Supreme Court

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.

Reading the Supreme Court’s Grant in the “ObamaCare” Litigation

SCOTUSblog offers full analysis of the Court’s order (PDF) granting certiorari, to which we add only limited points. First, take into consideration the length of the argument — five and a half hours, broken over several days:

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.   The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments.   (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)

Any appellate lawyer will tell you, the length of time for argument provides a reliable indication of not just how important the case is, or its complexity, but how seriously the Court regards the issues at play. As such, the record-setting argument time is properly viewed as bad news for supporters of President Obama’s historic reform. Although, on the flip side, it could just be signalling: even if the Court thought the case was a done deal, for one side or the other, could they really short-change the argument without alienating the losing faction? Especially post-Roe, the modern Court should — and does — often consider its institutional legitimacy in casting its orders. Call it the legacy of a modern Republican Party willing to cynically declare war on a coordinate branch of government, just to preserve its political relevance.

But the grants aren’t without some good news for reform supporters. The Court also took cert as to the jurisdictional question — on whether the individual mandate can actually be overturned before it ever goes into effect. And the Supreme Court also added an issue sua sponte [at its own request]:

Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).

As a threshold matter, note an error in the Court’s order. 26 U.S.C. § 7421(a) refers to the “Tax Anti-Injunction Act”; not the “Anti-Injunction Act,” a statute familiar to federal courts scholars that bars federal actions to restrain a state court proceeding, which is codified at 28 U.S.C. § 2283.  The TIAI operates as part of the jurisdictional mechanic that prevents taxpayers from suing to enjoin a tax: to challenge a potentially illegal tax, instead, prospective litigants must pay the tax, and then sue for a refund. By inserting a TIAI issue, the Court appears to openly contemplate that the individual mandate is best understood as a tax, or something sufficiently similar to trigger the policy concerns bound up in the TIAI. Taking the Court at face value, they could be hinting that the individual mandate is a tax (a position rejected by all the lower courts), separately sustainable under the general welfare clause, and that any suit against it is premature. It’s a quick way for the Court to get the case off their docket, or resolve it on objective principles not bound up in politics. Functionally, the Court would punt on the more serious question of the role of government and the scope of the Commerce Clause. And as we all know, the Court loves to punt.

Regardless, none of this changes this fundamental calculus that this is an easy case, resolved in the reformers’ favor by reference to clear precedent. I’ve just bet one of my lawyer friends $100 that the Court comes out in reformer’s favor, in some fashion, and it’s a good bet.

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.

The Supreme Court and the Failure of Practical Thinking

Monday marked the second in a series of Supreme Court decisions that — even setting aside the legal points at issue — seem to completely abandon any notion of common sense. First, per Justice Scalia, the Court finally blocked plaintiffs’ class certification in a putative wage discrimination class action against discount giant and dubious corporate citizen Walmart. The reasoning is odd: because Walmart vests its managers with wide discretion, held Scalia, individual plaintiffs’ facts will necessarily lack the requisite commonality for a class action.

This is legally wrong. Justice Ginsburg notes the doctrinal error: aside from frontloading the class inquiry to invent a per serule against certification, it’s old law that “a system of delegated discretion . . . is a practice actionable under Title VII when it produces discriminatory outcomes.” Slip Op. at 11.

It will also have far-reaching consequences. Corporate defendants may fairly read the case to hold that, by stacking the appellate record with evidence suggesting that managers have wide discretion — and regardless of whether that discretion is actually used – they can entirely avoid class action employment litigation. And, for corporate defendants, neutering the class remedy effectively terminates the right. Individual employees generally lack the resources to sue in their own right, or to attract good lawyers. Going forward, classes will have to proceed on a store-by-store basis, or not at all, and in either case, Walmart can functionally evade wage discrimination law, because it has eliminated the most efficient, and maybe the only method of enforcement.

