thirty-plus years — all because it weakens the federal courts’ ability to protect the rights and individual liberties of American citizens.

This comes at a time when, and despite a conservative culture where, the federal bench is largely distrusted. Just recently, Rick Perry proposed the shockingly unconstitutional idea of permitting Congress to override a Supreme Court decision, to  positive reception in some conservative circles. And, conservatives from Jesse Helms to Newt Gingrich have long viewed the Supreme Court as a threat to “liberty” to be circumvented, not applauded.

In a sharp rebuke to that tradition, Chief Justice Roberts has stated a compelling, conservative case for the Supreme Court as a guardian of individual liberty, including a reminder of the value of independent courts in this system of separated powers. Stern should stand with Justice Scalia’s sexier dissent in Hamdi as a reminder that conservative skepticism of the value of the courts, stops at the courts.

Continue reading »

The Death of Precedent

I reject the need to talk about the debt ceiling issue today. If Republicans want to show their commitment to fiscal responsibility by forcing massive hikes to the interest on U.S. sovereign debt — and the spiraling spending it entails — let the bastards. Statesmanship, apparently, is dead. As world powers discover when attempting to negotiate with non-state terrorists, one simply cannot have a rational discussion with an opponent who’s motivated solely by ideology, and has nothing left to lose.

Now. Moving on to more interesting things…

A year and a half ago, a federal bankruptcy judge stunned most of the legal world by invalidating a term basic to most structured financial transactions: the “waterfall flip,” which provides that in the event of bankruptcy, non-defaulting junior noteholders, unlikely to otherwise see payout, receive senior status. Basically, instead of having their payout come last (if at all), non-defaulting parties get the first and therefore most likely shot at cashing out from a limited pool. It’s a way of obviating counterparty risk — but Judge Peck was having none of it. He set aside the “waterfall flip” provision, essentially holding that Lehman Brothers, the defaulting party, would never have to pay out.

Bank of New York Mellon, the party on the losing side of this… event, pledged to take it up on appeal. What followed was one of the most bizarre and delicate courtroom dances of the new century. In a series of conferences, Judge Peck refused to enter a final order declaring Lehman’s victory (a necessary predicate to any appeal), putting BNY Mellon in the strange position of begging the Court to enter a disfavorable order, just so they could try to overturn it on appeal.

This lasted months. But eventually, BNY Mellon took their appeal, and the case settled, which is probably what Judge Peck wanted all along. Expedient, out-of-court settlement is clearly best for the parties, and especially best for the bankruptcy estate.

But is it best for the law? Because of the BNY/Lehman settlement, lawyers in the nation’s busiest, most influential bankruptcy court have to deal with an opinion that, because it was never vacated or corrected on appeal, remains controlling, but is arguably (and maybe clearly) wrong. Essentially, the settlement ended the New York courts’ potential to authoritatively resolve an open legal issue and imbue it with the force of precedent. Settling benefited Lehman and BNY, but stalled the development of the law, depriving litigants and judges of the answer to an open question.

As courts get busier — and so, more willing to force a settlement, even during the appellate process — this could become an increasingly serious problem, especially if high-risk, cutting-edge issues continue to evade review.

There’s little that lawyers can do to correct what is (no doubt) an old and periodically recurring problem. Federal judges cannot issue “advisory opinions”; instead, they have to wait for a live controversy. But here’s a situation where law firms and large banks, as institutions, potentially help the machine run more smoothly. Larger firms often represent many clients, all facing similar issues; and larger banks typically engage in many superficially similar transactions. The potential for repeat transactions means both face face incentives to value predictable, settled rules of law, over expedient resolution of individual disputes. Ideally, those rules will benefit the rest of us, too.

A Word on the Casey Anthony… Thing

So you’ve probably discerned, from the slower posting schedule, that life here is pretty busy. Correct! But one side note.

I’ve not followed this Casey Anthony… thing. I take it that a young mother was put on trial for killing, assisting in, or negligently allowing her child’s death. I also take it that she was acquitted on those counts, convicted on some technicalities, and that the whole thing has become a media circus, with most people appalled that Ms. Anthony could possibly be acquitted.

Why? Outsiders know what they know of the case from what is actually hearsay, and beyond that, from snippets of the case gleaned from the press, which naturally prints (or shows) only the most sensational parts. Our legal system is built to avoid precisely the kind of decisionmaking that pundits and observers are relying on now, to convict Ms. Anthony in their minds. Unless you have watched an entire trial — watched, mind you, not read – it’s impossible to pass judgment on whether a jury reached a decision objectively, or reasonably, without fastening onto some specific quirk or irregularity, undermining the process. Those are the points appellate attorneys focus on; and they’re a far cry from the general “sense” of guilt that commentators tend to project onto Ms. Anthony, post-trial.

Questioning the product of a process that, so far, appears to have been conducted fairly, is a dangerous path to go down, and one that risks undermining the rule of law. Trials don’t always result in popular verdicts. It’s been that way since John Adams’ day. But we have to abide by the result, or challenge it within the system, not from without.

Standing, and Rights vs. Remedies

Every now and again, it’s worth looking at the worst of the worst of the healthcare suits. And Purpura v. Sebelius is definitely that. The linked page explains it’s a combination birther/tenther suit — add the “Amero” or the transcontinental highway thing for the conspiracy theory trifecta — and makes some hilarious errors, like imagining economic discrimination is a thing, and conflating it with bills of attainder. Hilarious!

Anyways, the plaintiffs’ complaint was dismissed for lack of standing. On appeal, they have a novel new argument — that the denial of standing denies their First Amendment right to to “petition the Government for a redress of grievances.” This is wrong, but novel, so it’s worth commentary.

First, and by way of noting the threshold error in the plaintiff’s logic,

Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.

Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984). The petition right means exactly what it says. Citizens may petition without facing adverse consequences. But the government doesn’t have to care.

What I think they’re getting at, though, is something deeper. Standing is one of several legal doctrines that acknowledges an extant right, but denies any remedy, equitable or legal. That’s discomforting to novices — as these plaintiffs surely are — because it’s in violation of the Marbury principle, that a remedy must exist “for the violation of a vested legal right.” But it’s the way the law works. Even Mr. Marbury lost and, dicta notwithstanding, had nowhere else to turn for relief. Not all error is reviewable, and not all rights can be vindicated in a judicial forum.

The contrary conclusion is sloppy law, and sloppier conservative philosophy. I would expect there’s some tension between expanding the judiciary’s ability to hear clearly political cases, and any notion of “judicial restraint,” but apparently that doesn’t bother today’s GOP.

The Importance of Being Earnest

Sadly, no large-scale post today, but I will explain why. When federal courts issue precedential decisions, reversing long-standing practice, they should explain why, so the rest of us know precisely what’s going on, and don’t have to stay up ’til all hours of the night guessing what, exactly, permits one court to dispose of two identical cases differently. “It is the province and duty of the judicial department to say what the law is.” I would hold that that duty is not discharged by substantially unexplained decisions.