Maybe this was the intended consequence; if not, it’s hard to justify Scalia’s overreach. Either way, the Roberts Court has made a habit of ignoring the consequences of their actions. In Harrington v. Richter, a recent decision tightening the standard for habeas relief, Justice Kennedy held that a state court may, essentially, duck federal review by simply not issuing an explained decision. The obvious result is an incentive structure where state courts are rewarded for deciding tough cases unreasonably, so long as they don’t even try to explain the reasoning. The deck was already stacked against state prisoners hoping for federal relief; now they won’t even be dealt into the game.

Last election, I emphasized the importance of putting a Democrat back in the White House, to roll back the damage already done to federal law, and preserve that which remains. Three years later, it’s still a problem, and it’s still getting worse. We need a reasonable man (or woman) in Kennedy’s seat; we need a Democrat, again.

Securities Litigation and the “Pro” or “Anti” Business Supreme Court

Looking to the Supreme Court’s recent opinion in Matrixx Initiatives v. Siracusano, No. 09-1156 (Mar. 22, 2011) (pdf), a securities litigation decision allowing a class action to proceed against the makers of Zicam, Forbes manages to conclude that the Court has (again?) bucked its pro-business slant, raising the question of whether the Court has any such slant at all.

More, says Daniel Fisher, because the Court acknowledged the fact-specific nature of the central issue in this case — whether information noting serious but not “statistically significant” problems with a company’s medical product is so important (“material”) to investors as to make its non-disclosure deceptive — then:

Once again the Roberts court shows historic deference to the role of the fact-finder, or jury, to determine when a company has broken the rule.

And so the analysis slips from the simplistic to the clearly wrong. Taking the last point first, denying a motion to dismiss just means that the issue is too complex to resolve without discovery. Not without a jury. This case could (and will) resolve long before it reaches the jury, probably on summary judgment. The disposition, then, speaks nothing to the Roberts Court’s respect for jury findings, which is historic, true, but historically bad. Recall Gonzales v. Carhart, where Justice Kennedy set aside the factual determinations of three different district courts for, essentially, their political inconvenience.

Next, while I suppose allowing a class action to proceed is “anti-business,” in a way, Matrixx does little to make securities litigation more plaintiff-friendly. Instead, Justice Sotomayor’s holding is a simple re-affirmance of a very, very old case. Twenty-three years ago, the Court in Basic v. Levinson, 485 U.S. 224 (1988) rejected any brightline rule for assessing the materiality of disclosures about preliminary merger negotiations; here, the Court simply extends that rule to a roughly analogous context. The decision’s obviousness explains its unanimity.

Because this wasn’t a hard case, it doesn’t reflect on the Roberts Court’s handling of corporate interests in close (or novel) cases. This is the more interesting question, but time and again, when presented with close or novel issues, the Court has split for corporations. Citizens United is an obvious example; but Morrison v. National Australia Bank, for killing off a large (and growing) sector of securities claims, was a real love letter to the defense bar.

I appreciate that in my day job. Really, I do. And I happen to think the Court’s decision in Morrison, per Justice Scalia, was objectively correct, and even elegant in its resolution of an otherwise unworkably complex issue. But let’s not reward a radically right-leaning Court for doing what it’s supposed to do.

Ken Cuccinelli Says Something Right

But more importantly, something courageous, by stating that Massachusetts’ version of the individual mandate is “legitimate.” This is clearly right, but leads one wonder whether the Virginia Attorney General’s view of what kind of government regulation constitutes “socialism,” at odds with “liberty,” has any rational basis. If a state mandates the purchase of insurance, isn’t that just as much of an intrusion into personal liberty? If “liberty” is coextensive with the limits of federal activity, that’s a fairly cramped definition of a fairly important word, isn’t it? If so, maybe we should stop talking about commercial regulation as a matter of constitutional life & death.

Of course, his larger point, that the individual mandate in federal garb is “the end of federalism,” remains wrong, and odd, too. There’s no contention that purposeful inactivity can’t cause as much impact on interstate commerce as purposeful activity. Given that, I fail to see why the Necessary & Proper Clause shouldn’t apply. Isn’t this exactly why we have the damn thing?

Oh! And I have an argument before the Seventh Circuit Court of Appeals today. So… wish me (and my client) luck!

The Cynicism of Constitutional “Conservatives”

Laurence Tribe flags the cynical worldview underpinning the right’s conviction that the health care litigation will be a 5-4 win, or a 5-4 lose:

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts. [....]

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.

And notes the error lurking behind the Hudson & Vinson opinions, striking down the mandate:

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decisionnot to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

This is the position we’ve always maintained (and HotAir/Ann Althouse’s points are inadequate to address the Social Security analogy). The “Obamacare” litigation is not a close case; any defeats rest on a misunderstanding of recent Commerce Clause jurisprudence (Morrison and Lopez are simply inapposite); and the action/inaction distinct is “illusory.” Our word choicer, and Professor Tribe’s. nbd.

Note, too, that many federal laws punish inaction. As one example, absent extensive, expensive, regular, and time-consuming disclosures to the Securities & Exchange Commission, the ’33 and ’34 Acts shut the doors of interstate commerce to any “issuer.” Perhaps that’s different, because Congress may condition access to federal benefits on a fairly low standard. But the distinction is almost rhetorical, as Congress could easily devise an interstate commerce-based “stick” to force citizens into paying buying insurance, or acceding to the individual mandate’s exaction. To be sure, Congress’ powers over interstate commerce are a patchwork, and do not constitute a plenary power. But where an asserted congressional power fills a gap between enumerated powers, or powers already found to be constitutional, the Court never fails to find it a “necessary and proper” exercise. This is no different.

The Central Error in Judge Hudson’s Ruling

Right-wing delight over Judge Henry Hudson’s (E.D.-Va.) ruling, holding unconstitutional the “individual mandate” provision of the Patient Protection & Affordable Care Act (pdf), ought to be short-lived. Aside from the obvious point that the Act is now only 2 for 3, Judge Hudson’s ruling is at odds with applicable law and ought to be reversed. In fact, higher courts will have no choice but to do just that.

Ken Cuccinelli’s case proceeded on the simple theory that Congress may regulate commercial action, but not commercial inaction. The latter, the theory goes, is non-economic activity, social behavior, of the sort held non-regulable in Lopez and Morrison.

This analysis is flawed. First, if we buy the action/inaction distinction, Lopez and Morrison are inapposite. These cases do not discuss how much or how little economic participation is required to make such conduct regulable; rather, they hold that non-economic activity with secondary economic effects is non-regulable. This doctrinal line is interesting, and favors conservatives, but does nothing to answer the question of how much, or how little, economic participation is required before Congress may intervene.

That question is answered squarely by the Raich and Wickard cases. In both, defendants sought to avoid the interstate commercial network, and thereby avoid congressional regulation, by containing their conduct within state borders. In Raich, defendants sought to avoid the ban on the sale of medicinal marijuana by selling it only within state borders; in Wickard, the defendants tried to avoid laws governing the production of wheat, by growing wheat only for home use. In both cases, the defendants’ intra-state commerce was held regulable for its effects on inter-state commerce.

Judge Hudson distinguishes the cases by noting that, in both, the defendants engaged in affirmative acts (page 21 of the PDF opinion):

In Wickard and Gonzales, the Supreme Court staked out the outer boundaries of Commerce Clause power. In both cases, the activity under review was the product of a self-directed affirmative move to cultivate and consume wheat or marijuana. This self-initialed change of position voluntarily placed the subject within the stream of commerce. Absent that step, governmental regulation could have been avoided.

This action/inaction distinct, however, is illusory, because Judge Hudson is looking at the wrong type of action. The cases do not take intra-state activity and generalize its effects. Rather, the rule in Raich and Wickard is that a decision with implications on interstate commerce is regulable, even if it results in no affirmative interstate act. Intrastate action or inaction is strictly irrelevant. All that matters is the decision to not participate in interstate commerce.

Appellate courts should be sensitive to the distinction; and in any event, the likelihood that the Supreme Court will strike down a major, economically based, controversial piece of legislation, something they haven’t done in seventy years, is slim. But depending on how risk averse we are, we could, and probably should, look at ways to retool the legislation, and thus moot the debate. One option is the state-by-state opt-out being debated by Congress, whereby, if a state has similar provisions for quality care, citizens may avoid the mandate. Other creative solutions exist. One judge’s decision will not be the end of this Act.

The Inscrutable Roberts Court

The New York Times issues a fair criticism of the Roberts Court. Aside from producing more fractured and grimly partisan opinions than ever before, the Court fails to guide the lower courts towards a coherent jurisprudence:

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.

With surprising frequency, the decisions show signs of simply poor politicking. Anyone with an experience in constitutional decisionmaking knows that the outcome is half of the battle: the stability of the doctrine, where egos truly come into play, is a much bigger fight, especially because the outcome is so often a foregone conclusion. Here, the Court’s recent jurisprudence suggests that Roberts, and his swing vote, Kennedy, simply cannot build workable coalitions, which are vitally necessary for the issuance of clear mandates to inferior tribunals.

The high Court’s decision in Bilski v. Kappos illustrates the problem with some poignance. Here, the Court had a choice between two simple outcomes — the patentability, or unpatentability, of abstract “business methods” processes — and Justice Kennedy, for the majority, chose neither, opting to leave the matter to the Federal Circuit. Patent practitioners (my colleagues, whose frustrations I understand despite not working in their field) should be livid. Worse, the decision shows all the hallmarks of a lost majority. Kennedy’s opinion is painfully short and opaque, as one would expect of a concurrence; Stevens’ concurrence is long, well-structured, and clearly reasoned, but with a few odd holes, as if part of it had to be changed in a hurry. Like a majority opinion gone awry. Previous Chiefs have commanded majorities by sheer force of will (NYT correctly acknowledges Chief Justice Warren’s monumental effort towards unanimity in Brown v. Board); Roberts clearly lacks that talent.

The problems deepen as the subjects get more controversial. FEC v. Wisconsin Right to Life is, as a former professor (who I shall not name but whose opinion is entitled to some deference) said, is either deliberately mendacious or fails to inform the reader of the critical distinction upon which the Court relies. Gonzales v. Carhart attempts to hide its political motivation by wading haphazardly into the complicated law of “legislative facts.” The resulting mess limits the case’s importance, except as a monument to Kennedy’s vanity. And Hein v. Freedom from Religion Foundation just… butchers the law of standing. I… ugh. I can’t. I just can’t.

Credit where it’s due: the only time the Court seems to reliably get doctrine right is when Justice Scalia is at the helm. Morrison v. National Australia Bank took the Second Circuit’s maddening jurisprudence on “foreign-cubed” securities lawsuits,* discarded clear doctrinal errors, gave the lower courts a brightline standard to employ, and closed the enforcement gap by kicking the responsibility for f-cubed regulation to the SEC, where it belongs. In response, Obama’s Congress broadened the SEC’s enforcement powers in the Frank/Dodd Act. This type of elegant two-step lawmaking shows how the branches should relate. Even Scalia’s controversial opinions at least have the decency to be follow logically. Say what you will about Heller; it’s clear how Scalia got there, and why, and no lower court can misread the analysis.

This is a problem the legal community (and its clients) will have to endure for some time. Roberts isn’t going anywhere, and with the next retirement (Ginsburg), Obama can do nothing but hold the line. But at least we get to write angry blog posts about it! Grrrrrrrrrrrrr!

* = Foreign plaintiff suing a foreign issuer over a trade executed on a foreign exchange.